Universal Human Rights and Constitutional Change

67 Pages Posted: 13 Jan 2019 Last revised: 10 Jul 2019

See all articles by David L. Sloss

David L. Sloss

Santa Clara University - School of Law

Wayne Sandholtz

University of Southern California - School of International Relations; University of Southern California Gould School of Law

Date Written: February 28, 2019

Abstract

Many Americans believe that the United States has a tradition of federal constitutional protection for fundamental human rights, dating back to adoption of the Bill of Rights in 1791. That belief is mostly wrong. For most of U.S. history, protection for fundamental rights depended primarily on state law, not federal law. This article documents the transfer of regulatory authority over human rights from the states to the federal government, which we call the “federalization” of human rights. Before 1930, state governments exercised primary or exclusive regulatory authority for most fundamental rights. Federalization occurred in two phases: from 1930 to 1947 (the New Deal revolution) and from 1948 to 1976 (the “human rights” revolution). We show that the period from 1948-76 was the critical period for federalization of human rights law in the United States.

This article also examines two other processes that occurred in the same time period: the advent of modern international human rights law (the “internationalization” of human rights) and the incorporation of human rights norms into national constitutions in numerous countries (the “constitutionalization” of human rights). The power of ideas is an important factor that contributes to legal change. The period from 1948 to 1976 witnessed the global diffusion of a distinctive set of ideas that we call the “political morality of human rights.” We contend that the global diffusion of human rights morality was an important causal factor that contributed to the internationalization and constitutionalization of human rights, as well as the federalization of human rights in the United States.

Conventional wisdom depicts the United States as insulated from transnational forces that led to the global diffusion of human rights norms. This article contends that the conventional wisdom is wrong. The global diffusion of human rights morality in the decades after World War II contributed to the development of a new tradition of robust federal protection for human rights in the United States.

Keywords: human rights, constitutional change, federalism, Bill of Rights, diffusion, political morality, transnational

JEL Classification: K33

Suggested Citation

Sloss, David L. and Sandholtz, Wayne, Universal Human Rights and Constitutional Change (February 28, 2019). William & Mary Bill of Rights Journal, Forthcoming; USC CLASS Research Paper No. CLASS19-6; USC Law Legal Studies Paper No. 19-6; Santa Clara Univ. Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3309907

David L. Sloss (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

Wayne Sandholtz

University of Southern California - School of International Relations ( email )

Los Angeles, CA 90089
United States

University of Southern California Gould School of Law ( email )

Los Angeles, CA 90089
United States

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