Constitutional Human Rights, Named and Unnamed

Abstract

"The foundations of American human-rights law are in bad shape. They creak, they groan for rebuilding." With these words, Charles Black justifies his effort to promote a new theory of Constitutional human rights law in the United States in a book entitled A New Birth of Freedom: Human Rights, Named and Unnamed. Black stands within the tradition of the Warren Court of the 1950's and 60's. He is an intellectual leader of a group of theorists committed to an activist jurisprudence on human rights. Commonly identified as non-interpretivists, this group of thinkers views the Constitutional outline of rights not as a limit, but as a mandate for the recognition of an evolving understanding of human rights. His efforts remind us that the controversies over activist non-interpretive constitutional adjudication, which became particularly controversial in the 1950's, and the counter movement of original intent, which raged in the 1970's and 1980's, may have receded from the headlines, but that the essential arguments and the emotional angst they generated have not gone away.

Moreover, I believe Black is correct in his assertion that existing jurisprudence on human rights is confused and harmful to our interests in protecting these rights. Efforts to justify court decisions based upon tortured readings of the 14th Amendment's due process clause make a mockery of the court's efforts. As Black puts it, "It's application follows no sound methods of interpretation...and is therefore neither reliably invocable in cases that come up, nor forecastable in result by anything much but a guess." Holdings that are not grounded in some reasonable reading of the text invite cynicism--the belief that it is not the law that is being upheld, merely "the opinion of 9 old men in Washington." Black's effort is, in my opinion, fundamentally flawed. Nonetheless, I believe that a careful review of his arguments and the critiques which may be offered against them does suggest an approach which may be more fruitful. I, therefore, start with a brief summary of Black's general theory, in which: first, he argues for the need for new grounds for adjudicating human rights claims; second, he identifies the sources he thinks are appropriate for human rights (the Ninth Amendment, The Declaration of Independence "life, liberty, and the pursuit of happiness" clause, and the Fourteenth Amendment privileges and immunities clause); third, he justifies the use of these sources against existing arguments opposing an expansive reading of constitutional human rights; and, finally, he provides an illustration of how these new sources can be applied (with the example of a constitutional right to economic assistance). I then break the theory down into its constituent elements, highlighting both the insights it provides and some of the problems it fails to address. I then use his presentation to sketch out the essential features of the two differing visions of the Court, which underlie the non-interpretist approach taken by Black and the interpretivist/intentionalist arguments commonly offered against his position. My argument is that there is merit in both positions, and I seek to outline a compromise which, while less ambitious than that supported by Black, nonetheless affirms that the Court has a constitutional role in support of unnamed human rights.

JEL Classification: K10