Human Rights and Constitutional Democracy

Abstract

This essay reviews Professor Jamie Mayerfeld's book, The Promise of Human Rights. I am sympathetic to the broad contours of Professor Mayerfeld’s argument. Nevertheless, this essay challenges portions of his account. Part One addresses the topic of international oversight. Mayerfeld makes a powerful theoretical argument in support of his claim that increased international oversight could help strengthen human rights protections in the United States. Here, though, I think his account omits some important information and gives insufficient weight to current political realities. Part Two focuses on what Mayerfeld calls the United States’ “self-exemption policy.” In brief, this is the U.S. policy of refusing to ratify most human rights treaties and of ratifying other treaties subject to reservations, understandings, and declarations that limit the domestic effect of ratified treaties in the United States. I agree with much of his critique of the self-exemption policy. Even so, Part Two contends that there is a significant tension between the self-exemption policy and Mayerfeld’s defense of the democratic legitimacy of international human rights law because the self-exemption policy exacerbates the tension between majoritarian democratic principles and the domestic enforcement of international human rights norms.

Keywords: Human Rights, Constitutional Democracy, Democratic Legitimacy, International Oversight, Treaty Reservations