The Commission on Unalienable Rights Report, Human Rights, and U.S. Foreign Policy

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at www.fedsoc.org.

 

 

Dean Reuter:  Welcome to The Federalist Society's Practice Group teleforum conference call as today, July 31, 2020, we discuss “The Commission on Unalienable Rights Report, Human Rights, and U.S. Foreign Policy.” I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed and posted on The Federalist Society’s website.

 

      We’re very, very pleased to welcome two guests to our program today. We’re joined by Professor Robert P. George. He’s the McCormick Professor of Jurisprudence at Princeton University and Director of the James Madison Program in American Ideals and Institutions. We’re also joined by the Chairman of our Religious Liberties Practice Group, William Saunders. He’s a Professor at the Catholic University of America where he’s also Director of the Program in Human Rights and Co-director of the Center for Religious Liberties.

     

      We’re going to have some back and forth opening remarks from our guests, and then, as always, questions from our audience, so please have those in mind for when we get to that portion of the program. With that, Bill Saunders, the floor is yours.

 

Prof. William Saunders:  Thank you, Dean. And thank you to The Federalist Society for hosting this call. And thank you to Robert George for joining it. We’ll all benefit from hearing from one of the thinkers on these topics.

 

      I want to just start by telling everyone, if they haven’t done so, that the Commission’s report, the Commission on Unalienable Rights, is available at the State Department webpage. There’s also a video of the conference where this report was delivered a week ago at the Constitution Center in Philadelphia. It would reward your attention to view those things and to read this report.

 

      I want to take a few minutes just to summarize the report a bit and put it in a little bit of context for those of you who may not have heard about the report. Media hasn’t covered it as much as it should. Secretary of State Mike Pompeo chartered this Commission and asked it to perform a specific purpose, which is to advise him as Secretary of State, give him advice on the promotion of individual liberty, human equality, and democracy through U.S. foreign policy.

 

      The Commission was chaired by quite imminent human rights scholar Mary Ann Glendon of Harvard Law School. And in the preface to the report, she makes some general comments about why this was so necessary, which I’ll share with you briefly. She noted several reasons that the human rights project, which emerged after the Second World War, seems to be faltering or is faltering quite severely.

 

      One is the rise of certain authoritarian or autocratic states that oppose the idea of human rights, particularly civil and political rights. An example, of course, is China. She also mentions, I’m quoting, “the widespread disagreement about the nature and scope of basic rights, disappointment in international organizations, and overuse of rights language.” She notes that half of the world’s populations live under regimes that do not recognize basic human rights. And she notes there are threats from some of the new technology, the artificial intelligence technology and other things that, in places like China, are being used to monitor its civilian population.

 

      In an op-ed that The New York Times refused to publish but which was published by The Hill, Professor Glendon concludes that, and I’m quoting again, “The Commission’s principle conclusion is this: The United States must remain strong in promoting the principles that have enabled free societies to achieve, in the words of the U.N. Charter in the Universal Declaration, better standards of life and larger freedom,” end quote.

 

      Continuing quoting her, “A major purpose of the Commission’s report is to strengthen the intellectual defense of the post-World War II Human Rights Project in the face of new and growing threats to human freedom.” As some human rights organizations have noted, the broad international consensus that once supported the core set of rights in the Universal Declaration is increasingly fragile. China and other nations are promoting an alternative vision in which national priorities prevail over the rights of speech assembly and free elections.

 

      She concludes, “The human rights idea played a crucial role in the  movements that led to the demise of apartheid in South Africa, the toppling of totalitarian regimes in Eastern Europe, Soviet Union, and others,” — Remember the Berlin Wall? That’s mine. I add that. — “and the decline of military dictatorships in Latin America. Now is not the time to step back from a foreign policy that serves vital American interests while promoting American ideals,” end quote.

 

      And that brings me to the two sources of rights or rights discourse that the Commission was asked to consider. One is the American tradition of the Declaration and the Constitution, etc., and the other is a document I’ve mentioned a couple of times, the Universal Declaration of Human Rights. So the Commission was asked by the Secretary of Defense to provide advice on how human rights rooted in these two sources, what role human rights should play in U.S. foreign policy. And the Secretary asked for that because of all that was going on, as I recounted at the beginning, that seems to put the human rights project in serious question as to whether it will continue and seemed to confuse people about what human rights are.

 

      One of the issues noted by the Secretary as well as Professor Glendon of the Commission is a proliferation of rights claims. So the aim of the Commission and the Secretary was to get back to the roots of what human rights are. This is, again, for the American Secretary of State. What are the roots of human rights ideas and how should we take that into account in U.S. foreign policy?

 

      I’ll have more to say about the Universal Declaration as we go on, but now I would just like to begin my conversation with Professor George by asking him what he thinks about a phenomenon that did accompany the release of this report which was that it was attacked. And in fact, the Commission, before it released its report, has been attacked since it was announced by a number of voices in society. So how is it that a report that simply seeks to root our reflection in the sources of rights has become so controversial? Robbie, let me turn it over to you for that.

 

Prof. Robert George:  Very good. Well, let me say a couple of things first, Bill. The first of the two things is just what a pleasure it is and how grateful I am to be participating in an event sponsored by The Federalist Society. I was not among the founders of The Federalist Society, but I have admired the Society from the very beginning and got involved in it fairly early in my own career once I began teaching philosophy of law and related subjects at Princeton. And I’ve watched with even greater admiration as the Society has had such a wonderful impact on legal education in particular, but also in the practice of law and on the courts. So it’s just always a joy to be cooperating with The Federalist Society as it continues to prosecute its critically important mission.

 

      And second, Bill, at the risk of flattering and embarrassing you, how great it is to be having this conversation. You and I met back in the Middle Ages when we were students together at Harvard Law School. That’s a long time ago. And we’ve worked together over the years on so many important issues, trying to defend persecuted people of all faiths all over the globe, standing up for the sanctity of human life, for marriage and the family. It’s just been one of the delights of my life to work with you, and here we are working together again on this call talking about the vary important report that of the Glendon Commission.

 

      Now, to get to your specific question, why the negative reaction from some circles to the report? Well, remember, Bill, that there was a negative reaction to the announcement that there was going to be a commission in the first place. The so-called “human rights establishment,” I would put those words in quotation marks, the big groups with human rights in their names, people who purport to speak on behalf of human rights in the world of activism and in higher education, reacted very negatively.

 

      In part, that’s because the Commission was chartered by Mike Pompeo, who’s working for the Trump administration. And obviously, that’s going to create a lot of heartburn, cause a lot of heartburn for the human rights establishment, but also because they recognized that Pompeo’s view of human rights was different from theirs in some significant respects.

 

      Now, let me get to that. And when I say Pompeo’s view, it’s a view that Pompeo shares with lots of people who don’t buy into the human rights establishment’s vision or understanding of human rights. I said I put the term “human rights establishment” in quotation marks for this reason. What we’re talking about here, really, is the leadership of the contemporary progressive movement. And it’s no news -- I’m not breaking any secrecy to say that the contemporary progressive movement has put at the top of its political agenda social issues and the advancement of the cause of social liberalism: abortion, same-sex marriage, and other sex related issues, transgenderism, drug legalization, prostitution legalization, the whole social liberal agenda.

 

      And then, of course, the strategy of the progressive movement has been now for many years to advance its cause not in the name of social utility or not in the name of some other substantive goal but rather in the name of human rights. So abortion has been styled as a human right. Same-sex marriage, a human right. Prostitution, they now want to alter the language and force you to call it sex work — evidently, they think that puts a more positive spin on it — is a human right, and so forth and so on.

 

      And of course, they knew that a commission chaired by Mary Ann Glendon, the magisterial human rights scholar, no quotation marks, the magisterial human rights scholar at Harvard Law School would not be one that buys into the concept of selling the whole progressive social agenda under the label of human rights. She regards that as I regard that, and as Mike Pompeo, I assume, regards that, as a misappropriation of the concept of human rights and misuse, indeed, an abuse of the concept of human rights.

 

      So you have these two competing visions, these two competing philosophies. You’ve got an ideological divide here. And those who had assumed, I think, that they had something of a monopoly on the right to speak in the names of human rights were naturally offended that their vision of human rights was not given priority here.

 

      It was not directly attacked, which is sort of interesting. The Glendon Commission could have taken them on, but it elected not to. In fact, it avoided, barely even mentioning except to explain why they were avoiding, the hot button issues that have been at the heart of the secular progressive agenda, and which have, in fact, been prosecuted by progressives in the name of human rights.

 

      It simply said that on the Commission itself as well as in society, there’s no consensus. People have different views about abortion, same-sex marriage, and other issues of sexual morality and sexuality, these other social issues, and lacking the consensus, either as a social fact or in the U.N. Declaration or in the Declaration of Independence, which were the major sources, according to the Commission, for understanding of human rights, the best thing to do is simply to lay those things aside and go to work in deepening our understanding so that we can better promote in our domestic and especially foreign policy the ideals of human rights that are embodied in the American consensus in the U.N. Declaration of 1948 and in the Declaration of Independence. So I think, Bill, that’s what explains it.

 

Prof. William Saunders:  Yes. One thing that’s very valuable for this report is for me personally because I have a program in human rights at Catholic University here in D.C., and so this document will be something that we will study and reflect upon with my students, really, from now on. I think it gives you a great opportunity to look at some of these questions, even though, like you said, they don’t take them on directly.

 

      But they do -- for instance, there’s a section in here where they talk about what if somebody proposes a new right. How should the Secretary of State think about that because, remember, the report is to aid him in the formulation and execution of U.S. foreign policy. And some of the things they say -- just let me mention a few of them because I think this shows -- it illustrates what I think, and as the Commission thinks, is an appropriately not cautious, but not overly cautious, properly cautious approach to finding new rights because if you proliferate rights to too great an extent, you can’t get anywhere because people are simply shouting rights at one another.

 

      But it just says is our foreign policy -- is the new right rooted in our founding principles? Is it consistent with our constitutional norms? Is it rooted in the universal principles of the Universal Declaration? Does it represent a consensus across different traditions and different cultures, as the Universal Declaration did, or is it merely partisan or ideological? So I think that gives a good framework for thinking about rights because one of the things the report talks about is that we’ve gotten in kind of a mess because people just assert things as rights and they don’t make careful analysis of principle to decide whether or not whatever’s purported could be a right.

 

      And so in that context, Robbie, I just want to mention one thing they said and have you reflect on in. In the report, it says the most fundamental distinction about rights is between unalienable rights and positive rights. So this was the Commission on Unalienable Rights. And it says unalienable rights are sometimes referred to as natural rights in the Foundation Era and today commonly called human rights.

 

      So is that where the listener to this call and other people should start in a reflection on rooting this rights analysis in natural rights, or in the Founding Era’s idea of natural rights? Or what are your thoughts about the use of the unalienable rights language?

 

Prof. Robert George:  Well, the language, of course, is from the Declaration of Independence. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness,” a non-exhaustive list. “Among these,” that implies that there are others as well.

 

      And then the question is how do we go about figuring out what others there are, and how do we go about specifying the ones that are, in fact, mentioned? What does the right to liberty mean? Is it the kind of pure libertarian utopian idea of a right to do whatever you want so long as it doesn’t do immediate palpable harm to somebody else, or is it a different conception of liberty?

 

      Now, of course, people who know the history realize that the American Founders, when they referred to liberty, contrasted it with something else that they called license. Liberty was not simply the freedom to do whatever you want without constraint. The Founders did not want liberty to degenerate into licentiousness. So liberty meant the pursuit of honorable ends,  making our choices among the vast range of responsible, upright, virtuous things to do or that can be done.

 

      The Glendon Commission, and of course, this reflects Professor Glendon’s own thought, has taken as its model the U.N. Declaration of 1948, its model for proceeding. And of course, Professor Glendon literally wrote the book on the Declaration of 1948, of the framing of the Declaration. The book, a famous book, is called A World Made New.

 

      And there, she talks about Eleanor Roosevelt’s chairmanship of the drafting committee, of the role of the various intellectuals and statesman who participated in the drafting, the great Lebanese statesman Charles Malik, the French scholar Cassin, the Chinese Confucian intellectual P.C. Chang, and others.

 

      If you read her book, you’ll see that the U.N. Declaration sought to find a consensus across the various traditions: Jewish, Cassin was Jewish; Christian, Malik was Christian; Confucian, Chang was Chinese and Confucian. There was a person from the Hindu tradition, Mehta was his name. I believe there was a Muslim scholar involved. The various traditions were represented there. And the thought was we need to find and identify as rights principles, principles of justice, that are shared across the traditions.

 

      Now, that doesn’t mean that we all have the same account of those rights or those principles. Different traditions, secular or religious, will provide somewhat different accounts. The accounts may overlap in some ways, just as the principles overlap. But in other ways, they’re going to vary. So the decision was made early on not to try to come up with the shared justification for these rights but to draw on the resources of the various traditions in order to find a consensus.

 

      And here, we find in the Glendon report among the things that we look to to try to be rigorous in evaluating claims of rights, especially proposals that something previously not recognized  there’s a sharing across the great traditions of thought against secular and religious, whether we’re talking about the thought of Greek philosophers, the Roman jurists, the Medieval Muslim scholars, the Hindu tradition, the Confucian tradition, the Christian tradition. Let’s look to see if there’s a place for this, if there’s a justification — it doesn’t have to be the same justification — but a justification for this proposed right that gives it a consensus status across the traditions.

 

      If you look at the personnel on the Glendon Commission, it’s very interesting and impressive; of course, Glendon herself as chairman. You’ve got Hamza Yusuf Hanson, our leading Islamic Republic intellectual in the United States; Jacqueline Rivers of Harvard, a very important African-American sociologist and African-American studies scholar; Meir Soloveichik, probably the leading Jewish intellectual and Rabbi of his generation in the modern Orthodox Jewish community.

 

      The great human rights activist Katrina Lantos Swett, herself from a Jewish background. Her father was Tom Lantos, who was a notable human rights figure in the United States Congress, the only member of Congress in history who was a survivor of the Holocaust. And Katrina herself, although of a Jewish background, is a member of the Latter-day Saints faith. She’s a Mormon.

 

      Paolo Carozza, a legal scholar from Notre Dame University, a notable Catholic; Peter Berkowitz, a Jewish scholar who’s also a very important political theorist; David Tse-Chien Pan, a secular philosopher, editor of Telos magazine, from a Chinese background. You have this wonderful diversity of traditions of thought represented. Some of these folks are religious; some of them are secular. Again, you see Professor Glendon trying to replicate the manner in which the U.N. Declaration of 1948 was done.

 

      Now, final point, Bill, on all this. Glendon does not try to root the principles of this report in a single tradition, whether it is the tradition of natural law, the tradition of civic republicanism, the Enlightenment tradition, the natural rights tradition. Rather, again, like the U.N. Declaration, she’s looking at the various traditions that provide sources, serious traditions of thought about these things, East as well as West, and trying to see what can be usefully taken from these traditions, looking, again, for rough consensus.

 

      So she invokes, or they invoke, the commissioners together, invoke the civic republican tradition of ancient Rome, the natural law tradition of the Catholic Middle Ages, the natural rights tradition of the Enlightenment and the American Founders, noticing, by the way, that these traditions are not traditions that are hermetically sealed off from each other; quite the contrary. There’s tremendous overlap, and some of them heavily influenced others.

 

      The Catholic natural law tradition of the Middle Ages -- which I should say also is not simply Catholic. There have been many people in that tradition who’ve been of other faiths. But the natural law tradition was obviously fed by classical thought. The roots of Thomistic, for example, natural law theory are in Aristotle. That’s clear to anybody who looks at what’s called the Treatise on Law in Aquinas’s Summa Theologiae. If you look at the American Founders so-called Enlightenment tradition, they’re drawing on not only the classical tradition but also the Medieval tradition. The idea that there’s something radically new when it comes to at least the American version of Enlightenment thinking about justice and rights is just false.

 

      You’ll recall, Bill, the words of Jefferson himself, the draftsman of the Declaration of Independence responding in 1823 to an inquiry from Henry Lee. And in Jefferson’s letter to Henry Lee, he addresses Lee’s question, “Well, where did you come up with the ideas for the Declaration of Independence?” And Jefferson responds by saying they represent the sort of common sense of the American people, the common wisdom of the American people, which is itself rooted in the great books of the philosophy of right or the theory of right, the theory of justice. And then he cites not only Enlightenment figures like Locke and Sidney, but he goes all the way back to figures in antiquity such as Cicero and Aristotle. And he was right to do that.

 

      The idea that these are hermetically sealed off traditions, one has nothing to do with the other, you’ve got to pay your money and take your choice, you’re either an Enlightenment liberal or a Medieval natural law person or an ancient civic republican. That’s just a mistake to think in that way, and it’s good that the Glendon Commission did not think in that way. They followed the good example here of the American Founders themselves, as well as the people responsible for the 1948 Declaration from the United Nations.

 

Prof. William Saunders:  Yes, thanks Robbie. I think that -- I just want to mention before we go to questions that as we’ve been talking about, there’s a lot of streams of thought about rights that are involved here in accord. But the two things Pompeo said in particular to think about was the American tradition and the Universal Declaration. And we’ve just been talking about how there’s a lot of input into those two traditions.

 

      And I want to say just a few sentences about the Universal Declaration because some of our listeners may not have any familiarity with it at all. I’ll be very brief, but just to give you a sense of it and why it was considered important because some of our listeners may wonder why do we -- we have a great constitutional tradition here in the United States. Why would anybody, including Secretary Pompeo, care about the Universal Declaration?

 

      Of course, obviously, the Universal Declaration was issued by all the nations or by a unanimous vote at the U.N. three years after it was formed. So it is a kind of standard that the rest of the world is supposed to try -- well, not just the rest of the world, the U.S. and the rest of the world. As it says itself, it’s a standard of achievement. So it’s irrelevant for Secretary of State in particular for consideration since we’re going to be dealing with -- and he wants this to help American diplomats in their dealings with other countries. So I just want to mention two or three things about it quickly, and then we’ll turn it over to questions.

 

      First, the first paragraph of its preamble I think roots this in -- or shows why it’s important. And I’ll just read that first paragraph. “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world…”  I’ll go just a little further, the second preamble. “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind…”

 

      So the Universal Declaration is a declaration from the nations gathered in the United Nations in 1948, following, of course, the incredibly devastating Second World War in which estimates are as many as 50 million non-combatants were killed. And we’re all aware of the horrible things like the concentration camps, the Holocaust, the experiments that were done on prisoners in Asia by the Imperial Japanese Army as well, the firebombing of cities, the killing of innocent people. So with that scale of destruction and the whole world’s economy wrecked, at least for a moment, the world tried to think how to avoid it in the future. And as they say in this Declaration, it’s essential to respect human rights if we want to have peace in the world.

 

      So Dean, with that as a framework, I think we’re ready to open it up for audience questions.

 

Prof. Robert George:  Bill, before we do that, can I just say a couple of things? So one, if you’ll forgive me, Bill, I want to slightly correct you. And then I want to, at the risk, again, of embarrassing you, flatter you, the first little correction was that it wasn’t quite unanimous when it came to confirming in the United Nations the U.N. Declaration of Human Rights of 1948. Eight member states abstained. They were the six Soviet Bloc countries, plus Saudi Arabia, plus South Africa. They didn’t quite openly oppose, but they did abstain. They didn’t join to make it unanimous.

 

      And then the other thing I wanted to say, you mentioned earlier the program in human rights that you direct at Catholic University. There are a lot of people who are interested in human rights, and there are human rights programs all over the country, but I really do regard yours as the best. And the reason is that a student can go to your master’s degree program at Catholic U on human rights and get a broad education in human rights where the dice are not loaded in favor of one theory or another. You can learn the competing accounts. No ideology is shoved down anybody’s throat.

 

      There’s a small “c” catholicity to your program, which I find very admirable, which is also the reason why your students are not just Catholics, though I know Catholics are welcome there, too — it is the Catholic University of America — but also non-Catholics, and not just people on the conservative side of the spectrum, but also people on the progressive side of the spectrum who can seriously study the competing perspectives. And we need to recognize there are competing perspectives, as the report itself indicates, on the nature and scope and meaning of human rights.

 

      With that, I’m happy to go to questions.

 

Dean Reuter:  Terrific. I will interject by thanking both of you to this point. These are great insights. To our audience, turning right here to Washington D.C., area code 202. Go ahead, caller.

 

Caller 1:  Yes, thank you. Very interesting discussion. Give me an example of a practical application in foreign policy. And then we have the U.N. Commission on Human Rights, which is a joke. We have major obstacles to human rights from the most powerful countries that are outside of Europe. Give me an example of how our Secretary of State thinks he could use this document to advance foreign policy?

 

Prof. Robert George:  Very good. So one of the things that the document itself does is note the failure of international institutions. Now, no one expected it would be easy, and international institutions are not given the right to enforce the provisions of the U.N. Declaration of 1948. The provisions are presented as standards for the evaluation of conduct, not as establishing a world government, not as giving international institutions enforcement power.

 

      But if you look at international institutions and including those, maybe perhaps especially those that are charged with the task of advancing human rights, not only have they failed; often, they have been corrupted. They are embarrassing. We’ve had the U.N. Human Rights Commission chaired by some of the worst offending nations when it comes to human rights.

 

      So your language of a joke is not too strong. Human rights have, in some cases, become a sort of joke because of the incompetence and corruption of international organizations that are supposed to be in charge of advancing the cause of human rights, even though they don’t have enforcement powers as if they were parts of some sort of world government.

 

      Now, on the other hand, I think what Secretary Pompeo is looking for is something like this. Previous administrations have had more or less success in foreign policy advancing a human rights agenda. That was a big part of the Reagan agenda, bringing down, ultimately, the Soviet Union and the Soviet Bloc and European communism by supporting human rights activists such at the Solidarity Movement in Poland, such as Václav Havel’s movement in Czechoslovakia, and so forth.

 

      We’re looking for ways in those administrations to advance the human rights cause through the use of U.S. foreign and diplomatic policy. And there’s a story there that can be told. Some of the heroes include Jeane Kirkpatrick, “Scoop” Jackson, Henry Jackson, the Democratic senator, I believe, from Washington State, people like Daniel Patrick Moynihan at the United Nations and others.

 

      In 1998, the Congress of the United States in the name of human rights, and indeed, in the name of one of the human rights that is lifted up as among the most central in this report, that is, religious freedom, in the name of religious freedom, Congress established — this was during the Clinton administration — that the Republicans and Democrats finally were able to agree to establish a U.S. Commission on International Religious Freedom whose goal was to be the internal lobby to press for U.S. foreign policy to at least try, where possible, consistent with other U.S. objectives, to advance the cause of religious freedom in nations around the world. I had the privilege of serving on that Commission myself from 2012 to 2016, including two years as Chairman of the Commission.

 

      And the tools that that Commission in working with the State Department had available to it, and have, continues to have available under the statute are the ability to suggest to the State Department marking particular nations on the basis of research done by the Commission as countries of particular concern, CPCs, which, when so marked, subjects them automatically, unless there’s a waiver by the administration, to certain diplomatic and economic sanctions.

 

      Now, when you’re doing this kind of work, and I can tell you from practical experience, and I know that Bill Saunders has been close to the Commission, so he knows this as well, you realize that you’ve got a lot of competition. We were the internal lobby working for human rights, especially religious liberty, within the government, but there were also competing lobbies.

 

      There was the economic lobby, the trade lobby. They weren’t so keen for sanctions to be imposed on nations, especially where there was money to be made, like in the case of China, in trade with those nations. There are the geostrategic and military concerns. There’s a military lobby that’s always interested in making sure that we’re keeping our allies happy, especially if, as in the case, for example, of Pakistan, you need the country’s cooperation as a staging ground for military operations, say, in Afghanistan or something like that.

 

      Now, I’m not saying that trade interests and economic issues aren’t important. I’m certainly not saying that military issues are not important. I’m just saying that those lobbies are going to be there no matter what. Because the statute exists and the Commission exists, there will at least be a lobby lobbying for religious freedom. And we were able to do some good. We didn’t change the world. Still, the bulk of the world’s population, probably about 75 percent, live under regimes that in one way or another offend against fundamental religious freedom.

 

      But we were able to make some progress with some nations with pressure when the State Department would cooperate. It wouldn’t always do so, but when it did, we eased the burdens to some extent on persecuted people in places like Burma, Vietnam. Didn’t have a whole heck of a lot of luck with China, I have to say. Saudi Arabia, we were sometimes able to get, for example, Ahmadi, Ahmadiyya prisoners, persecuted people from a Muslim minority sect, out of jail where they were being held for purely political or religious reasons in Saudi Arabia.

 

      So there are some success stories. They’re small, but when it’s your family or it’s you who are being persecuted, it really matters. And I myself have to say that I favor the use of what apparatus we have, what resources we have to advance human rights, properly understood, in our foreign policy. Bill, you should probably say a word about that. You know as much about this as I do.

 

Prof. William Saunders:  Well, I don’t think that -- you’re too kind. But I appreciate what you just said here about the subject. The one thing I would note in particular about religious freedom is that that is obviously -- we all know in our Constitution, the Bill of Rights, it’s one of the premier rights, but it is also strongly protected in the Universal Declaration. So it makes sense for -- there was a law passed about 20 years ago that made international religious freedom issues part of U.S. foreign policy, as Robbie mentioned.

 

      And as he mentioned, we've done that before with things like the Soviet Union, and we should probably be doing even more so now with China. China is probably the chief state that is certainly the most powerful state that is pushing against the idea of any civil and political rights. And U.S. foreign policy is going to have to engage it.

 

      And I think my understanding is what the Secretary was hoping for with this report was a renewing and a strong intellectual defense of the human rights project so it wouldn’t get bogged down in extraneous concerns but could talk about the human rights, the essential, core human rights.

 

Prof. Robert George:  It’s always going to be messy. It’s always going to be partial. It’s always going to be less than satisfactory, and we’re always going to be frustrated in the end. But we do what we can.

 

Prof. William Saunders:  Right. And you know, as you said, Robbie, again, and as Glendon or as the Commission itself notes in its introduction, there have been successes. Now is not the time to pull back. After successes against the demise of apartheid in South Africa, the totalitarian regimes of Eastern Europe, and some of the dictatorships that were existing in Latin America, human rights advocacy can make a difference.

 

      And I can tell you also, just for listeners, I have worked with the Catholic University of America. We have some very prominent dissidents or democracy advocates who have escaped China and who are in the forefront of advocacy for civil liberties and human rights in China itself. And they are people who have been inspired by American ideals.

 

      One thing that is noted, again, in the Commission report is that America and the ideals embodied in the Declaration and in the Constitution have inspired people and still inspire people from all around the world. And they look to America for leadership. So I think the purpose of the report is to help America to live up to the hopes and aspirations of those that look to it for guidance.

 

Prof. Robert George:  I once heard someone -- Dean, if I can just very quickly say --

 

Dean Reuter:  -- Please, go ahead.

 

Prof. Robert George:  I once was testifying, actually, in Congress next to a former Soviet dissident who told the congressional committee that when he was in jail, the most heartening and uplifting thing that he could conceive of happening happened, and that’s when somehow the word got to the prisoners that the American President, Ronald Reagan, had called the Soviet Union an evil empire.

 

      Human rights advocacy can make a difference. We saw it with the fight against Communism, the long twilight struggle against Communism, overthrowing some of the most atrocious totalitarian regimes that have ever existed. So I don't think we want to give up on the idea of human rights. I think Glendon and her Commission are right and Pompeo’s right to try to keep the flame alive, as disappointing and frustrating as it is.

 

Dean Reuter:  Just for the callers’ benefit — this is Dean, by the way — we did host -- as this report emerged, we hosted a teleforum conference call with Secretary Pompeo on July 10. That has been turned into a podcast which is available on The Federalist Society’s website, www.fedsoc.org. So if you’d like to hear the Secretary’s own views on the report, those are available on our website.

 

      Today, of course, we’re speaking with Professor Robbie George and Professor Bill Saunders. If you’d like to ask a question, push the star button, then the pound button on your telephone. We’ve got about 14 minutes left, three questions pending. So without further, let’s turn to our next caller.

 

Tom Getty:  Hi. This is Tom Getty in California. Could you elaborate on the meaning of dignity or human dignity? We don’t seem to use it so much, but the Europeans seem to use it all the time, mention vivre dans la dignité. What does it mean, and can it mean economic equality that everybody has a right to be free from economic need? I’d be very curious in your answer. Thank you.

 

Prof. Robert George:  It certainly doesn’t mean economic equality. At least, I don't think it means economic equality. I suppose socialists would suppose that it does mean economic equality. What it means fundamentally and what I think everyone should be able to agree it means, from the libertarian to the socialist, is that human beings are equal in their fundamental worth as human beings. That is, we have a certain worth, a certain value, a certain dignity, not in virtue of our strengths, intelligence, beauty, social standing, influence, skill, but simply in virtue of our humanity. It’s the thing that Jefferson was referring to when he talks about all men being created equal.

 

      This means that, let’s say, a cognitively disabled child who will never achieve a mentality beyond that of a typical, say, seven or eight year old, nevertheless is equal in worth to the greatest athlete, the most beautiful actress or model, the greatest physicist. It would be wrong, therefore, outrageous, let’s say, to harvest, let’s say, a heart or other vital organ from the cognitively disabled child in order to save the life of the great athlete or the actress or the great physicist. That’s what we mean by dignity.

 

      It’s captured in the biblical traditions in Judaism and Christianity in the idea that man is made in the very image and likeness of God. That means that, as different as we may be, as unequal as we may be in wealth, in status, in social status, that is, in beauty or intelligence or strength or whatever, as different and unequal as we may be in the basic worth, that’s what dignity is. That’s what it means.

 

      Now, what follows from that? That’s another story. A socialist would say, “Well, if we’re fundamentally of equal worth, the disabled child is of equal worth to the physicist or the actress, then shouldn’t we all have equal income or equal wealth?” The libertarian’s going to say, “No. We should have equal liberty and equality of opportunity, but not equal outcomes. People make different choices. People use their abilities differently. The natural differences in ability don’t give us reason to take from one person and give to another.”

 

      And then, of course, there’s a spectrum between the libertarian and socialist or collectivist extremes. And most of us are somewhere in the middle in that spectrum. They will be familiar, of course, with the tradition of Catholic social thought which rejects both of those extremes, the libertarian extreme and the collectivist or socialist extreme.

 

Dean Reuter:  Professor Saunders on this point?

 

Prof. William Saunders:  No, that’s good.

 

Dean Reuter:  Very good. We’ve got two questions pending. Maybe we’ll get to both of them. Let’s see.

 

Caller 1:  Yeah, I got cut off earlier. I wanted to ask about the, excuse the word, propaganda value of this. The Voice of America has recently been reenergized, I hope, under Tom Pack. Is there any thought about publishing this for distribution and use through the Voice of America and other information outlets for the United States?

 

Prof. Robert George:  Well, I certainly share your high opinion — it’s actually Michael Pack — your high opinion of Michael Pack. And I’m sort of scandalized that it took two or two and a half years for him to be confirmed. He’s a person of extraordinary ability and achievement, and the effort to depict him as some sort of ideolog or even as venal was really beneath contempt. So I was glad that he was finally confirmed to lead Voice of America, and I’m sure he’s going to a great job there.

 

      I’d be very surprised if Michael did not pick up on this report in order to share it with as much of the world as possible. There are people who are being persecuted and who are suffering for their beliefs, whether secular or religious, for their class or race, who need to hear that the United States still stands behind human rights, and that by human rights, they mean what is traditionally been meant by human rights, not some new progressive social liberal lifestyle agenda, but the fundamental rights of the Declaration of Independence and the Declaration of 1948 of the United Nations.

 

      This is inspiring to people. It’s uplifting to people. In my experience chairing the U.S. Commission on International Religious Freedom, I would often talk to diaspora groups and sometimes to people who came to us as persecuted people from other countries who would tell us just how important what you call the propaganda, the talk is, how important it is to them, to the people who are suffering, to know that people in the United States know about them, and have not lost sight of them, and are aware of their suffering and their persecution, and are looking for ways to try to bring pressure on offending regimes to do something about it.

 

      So yes, Michael Pack needs to get this message out. I’d be very surprised if he didn’t. And you’ve given me such a good idea. I’m going to be in touch with Michael Pack and ask him if he is doing it. And if he’s not, I’m going to certainly advise him to do it.

 

Dean Reuter:  Professor Saunders?

 

Prof. Robert George:  Do we have time for the other question? Oh, sorry, Bill. Go ahead.

 

Prof. William Saunders:  That’s okay. No, I agree with that completely. I agree with that completely.

 

Dean Reuter:  Terrific. We still have two questions pending, so go right ahead, caller.

 

Robert Barker:  Hi, Dean. It’s Robert Barker in Atlanta calling. I was interested -- the report also makes the difference that -- and is the report trying to get at there’s something different than human rights when they talk about unalienable rights because it makes the point that the real conflict in human rights was created right after the Declaration of Human Rights when the U.N. came up with the two covenants, the Covenant on Civil and Political Rights, which the U.S. backed, and the Covenant on Economic, Cultural and Social Rights, which the Soviet Union backed and most of those countries that abstained from the initial vote that was mentioned earlier.

 

      And in that regard, it seems like human rights these days have moved away from the civil and political rights and toward the other extreme, or to just making it all into some sort of mush as to what rights are to the individual and what rights are not. And while we kind of beat the Soviet Union with the -- by virtue of the Cold War, we think we did, doesn’t the surviving of the economic, cultural, and social rights as a major agenda in the human rights provision mean that we really lost the Cold War?

 

Prof. Robert George:  Interesting question. Wesley Hohfeld, the great Yale legal scholar --

 

Robert Barker:  -- I was going there.

 

Prof. Robert George:  Were you going there? Yeah?

 

Robert Barker:  I was. I was wondering. My second question would be is Hohfeld even taught anymore?

 

Prof. Robert George:  Well, he is by me. I can tell you that for sure. A couple years ago, I was teaching, as I have on a number of occasions, at Harvard Law School. And on this occasion, I was teaching jointly, as I have a couple of times with Adrian Vermeule. And when we got to this topic of rights, the first thing I did was put Hohfeld’s scheme of rights up on the blackboard. I almost never use a blackboard in my teaching or any kind of visual aids. You wind me up and I talk. That’s the kind of teaching that I do. But on this occasion, I used the blackboard to outline Hohfeld’s theory. And I was surprised. There we are at Harvard Law School, all second and third year students, and I don’t think a single student in the class had heard of Hohfeld, had not been introduced to them in their courses up to then.

 

      So it’s a really interesting question. Why not? We need to bring Hohfeld back. I can’t think of anybody who’s done more to elucidate the very concept of rights and distinguish the various senses in which we use the term rights. There’s nobody who’s done that as well as Hohfeld has. So time to bring him back.

 

      And if we do, I think we can shed some light here. Hohfeld noticed that people tended to talk about human rights as if they were two term relations between a person as subject matter, your right to free speech, my right to freedom of religion, or your right to equal income, or my right to education or healthcare or whatever it is. Now, we can debate about whether there is a right to free speech, whether there is a right to healthcare, what that means, and so forth, but they think about them as two term relationships.

 

      Hohfeld advised us to think about them as three term relationships; that is, relationships between the subject matter and two persons, not just one person and the subject matter. You can’t think rigorously about rights unless you figure out who owes who something as a matter of right. Even if the question is, is there a right, in order to test the question, we have to know what the proposition is, what’s being proposed here. If we say people have the right to private property, who is it that is supposed to owe something to somebody else? Or if we say somebody has the right to education, who is it who is supposed to provide that?

 

      I think one important thing to notice, and the report hints at this more than says it, but it’s pretty clear it’s the direction that the report is going, the Glendon report, that we mustn’t think that because something is a right under the social and economic rights or is identified as a right that that means that it’s required that the government provide the thing, that the government provide, let’s say, the healthcare, or that the government provide the education. The idea is to structure things taking into account, for example, the power of a market such that we maximize the chances of people having available to them good quality healthcare, good quality education. It’s not a recipe for socialism.

 

      I think where the report would say and I would say people go wrong when they think about so-called rights to healthcare, education, or other positive rights, is that they imagine that what that means is socialism wins in advance or collectivism wins in advance, that it means that the government’s got to provide it. No. It means that the government has an interest in making sure, arranging things, supervising things, structuring, regulating in such a way as to maximize the advantage to everybody, that is, the common good, including when it comes to things like healthcare, education, and so forth.

 

      But it doesn’t mean that we have to have a system of public schools or that we can’t have school choice or that we can’t have homeschooling. The government’s got to provide the education and you’ve got to take it whether you like it or not. Same with healthcare. It may be that the best system of healthcare is some combination of government, perhaps in the cases of people who are most needy, and the work of the market. Markets are pretty good, historically, at driving up quality and driving down prices. There’s no reason in principle that a rights theorist has to say, “Too bad. Can’t take advantage of those things because since there’s a right to healthcare, that means the government’s got to directly supply it the way European social democracies do.”

 

      So I think what this is telling us is that we need to be much more rigorous in our analysis of rights, especially when it comes to so-called positive as opposed to negative rights. We need to know, well, what exactly is supposed to be provided by whom to whom? Why should that entity or person be the provider?

 

      You need an argument at each step of the way, which makes it somewhat different and more complicated than when it comes to negative rights, say, the right against being enslaved, the right in the name of which we overthrew the evil institution of slavery. If there’s a natural right or a human right or an unalienable right against slavery, so freedom in the sense of not being enslaved, then it’s pretty straightforward. Government cannot enslave people, and it’s got to make sure that private parties don’t enslave people. And it certainly can’t set up a contract system or a legal system that facilitates the enslavement of people by other people.

 

      So I think if we’re willing to think rigorously and critically, and if we bring Hohfeld back, we can think our way through these things pretty well.

 

Dean Reuter:  Well, gentlemen, we’re out of time. I want to give each of you maybe 10 seconds or 15 seconds to wrap up if you have a final thought; Professor Saunders first.

 

Prof. William Saunders:  Well, I would just say thanks for people for listening. There’s a lot in the report, a lot to think about that we can all profit from. We couldn’t get into it in much detail, but I’m glad we had a chance to talk about it. I’m glad that Secretary Pompeo wanted to revisit this question because I think it will make the U.S. much stronger in promoting human rights around the world.

 

Dean Reuter:  Professor Robbie George, a final thought?

 

Prof. Robert George:  Dean, I want to thank you, of course, and especially The Federalist Society. And I want to thank my old pal Bill Saunders for having this conversation with me.

 

      And I think the way to conclude here is for us to thank Mary Ann Glendon, not only for this report but for all the amazing work that she has done in her career in comparative law, in constitutional law, in other of the fields of law and philosophy and society and social science. I described her earlier as a magisterial figure. She is indeed that. She is now in her 80th year and has just announced her retirement from Harvard Law School from the active teaching ranks.

 

      The chair that she held, I’m so delighted to know, the Learned Hand Chair, a very distinguished chair in law at Harvard, will be passed on to a very worthy successor, and I know Mary Ann is very excited about this. That’s Jack Goldsmith. Jack is the new Learned Hand Professor next in this distinguished line.

 

      So I want to say thank you to Mary Ann, and I think we all should look at this report as a kind of capstone. I know she’s going to continue to do work, scholarly work. She’s going to have more achievements. But this is really, in her 80th year as she retires, an amazing and wonderful capstone to her astonishing contributions to the field of law and to the common good in the United States.

 

Dean Reuter:  Well, gentlemen, my thanks to you personally and on behalf of The Federalist Society. We really appreciate your insights and your time and your thoughtfulness here. I want to thank the audience as well for joining us and for your thoughtful questions. A reminder to the audience to check our website, monitor your emails for notes on upcoming teleforum conference calls. But until that next call, we are adjourned. Thank you very much, everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at www.fedsoc.org.