The US and the EU: A Comparison of Positions on Domestic ...



The US, the EU and the UN: A Comparison of Positions on Domestic

Rights and Human Rights

There are certain political documents, given their strength and influence, have the privilege of holding a revered place in our historical consciousness. Some are widely known, others are not, and often, we only have a vague idea of their content. However, these documents mark turning points, and three of them - the United States Constitution, the European Union Treaty for Establishing a Constitution (abbreviated for the purposes of simplicity as simply the EU's Constitution) and the United Nations Universal Declaration of Human Rights - will be the focus on the following paper. Contained, in part or in whole, in each of these documents is an enumeration of specific rights granted, and hopefully guaranteed, to those under the jurisdiction of the documents. The case of the UN Declaration is a bit more complicated, but the goal is the same: a benchmark set for the rights of persons to be protected against governments, peers and other institutions. These documents detail what are fundamentally human rights, in name or in spirit, and are each progressive milestones for the cause of human rights.

In the United States, we have a strong attachment to the ideal of liberal democracy. However, the established doctrine of rights and liberties enumerated in the US Constitution is much weaker than the set of rights and liberties the European Union will require its member states to recognize. While the two documents guide two of the world’s great powers, albeit with often spotty records of granting rights and democracy to their own people as well as others, the detailed European rights requirements are far more progressive than those in the US. The Universal Declaration, written in 1948, is an intermediately progressive document. Taken all three together, they represent the history of rights in the world, at the points at which those rights were the most progressive the time (1791, 1948 and 2004) had ever seen.

To be fair to both the US and the EU, and to prevent any confusion, it must be noted that the EU’s Treaty for Establishing a Constitution is a new document, hardly six months old. On the other hand, the US Constitution was written at the end of the 18th century. It was constructed in such a manner that, once ratified, made it incredibly difficult to tamper with. This was a mechanism to protect the stability of the republican experiment itself. The fledgling United States was a startlingly progressive construction, even as it looks hopelessly archaic when compared with the contemporary European Union. In some ways, the following arguments represent an unjustified criticism of the United States Constitution; or, at least an anachronistic criticism. The US Constitution is, for better or for worse, a fluid document. The things that are omitted from it are also things that are left up to the state and local governments or the general populace of the United States to decide. Sometimes that judgment is misguided, based on false information or made on the grounds of an ideology that runs counter to liberal and democratic norms, but if one takes democracy and political participation as good at face value, then the organic structure of the US Constitution is required to maintain US political vitality. More importantly, it is what has allowed rights to progress over the past two centuries to a working system that is far more modern than what the Constitution strictly dictates.

Indeed, the original Bill of Rights seems rather quaint to our modern sensibilities. It is important to note, however, how important an addition the Bill of Rights was to the Constitution. In its intended form, the Constitution had no such enumeration of the rights of the people. Although the arguments given against the Bill of Rights are tangential to the discussion here, it is worthwhile to note that most of Founding Fathers denied the necessity of such amendments. These rights were not won by elites; they were won by the people. It was felt that there needed to be certain explicit constraints on the powers of government, rules that would be clear and would serve as an educational documents to the citizens of the United States. Citizens would know precisely what their rights were, precisely what the government could not touch. The UN Universal Declaration of Human Rights and the European Union Constitution follow in this tradition - the feeling that rights enumerated are somehow more powerful than rights implicitly granted. For instance, upon passing the Universal Declaration, the UN Assembly asked member countries “to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories.” Telling the people what rights they had was, and is, an important civic lesson.

While the following analysis will focus on many of the differences between the documents, differences that do not fall to the favor of the United States, it is necessary to point out the similarities among the content of the documents, not just the presentation. All three documents place their faith in, first and foremost, rights, freedom and democracy. Furthermore, all three documents do not pretend to be comprehensive, and defer many rights and responsibilities – explicitly – to member states (national or subnational). And as I noted above, all have an educational function. Additionally, as I implied previously, each works in the tradition of liberal democracy, placing rights in the foreground.

However, the purposes of the documents and the influence they actually have on the rights of citizens who supposedly fall under their jurisdiction (a term used very loosely with the UN) vary greatly. These differences are very important to point out early because they offer a more nuanced basis for understanding the rights contained within each. The US Constitution, written in 1787, was created to establish a workable government for the thirteen states of the union after the Articles of Confederation failed to work. Written by the most capable and thoughtful individuals of the time, it was meant as a national document, guaranteeing limited state sovereignty but placing the locus of power at the federal level. The UN Universal Declaration of Human Rights has very little actual coercive power, because it is an international document, but it serves as a guideline for the actions countries can take and how appropriate they are in regards to the protections of human rights. The document serves as a benchmark, as well, for countries in transition (especially at the time it was written) - former colonies, former monarchies, former fascist states, etc. The EU Constitution, on the other hand, is written to be a coercive document, to be ratified by the individual European states just as the US Constitution was made to be ratified by the individual states in the US. However, it must at once have the broadness of an international document and the specificity of a Constitution of some sovereign body.

The treaty establishing for Europe a Constitution outlines explicitly a significant set of rights, from the foundational to the highly specific. It is a thoroughly modern document, just signed in October, and up for ratification by the member countries of the European Union, protecting everything from the environment to education. The rights granted by the EU’s Constitution far outnumber the rights granted by the US Constitution, although both are firmly rooted in the liberal-democratic tradition. In structure, the EU divides the rights and protections of persons into six categories: dignity, freedoms, equality, solidarity, citizens’ rights and justice. The EU has a generally very philosophical approach to conceptions of rights, building on firm foundational assumptions about freedom and equality. In contrast, rights granted in the US seldom have such philosophical consistency. Even when there appears a foundational rights (such as the equal protection clause in the 14th Amendment, or the guarantee of "life, liberty and property" in the same amendment), it doesn't serve a foundational function. The 14th Amendment was not ratified until 1865, and then without much input from the South as a result of restrictions placed on the South's political power after the Civil War). In many ways, the rights granted to citizens of the United States have been slapped together willy-nilly into an odd patchwork of a whole, lacking any clear basis or starting point, simply being expanded as history progresses. The same concern about philosophical consistency, however, is true for the UN document, although to a lesser degree. It too has a very piecemeal feel.

In fact, it is further deceiving to look at the amendments to the US Constitution as whole because they contain rights granting amendments as well as amendments which alter administrative structures of government, from the process by which Senators are selected to the number of terms a president can hold office. As a result, even the manner in which amendments are made and rights formulated in the US Constitution is methologically inconsistent. There are no philosophical bases of rights enumerated in the US Constitution, and at most we are only given nebulous phrases in non-binding documents like the Declaration of Independence, stating “all men are created equal” and are “entitled to life, liberty and the pursuit of happiness.” Thus, the whole constitutional experiment in the US appears to be a sort of patchwork not just of rights, but of denials of rights (explicit or implicit) and the functions of government, from the grandest to the most mundane.

Returning to the question of the enumeration of the most basic rights – both the UN Universal Declaration and the EU Constitution, as shown in the table below, clearly enumerate more rights than does the US Bill of Rights, double and triple the number, respectively. While I will leave this for more detailed investigation later in the paper, it is worth noting that some of the rights-granting articles in the US Constitution overlap like those pertaining to suffrage. It takes four amendments to get to universal suffrage, which is really just one "right," since rights protected should be taken, by definition, to apply universally by virtue of the ideal of political equality. This has not been the case historically, as "rights" have been granted to only small portions of the population of countries, both the United States and elsewhere. It has often taken more for the US, working from distant historical point A (the framing of the Constitution) to present point B, to develop, not simply grant, a more comprehensive set of rights.

|By the numbers: | |

|Rights-granting Amendments to US Constitution: | |

| |14 |

|Rights-granting Articles in European Union Constitution: | |

| |50 |

|Rights-granting Articles in UN Universal Declaration of Human Rights: | |

| |30 |

It makes sense then, that the founders of the US Constitution would leave out such things as the "right to liberty," or would declare that all "human beings are born free and equal." Not only would the political climate not allow for such language, it was not widely believed to be true. All liberty had some sort of qualification. In an example where such qualification was made into law, Congress passed the Alien and Sedition Acts in 1798, the latter to quell opposition to the party in power, restricting freedoms granted in the First Amendment (freedom of speech) to those who agreed with the government. This is, of course, an easy example: most rights were not extended to women, slaves, minorities, or even fully to those without property (even though it was not a legal requirement). It has only been in the latter half the 20th century that it has even become a popular – let alone political – belief that all persons are free and equal. In many cases, that belief is still not upheld, in practice or ideology.

Because of its obviously progressive stance, it doesn't take much to put the Constitution of the European Union on a pedestal and revere its totality and completeness. Few rights are left unexamined, and almost every major category of possible contention is mentioned. However strict the EU's enumeration of rights is, however, one must be careful not to hold it in too high an esteem. These rights are not absolutes, and just because they appear in the Constitution does not mean that they are popular or widespread, in the mass public or among national governments comprising the EU. We don't know yet what the people of the EU will think, because the Constitution has yet to be ratified, and some interesting things may appear during that process. It was only 60 years ago Adolf Hitler's Nazi death machine was in the process of exterminating millions upon millions of minorities across western-central Europe, denying them every possible right, up to the simple right to life. As much as we would like to believe, and that Europeans would like to believe, that things have changed dramatically in the last half century, to assume they have just because the Union produces a document that claims "human dignity is inviolable" and the majority of European nations have signed on, we can't make the wholesale claim that Europe is more progressive than the United States. Take for example the very recent controversy in France over Muslim girls wearing headscarves to "secular" French schools. By denying the rights of these girls to wear headscarves, France is not upholding equality before the law, instituting a rule that does not affect all persons equally. There will surely be more of these problems as time goes on.

The case of the UN Universal Declaration on Human Rights is much the same. The document appears on the surface to indicate a progressive world organization, but in many ways, it only reflects certain values and certain interests of particularly powerful member countries. But actions speak louder than words, and while the UN may outline the human right of "equal pay for equal work" without any discrimination, women in industrialized countries, most notably the United States, openly violate such suggestions from the UN. Again, as a result, we see that the UN is not as progressive as we could make it out to be at face value.

Some enumeration of the most basic rights: to dignity, to liberty, to equality, to justice, is present more strikingly in the EU and UN documents, but not entirely absent from the US:

|Abstract Idea |US Constitution |EU Constitution |Universal Declaration |

|Dignity |_ |"Human dignity is inviolable. It must|"All human beings are born free and equal |

| | |be respected and protected." |in dignity and rights. They are endowed |

| | |(Article II-1) |with reason and conscience and should act |

| | | |towards one another in a spirit of |

| | | |brotherhood." |

| | | |(Article 1) |

|Liberty |"[No] State [shall] deprive any person of |"Everyone has the right to liberty |"Everyone has the right to life, liberty |

| |life, liberty or property without due |and security of person." |and security of person." |

| |process of law." |(Article II-6) |(Article 3) |

| |(Article XIV) | | |

|Equality |"[No State may] deny to any person within |"Everyone is equal before the law." |"All are equal before the law and are |

| |its jurisdiction the equal protection of |(Article II-20) |entitled without any discrimination to |

| |the laws." | |equal protection of the law." |

| |(Article XIV) | |(Article 7) |

|Justice |"In all criminal prosecutions, the accused|"Everyone is entitled to a fair and |"Everyone is entitled in full equality to |

| |shall enjoy the right to a speedy and |public hearing within a reasonable |a fair and public hearing by an |

| |public trial, by an impartial jury of the |time by an independent and impartial |independent and impartial tribunal, in the|

| |State … and to be informed of the nature |tribunal previously established by |determination of his rights and |

| |and cause of the accusation; to be |law. Everyone shall have the |obligations and of any criminal charge |

| |confronted with the witnesses against him;|possibility of being advised, |against him." |

| |to have compulsory process for obtaining |defended and represented." | |

| |witnesses in his favor, and to have the |(Article II-47) | |

| |Assistance of Counsel for his defence." | | |

| |(Article VI) | | |

While the ratio and content of abstract fundamental rights to concrete fundamental rights gives us some view of the differences among the US, EU and UN approach to rights, some of those differences can accounted for historically and methologically with legitimacy. Two of the most basic rights, equality and liberty, are not made explicit until the 14th Amendment in 1865 in the US. However, looking at individual, concrete rights is more telling: Here, we see how far ahead the European Union is in terms of demanding the acceptance of the widest variety of protections for citizens (both present and future) and political progress.

|Specific Right |US Constitution |EU Constitution |Universal Declaration |

|Punishment |"Excessive bail shall not be required, nor |"Everyone has the right to life. |"No one shall be subjected to torture or |

| |excessive fines imposed, nor cruel and |No one shall be condemned to the death |to cruel, inhuman or degrading treatment |

| |unusual punishments inflicted." |penalty, or executed. |or punishment." |

| |(Article VIII) |No one shall be subjected to torture or to |(Article 5) |

| | |inhuman or degrading treatment or punishment."| |

| | |(Article II-2) | |

|Slavery |"Neither slavery nor involuntary servitude,|"No one shall be held in slavery or servitude.|"No one shall be held in slavery or |

| |except as a punishment for crime whereof |No one shall be required to perform forced or |servitude; slavery and the slave trade |

| |the party shall have been duly convicted, |compulsory labour. |shall be prohibited in all their forms." |

| |shall exist within the United States, or |Trafficking in human beings is prohibited." |(Article 4) |

| |any place subject to their jurisdiction." |(Article II-5) | |

| |(Article XIII) | | |

|Voting |(Article XV, |"Members of the European Parliament shall be |"The will of the people shall be the basis|

| |Article XIX, |elected by direct universal suffrage in a free|of the authority of government; this will |

| |Article XXVI) |and secret ballot." |shall be expressed in periodic and genuine|

| | |(Article II-39) |elections which shall be by universal and |

| | | |equal suffrage and shall be held by secret|

| | | |vote or by equivalent free voting |

| | | |procedures." |

| | | |(Article 21.3) |

|Speech |"Congress shall make no law … abridging the|"Everyone has the right to freedom of |"Everyone has the right to freedom of |

| |freedom of speech, or of the press." |expression. This right shall include freedom |opinion and expression; this right |

| |(Article I) |to hold opinions and to receive and impart |includes freedom to hold opinions without |

| | |information and ideas without interference by |interference and to seek, receive and |

| | |public authority and regardless of frontiers. |impart information and ideas through any |

| | |The freedom and pluralism of the media shall |media and regardless of frontiers." |

| | |be respected." |(Article 19) |

| | |(Article II-11) | |

|Religion |"Congress shall make no law respecting an |"Everyone has the right to freedom of thought,|"Everyone has the right to freedom of |

| |establishment of religion, or prohibiting |conscience and religion. This right includes |thought, conscience and religion; this |

| |the free exercise thereof." |freedom to change religion or belief and |right includes freedom to change his |

| |(Article I) |freedom, either alone or in community with |religion or belief, and freedom, either |

| | |others and in public or in private, to |alone or in community with others and in |

| | |manifest religion or belief, in worship, |public or private, to manifest his |

| | |teaching, practice and observance." |religion or belief in teaching, practice, |

| | |(Article II-10) |worship and observance." |

| | | |(Article 18) |

| | | | |

|Assembly |"Congress shall make no law … abridging … |"Everyone has the right to freedom of peaceful|"Everyone has the right to freedom of |

| |the right of the people peaceably to |assembly and to freedom of association at all |peaceful assembly and association. No one |

| |assemble." |levels, in particular in political, trade |may be compelled to belong to an |

| |(Article I) |union and civic matters, which implies the |association." |

| | |right of everyone to form and to join trade |(Article 20) |

| | |unions for the protection of his or her | |

| | |interests." | |

| | |(Article II-12) | |

|Education |_ |"Everyone has the right to education and to |"Everyone has the right to education. |

| | |have access to vocational and continuing |Education shall be free, at least in the |

| | |training. |elementary and fundamental stages. |

| | |This right includes the possibility to receive|Elementary education shall be compulsory. |

| | |free compulsory education." |Technical and professional education shall|

| | |(Article II-14) |be made generally available and higher |

| | | |education shall be equally accessible to |

| | | |all on the basis of merit." |

| | | |(Article 26.1) |

|Family |_ |"The right to marry and the right to found a |"Men and women of full age, without any |

| | |family shall be guaranteed in accordance with |limitation due to race, nationality or |

| | |the national laws governing the exercise of |religion, have the right to marry and to |

| | |these rights." |found a family. They are entitled to equal|

| | |(Article II-9) |rights as to marriage, during marriage and|

| | | |at its dissolution.." |

| | | |(Article 16) |

|Property |"Nor shall private property be taken for |"Everyone has the right to own, use, dispose |"(1) Everyone has the right to own |

| |public use, without just compensation.." |of and bequeath his or her lawfully acquired |property alone as well as in association |

| |(Article V) |possessions. No one may be deprived of his or |with others. |

| | |her possessions, except in the public interest| |

| | |and in the cases and under the conditions |(2) No one shall be arbitrarily deprived |

| | |provided for by law, subject to fair |of his property." |

| | |compensation being paid in good time for their|(Article17) |

| | |loss. The use of property may be regulated by | |

| | |law insofar as is necessary for the general | |

| | |interest." | |

| | |(Article II-17) | |

|Privacy |"The right of the people to be secure in |"Everyone has the right to respect for his or |"No one shall be subjected to arbitrary |

| |their persons, houses, papers, and effects,|her private and family life, home and |interference with his privacy, family, |

| |against unreasonable searches and seizures,|communications." |home or correspondence, nor to attacks |

| |shall not be violated." |(Article II-7) |upon his honour and reputation. Everyone |

| |(Article IV) | |has the right to the protection of the law|

| | | |against such interference or attacks." |

| | | |(Article 10) |

The above table uses the examples of ten protections granted or not granted by the US, EU and UN: protections against certain forms of punishment, protection against slavery, the right to vote, freedom of speech, freedom of assembly, freedom of religion, guarantee of education, the right to family, the right to own property and and the right to privacy. Superficially, the EU and the UN enumerate versions of all ten of these rights and protections; the US, on the other hand, only enumerates a total of eight (however, we are lucky not have a marriage amendment in the current political climate!). This ratio is not necessarily representative of the total ratio of rights in the US Constitution to rights in the EU Constitution, nor either to the Universal Declaration.

Least Comprehensive Most Comprehensive

US Constitution UN Universal Declaration EU Constitution

Moreover, it isn't the case that in the original version of the Bill of Rights each of the articles cited above in the rights examples was enumerated. Specifically, the prohibition of slavery and the extension of suffrage to all citizens were not guaranteed by the original Bill of Rights. Tracing the history of these rights, which I will proceed to do, is very telling of the progress of history and what informs the more comprehensive rights in the other two documents. Additionally, I will outline briefly the history of rights involving particular kinds of punishment, like the death penalty, which highlight beautifully the ways in which the three different documents work.

When the Bill of Rights was written and ratified in 1791, slavery in the United States was widespread; the slave trade had not been halted. The Constitution recognized only that blacks slaves should be counted as three-fifths of a person each for the purposes of determining population figures. It would not be until over 70 years later that slavery would be outlawed in the United States. It wasn't until 1808 that the United States banned the slave trade; that is, 20 years after the Constitution was written, and 30 years after Thomas Jefferson proclaimed in the Declaration of Independence that "all men are created equal," and even cited a later stricken grievance against George III of England condemning the importation of slaves to the American colonies. Because the southern states relied on slave labor, wresting the "peculiar institution" from their hands was not an easy task, and even the slave trade ban was hard won.

As late as 1857, with the Dred Scott case, the United States Supreme Court upheld the constitutionality of slavery. This is an important historical point to note: many of the rights enjoyed by US citizens are not rights explicitly laid out in any official document or in any constitutional amendment. Instead, many rights and protections derive from case law – the Supreme Court's interpretation of the existing Constitution, including amendments. While this can be used as tool of progress, as with the Warren Court in the 1950s and 1960s, it can also be a hindrance to progress in human rights. This system of informal-formal law that exists in the United States as court precedent has given many protections to US citizens that do not appear in the original body of the Bill of Rights or subsequent amendments. However, in the case of the Dred Scott decision, the Supreme Court decided that Scott, a slave, was not a citizen; that Scott did not become free upon entering a free state and that most importantly, Congress did not have the power to ban slavery.

Indeed, it would take a more violent course to rid the United States legally of slavery. The secession of the South, the Civil War, Abraham Lincoln's abolitionist leadership and eventual confederate loss set up the circumstances by which the thirteenth amendment could be ratified (with little Southern influence). However, the long and bloody path to ending slavery in the United States gave history the arguments for and against slavery, and highlighted the horrors of the institution. While slavery existed throughout the world until much later, and still does in many countries, it can no longer be a state-sanctioned institution because of the progressive nature of the history of the United States. It comes as no surprise, then, that the strong prohibition appears in the UN Universal Declaration of Human Rights and the European Union Constitution; that prohibition of slavery follows directly from the statement that all persons possess human dignity comes straight from the most philosophically sound arguments presented against slavery in the United States. Slavery is condemned, at least officially, worldwide.

The story of universal suffrage becoming a norm and benchmark for democracy follows a similarly ugly route, with the most prominent (and protracted) struggles for suffrage occurring in the United States from its founding until 1920, when women were granted the right to vote, or more controversially, until 1971, when the voting age was lowered to eighteen. In Europe or in America at the end of the 18th century, the concept of unpropertied, non-white or female persons having a direct say in government was preposterous. James Madison, the architect of the Constitution, advocated for limiting even the influence of propertied white males on the fledgling republic. We scoff now at the ways in which suffrage was limited two centuries ago, but the very concept of democracy – the very idea that ordinary citizens could influence government – was an idea only toyed with by the great philosophers, not something considered viable in practice. Monarchies still ruled Europe, even if in increasingly limited ways, but the establishment of a new republic, where voting even occurred in any substantial way, was itself an incredibly progressive idea.

There are four amendments to the US Constitution that deal with the problem of extension of suffrage. The first is the fifteenth amendment, which extended suffrage to persons of color and former slaves. The second is the nineteenth amendment, granting women the vote. The third dealt with actions, such as the Jim Crow laws of the post-Reconstruction South, which prohibited, in variously ways that circumvented the thirteenth amendment, the voting rights of blacks. The fourth, which is the twenty-sixth amendment, extends voting to those 18 years of age and older. Each of these amendments was the result of various movements – abolition, women's rights, civil rights and Vietnam-era youth social protest. They grew organically out of history, and could not have been put in place from the founding. Each had to come into its own, and of course, were adopted by later constitutional and rights-granting documents, but only after they were struggled for and argued over. Universal suffrage was – even more so than protection against slavery – never considered a basic right. While the suffrage movements were not limited to the United States, the influence of the US on the affairs of the United Nations, and on the European Union was, and is, very strong.

The most compelling case of all, though, may be the harried history of capital punishment. The EU Constitution bans it in all forms. Historically (and currently), the death penalty has been used throughout the world as a punishment for crimes of a varying degree of severity. We tend to think (falsely) that civilized countries have used capital punishment more sparingly, and only for horribly violent crimes. I need only refer to the case of Ethel and Julius Rosenberg, who were executed in 1953, having been charged with civilian espionage in a charged anti-Communist political climate. It is probable that the couple was put to death in large part because of their affiliation with the Communist Party. From the perspective of civil and human rights, this case is particularly disturbing, not only because the death penalty was issued and deemed appropriate punishment, but that the Rosenbergs likely did not receive what could be called a fair trial. This appears to be a clear human rights violation, even at the time.

Notably, the Constitution of the United States and the Universal Declaration of Human Rights both ban the use of "cruel and unusual punishment," which is read by some to include the death penalty, such as organizations like Amnesty International. Obviously, this phrase is not popularly interpreted in that way. Unlike slavery and suffrage, the history of capital punishment isn't so clear, or cuts such a clear course to an extension of a right to life. In 1972, in the case Furman v. Georgia, the US Supreme Court declared a moratorium on the death penalty, but in the case Gregg v. Georgia, in 1976, reinstated the death penalty. Since then the death penalty has been federally legal in the Unites States, though some individual states have banned it. In the view of human rights, it may be heartening to look at the cases of slavery and suffrage. The abolition of slavery and the extension of suffrage to non-whites and women began at the state level. The question remains that if the US were to ban the death penalty, whether such action would then accelerate the process of a total international (UN) ban on the use of capital punishment.

I will also briefly mention the right to education that is put forth in the EU Constitution and in the UN Universal Declaration on Human Rights because there is a recent, pertinent example from the United States highlighting why, perhaps, such a right is not detailed within the framework of our federal government. In the last election (November 2004), voters in Alabama denied passage of an amendment to the Alabama state constitution that would strike racist language from the constitution and also guarantee a right to education in the state. While this is not in direct violation of the UN doctrine, it is troubling because it shows that people are reluctant, for whatever reason (racism and taxes have both been cited as causes of the amendment failure in Alabama), to enumerate more rights. This popular opposition is as problematic as anything. The question of equal education, like that of slavery and suffrage, has evolved over time, but probably like the use of the death penalty, has stalled in being made concretely explicit in the United States.

The whole concept of the evolving nature of rights has some important implications. It seems that, practically at least, rights are not absolute, but grow and change with the course of history. This implies that rights can't simply be arbitrarily granted; a full-fledged Constitution cannot be handed out to any country that wishes to have one (or, in some cases, doesn't wish). Here, then, lies a case against nation-building. If the United States can hardly hold up international human rights law in its own country (and certainly cannot in dealing with other countries), then to expect that countries with a less developed historical sense of liberalism and democracy is not practical. As the EU Constitution has not yet been ratified by the countries of Europe, it is not law yet, and it will be interesting to see how well Europe can uphold the massive set of rights it has written into its founding document. The rights enumerated in the UN Universal Declaration of Human Rights are a starting set of guidelines, but do not guarantee the upholding of those rights by individual countries, even those who are members of the United Nations.

A broad, comprehensive set of basic rights may be better viewed as an ideal rather than a reality at any particular point in time. The real progress in extensions of basic rights, liberties and protections in not in the progressive nature of these three documents themselves, although that fact is important to our discussion. Instead, the progress is in the evolving nature of these documents, their indication when taken together that rights are not and cannot be absolute, that we must be ever watchful of what we give, and what we take. The argument that the EU is more forward-looking than the UN, and both are more forward-looking than the US is only worth our attention insofar as we remember to look at the bigger picture, without immediately pointing fingers, and realize that each successively builds on the other(s). The final conclusion isn't that the US is hopelessly deficient in the world of human rights; instead, it should be that our conceptions of basic rights and their practical and theoretical extensions have come a long way in the past 220 years. The less than comprehensive nature of the US Bill of Rights (and even succeeding amendments) was simply the only possibility, given the historical circumstances, at the time those rights and protections were first enumerated. We can hope, then, that because rights are constantly evolving, and with the UN and the EU as examples, that in the United States and elsewhere, rights will be continue to be applied to more persons and more specific actions. The future is not dismal; we are not stuck. The process may not be as quick as some would like, but we have something a little more substantial than hope: history on our side.

Notes:

All US Constitution and Bill of Rights information and references from the National Archives at:

All EU Constitution information and references from the official website of the EU at: (English version)

All UN Universal Declaration information and references from United Nations website at:

Full-text versions of each of the documents discussed can be found at these websites.

Additional data and information from:







-----------------------

Emily Gustafson

EDGE – 297A

Fall 2004

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