Texas reached a milestone this June as the state executed its 500th death-row inmate since 1976. The same week, the gay rights community celebrated a major victory after the Supreme Court declared the Defense of Marriage Act unconstitutional. The debates are far from over, and at the heart of these issues which are always divisive and always in the headlines lies a fundamental consideration of morality in the Constitution. With Human Rights in the Constitutional Law of the United States, a leading expert on American constitutional law explores the morality of our constitutional law and how it comes to bear on important 21st century conflicts like abortion, capital punishment, and same-sex marriage. Download the full excerpt here.
Introduction: Human Rights in the Constitutional Law of the United States
In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality – specifically, a global political morality.1 That morality, which I call “the morality of human rights,” consists both of a fundamental imperative, which serves as the normative ground of human rights, and of various human rights – of various rights, that is, recognized by the great majority of the countries of the world as human rights.
Some of the morality of human rights is entrenched – more precisely, some of the rights internationally recognized as human rights are entrenched – in the constitutional law of the United States. Because, as I explain in Chapter 2, a human right is, whatever else it is, a moral right, I refer to the set of internationally recognized human rights that are entrenched in the constitutional law of the United States as “the constitutional morality of the United States.”2
A basic understanding of the morality of human rights greatly enhances our understanding of the constitutional morality of the United States. My aim in Part I of this book is to provide that basic understanding. I begin, in Chapter 1, by sketching the internationalization of human rights: the growing international recognition and protection, in the period since the end of the Second World War, of certain rights as human rights. Then, in Chapter 2, I explain what it means to say, in the context of the internationalization of human rights, that a right is a “human right.” Finally, in Chapter 3, I discuss the normative ground of human rights: the fundamental imperative, articulated in the very first article of the foundational human rights document of our time – the Universal Declaration of Human Rights (1948) – that governments “act towards all human beings in a spirit of brotherhood.”
With Part I behind us, we are ready to turn, in Part II, to the constitutional morality of the United States. The three international human rights with which I am concerned in this book – each of which, as I explain in due course, is entrenched in the constitutional law of the United States and is therefore part of the constitutional morality of the United States – are the right not to be subjected to “cruel and unusual” punishment, the right to moral equality, and the right to religious and moral freedom. (At the beginning of Part II, I identify the conditions whose satisfaction warrants our concluding that a right is entrenched in the constitutional law of the United States.) I elaborate each of those three rights in Part II, and I pursue three inquiries:
- Does punishing a criminal by killing him or her violate the right not to be subjected to “cruel and unusual” punishment?
- Does excluding same-sex couples from civil marriage violate the right to moral equality or the right to religious and moral freedom?
- Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?
