Report of the 

Commission on 

Unalienable Rights 

Report of the 

Commission on 

Unalienable Rights 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

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Table of Contents 

PREFATORY NOTE 4 

I. INTRODUCTION 5 

II. THE DISTINCTIVE AMERICAN RIGHTS TRADITION 8 

A. The Declaration of Independence 9 

B. The Constitution 15 

C. Lincoln’s Return to the Declaration 18 

D. Post–Civil War Reforms 20 

E. America’s Founding Principles and the World 25 

III. U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES 27 

A. The Universal Declaration of Human Rights and the United States 29 

B. Reading the Universal Declaration 30 

C. Persistent Questions Regarding the UDHR 33 

1. National Sovereignty and Human Rights 33 

2. Relation of Civil and Political Rights to Economic and Social Rights 33 

3. Human Rights and States’ Obligations 36 

4. Democracy and Human Rights 36 

5. Hierarchy of Human Rights 37 

6. The Emergence of New Rights 38 

7. Human Rights and Positive Law after the UDHR 40 

8. Human Rights Beyond Positive Law 41 

IV. HUMAN RIGHTS IN U.S. FOREIGN POLICY 42 

A. Foreign Policy and Freedom 42 

B. Constitutional Structure, Statutory Context, and Treaty Obligations 45 

C. New Challenges 49 

D. Human Rights in a Multidimensional Foreign Policy 52 

V. CONCLUDING OBSERVATIONS 54 
Circa 1790: U.S. president George Washington in consultation 

with his Secretary of State Thomas Jefferson and Secretary of the 

Treasury Alexander Hamilton. A painting by Constantino Brumidi. 

(Photo by MPI/Getty Images.) 
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PREFATORY NOTE 

As the Commission’s work on this Report was nearing its completion, social convulsions shook the 

United States, testifying to the nation’s unfinished work in overcoming the evil effects of its long

history of racial injustice. The many questions roiling the nation about police brutality, civic unrest, 

and America’s commitment to human rights at home make all the more urgent a point we had already 

stressed in the Introduction and elsewhere in this Report: The credibility of U.S. advocacy for human 

rights abroad depends on the nation’s vigilance in assuring that all its own citizens enjoy fundamental 

human rights. With the eyes of the world upon her, America must show the same honest self-examination 

and efforts at improvement that she expects of others. America’s dedication to unalienable rights — the

rights all human beings share — demands no less.

What we say in our Concluding Observations also bears special emphasis in this moment: “One of the 

most important ways in which the United States promotes human rights abroad is by serving as an 

example of a rights-respecting society where citizens live together under law amid the nation’s great 

religious, ethnic, and cultural heterogeneity.” Like all nations, the United States is not without its 

failings. Nevertheless, the American example of freedom, equality, and democratic self-government has 

long inspired, and continues to inspire, champions of human rights around the world, and American 

human rights advocacy has provided encouragement to tens of millions of women and men suffering 

under authoritarian regimes that routinely trample on the rights of their citizens. 

In this challenging moment for the nation, the Commission hopes that this Report will nourish that 

complex combination of pride and humility that is among the most elusive and essential prerequisites 

for a foreign policy — and a domestic policy — grounded in America’s founding principles.
INTRODUCTION

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In today’s multipolar world, it is plain to see 

that the ambitious human rights project 

I. INTRODUCTION 

In the mid-20th century, after two world wars marked 

by unprecedented atrocities, the moral terrain of 

international relations was forever altered by a series of 

actions aimed at setting conditions for a better future. 

The United States was a major force in each of those 

transformative moments: the founding of the United 

Nations with its Charter proclaiming the promotion 

of human rights as one of its purposes; the Nuremburg 

trials making clear that a nation’s treatment of its own 

citizens would no longer be regarded as immune from 

outside scrutiny and repercussions; the unprecedented 

generosity of the Truman administration’s Marshall Plan, 

which undertook to reconstruct war-torn Europe and was 

expressly based on the conviction that basic human rights, 

free markets, and food security are mutually reinforcing; 

and the approval by the UN General Assembly of the 

Universal Declaration of Human Rights (UDHR) with its 

small core of principles to which people of vastly different

backgrounds could appeal. 

At the heart of that transformative process was the idea 

that all human beings possess certain fundamental rights, 

an idea that echoed the United States’ own Declaration 

of Independence. It was an encouraging sign that the 

already diverse members of the newborn UN accepted 

the Universal Declaration as a “common standard of 

achievement,” a kind of yardstick by which they could 

measure their own and each other’s progress toward 

“better standards of life in larger freedom.” 

But that consensus was fragile. It was testimony to the 

universal validity of the principles in the Declaration that 

of the past century is in crisis. 

no UN member was willing to oppose them openly. Yet 

eight countries abstained (the six-member Soviet bloc, 

Saudi Arabia, and South Africa). Even within strong 

supporter nations like the United States, many people 

doubted the worth of a non-binding declaration affirming

“faith in fundamental human rights” and “in the dignity 

and worth of the human person.” That faith had been 

sorely tested in recent memory. 

Yet to the surprise of skeptics, the human rights idea 

gathered strength in subsequent decades. It played a key 

role in the movements that led to the demise of apartheid 

in South Africa, the toppling of totalitarian regimes in 

Eastern Europe, and the decline of military dictatorships 

in Latin America. Its message was carried far and wide 

by a great army of non-governmental organizations, large 

and small — a “curious grapevine” that penetrated deep 

into closed societies. The UDHR became a model for the 

bills of rights in many post–World War II constitutions. 

And in the United States, the promotion of human 

rights became a principal goal of foreign policy, though 

emphases varied with changing circumstances and the 

priorities of succeeding administrations. 

In today’s multipolar world, however, it is plain to see that 

the ambitious human rights project of the past century 

is in crisis. The broad consensus that once supported 

the UDHR’s principles is more fragile than ever, even 

as gross violations of human rights and dignity continue 

apace. Some countries, while not rejecting those principles 

outright, dispute that internationally recognized human 

rights are “universal, indivisible and interdependent and
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In short, human rights are now misunderstood by many, 

manipulated by some, rejected by the world’s worst 

violators, and subject to ominous new threats. 

Michael R. Pompeo, 

Secretary of State 

interrelated.” Some, like China, promote a conception 

of human rights that denies civil and political liberties 

as incompatible with economic and social measures, 

rather than treating them as mutually reinforcing. At 

this moment, even some liberal democracies appear 

to be losing sight of the urgency of human rights in a 

comprehensive foreign policy. 

Further erosion of the human rights project has resulted 

from widespread disagreement about the nature and scope 

of basic rights, disappointment in the performance of 

international institutions, and overuse of rights language 

with a dampening effect on compromise and democratic

decision-making. Meanwhile, more than half the world’s 

population suffers under regimes where the most basic 

freedoms are systematically denied, or under regimes too 

weak or unwilling to protect individual rights, especially 

in the context of ethnic conflict. At the same time, new 

risks to human freedom and dignity are emerging in the 

form of rapid technological advances. In short, human 

rights are now misunderstood by many, manipulated by 

some, rejected by the world’s worst violators, and subject 

to ominous new threats. 

In light of these mounting challenges, U.S. Secretary of 

State Michael Pompeo determined in 2019 that it was 

time for an informed review of the role of human rights 

in a foreign policy that serves American interests, reflects

American ideals, and meets the international obligations 

that the United States has assumed. To that end, he 

established the Commission on Unalienable Rights, an 

independent, non-partisan advisory body created under 

the Federal Advisory Committee Act of 1972. 

The Commission’s charge, as stated in its Charter, “is not 

to discover new principles, but to furnish advice to the 

Secretary for the promotion of individual liberty, human

equality, and democracy through U.S. foreign policy.” 

The Charter further states that the Commission’s advice 

is to be “grounded in our nation’s founding principles 

and the 1948 Universal Declaration of Human Rights.” 

Such a mandate is in keeping with both the spirit of the 

Declaration of Independence and the spirit of the UDHR. 
INTRODUCTION

 

 

 

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The Declaration ofIndependence affirmsthat the primary

task of government is to secure the rights inherent in all 

persons —America’s founders called them “unalienable 

rights” — while the drafters of the UDHR fully expected

the diverse nations of the world to look within their own 

distinctive traditions to find support forthefundamental

principles it outlined. 

As elaborated by the Secretary, the Commission’s 

instructions were to focus on principle, not policy 

formulation. Recognizing that foreign policy must be 

tailored to changing circumstances and must necessarily 

consider many other factors along with human rights, 

the Commission did not seek to enter into debates 

about the application of human rights principles to 

current controversies. Rather, it has striven to bring 

those principles into focus and clarify common 

misunderstandings and perplexities, with the aim of 

assisting those who bear the heavy responsibility for 

making principled and prudent policy decisions. It is 

the Commission’s hope that this Report will be helpful 

to the people who are engaged, day in and day out, with 

framing a foreign policy worthy of a nation founded 

on the proposition that all human beings are created 

equal and endowed with certain unalienable rights. The 

Commission also hopes that this Report will stimulate 

discussion among fellow citizens and friends of freedom 

around the world about securing human rights. 

Mindful of the mandate to ground its advice in both the 

distinctive rights tradition of the United States and the 

principles of the Universal Declaration, the Commission 

embarked on a program of studying relevant texts and 

commentaries, including submissions by individual 

citizens and non-governmental organizations. It consulted 

widely, both with State Department specialists and with 

outside experts and activists representing a broad range of 

wisdom and experience in the field of human rights and 

foreign policy. Those who attended its public meetings 

heard the Commission’s discussions with invited experts, 

and they were given the opportunity to ask questions of 

the commissioners and to present their own comments, 

which enriched the Commission’s deliberations. 

The Commission turned first to a review of the principles

that have shaped America’s distinctive, dynamic rights 

tradition over the years. It then reviewed the relationship 

of those principles to the international principles 

enshrined in the Universal Declaration of Human Rights 

and those incorporated into other instruments which 

the United States has embraced. This Report presents 

the observations that emerged from that process as they 

relate to American foreign policy. 

The undersigned Commissioners, like our fellow 

Americans, are not of one mind on many issues where there 

are conflicting interpretations of human rights claims —

abortion, affirmative action, and capital punishment, to 

name a few. But with hundreds of millions of men and 

women around the world suffering extreme forms of

deprivation under harsh authoritarian regimes, we are 

of one mind on the urgent need for the United States to 

vigorously champion human rights in its foreign policy. 

With freedom, human equality, and democracy facing 

strong ideological opposition from powerful states, this is 

not the moment for the liberal democracies of the world 

to falter in defending the principles that have enabled 

them to achieve “better standards of life in larger freedom.” 

America must rise to today’s challenges with the same 

energy and spirit that she brought to the building of a 

new international order in the wake of two world wars. 

At the same time, we are keenly aware that America can 

only be an effective advocate for human rights abroad if 

she demonstrates her commitment to those same rights at 

home. The credibility of U.S. advocacy for human rights 

abroad depends on the nation’s vigilance in assuring that 

all its own citizens enjoy the full range of fundamental 

human rights. With the eyes of the world upon her, 

America must show the same honest self-examination 

and efforts at improvement that she expects of others.

Just as the Soviet Union did in 1948, China, Iran, and 

Russia have been quick to charge that our country’s 

domestic failures destroy its standing to defend universal 

human rights today. There can be no moral equivalence, 

however, between rights-respecting countries that fall 

short in progress toward their ideals, and countries 

that regularly and massively trample on their citizens’ 

human rights. 

Accordingly, we offer this Report in the spirit of Eleanor 

Roosevelt when she stood before the UN General 

Assembly in December 1948 to urge approval of the 

UDHR. Her passion for international human rights 

was equaled only by her passion for racial justice at home 

where, despite severe criticism during World War II, she 

had repeatedly insisted that the United States could not 
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The colonists’ momentous decision in July 1776 to break away from England 

in order to govern themselves marked the first time in human history that 

an independent nation came into existence by affirming a universal moral 

principle that stood above, and served as a standard for, all government. 

claim to be a democracy so long as African Americans did 

not have democratic rights. In concluding her address that 

evening, she counseled both determination and humility, 

quoting Secretary of State George Marshall: 

“Let this third regular session of the General 

Assembly approve by an overwhelming majority 

the Declaration of Human Rights as a statement 

of conduct for all; and let us, as Members of the 

United Nations, conscious of our own shortcomings 

and imperfections, join our effort in all faith to live

up to this high standard.” 

The Members of the Commission on Unalienable Rights 

embrace that high standard. We hope that this report’s 

examination of America’s commitment to human 

rights in light of the nation’s founding principles and 

the international principles that she has embraced will 

launch a conversation that will improve the ability of 

citizens — in and out of government — to live up to it. 

II. THE DISTINCTIVE AMERICAN 

RIGHTS TRADITION 

The American experiment in free and democratic 

self-government stems from several sources. The 17thcentury British subjects who settled, and built thriving 

communities along, the eastern seaboard of what they 

regarded as a new world brought with them a variety 

of traditions. These traditions both reinforced one 

another and pulled in different directions. Eventually,

their intertwining gave rise to a distinctive and dynamic 

national spirit. 

Among the traditions that formed the American spirit, 

three stand out. Protestant Christianity, widely practiced 

by the citizenry at the time, was infused with the beautiful 

Biblical teachings that every human being is imbued with 

dignity and bears responsibilities toward fellow human 

beings, because each is made in the image of God. The 

civic republican ideal, rooted in classical Rome, stressed 

that freedom and equality under law depend on an ethical 

citizenry that embraces the obligations of self-government. 

And classical liberalism put at the front and center of 

politics the moral premise that human beings are by 

nature free and equal, which strengthened the political 

conviction that legitimate government derives from the 

consent of the governed. 

Notwithstanding the enduring tensions among them, 

each of the distinctive traditions that nourished the 

American spirit contributed to the core conviction 

that government’s primary responsibility was to secure 

unalienable rights — that is, rights inherent in all persons.

The Declaration of Independence proclaims this core 

conviction, and the Constitution of the United States 

establishes political institutions to make it a reality. Indeed, 

much of American history can be understood as a struggle 

to deliver on the nation’s founding promise by ensuring 

that what came to be called human rights were enjoyed 

by all persons who lived under the laws of the land. 

As in all nations, there has been much in America with 

which to struggle: slavery; the forcible displacement 
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of native Americans from their ancestral lands; the 

discrimination against immigrants and other vulnerable 

minorities; and the imposition of legal liabilities on, and 

the withholding of opportunities from, women. 

Respect for unalienable rights requires forthright 

acknowledgement of not only where the United 

States has fallen short of its principles but also special 

recognition of the sin of slavery — an institution as

old as human civilization and our nation’s deepest 

violation of unalienable rights. The legally protected 

and institutionally entrenched slavery that disfigured the

United States at its birth reduced fellow human beings 

to property to be bought, sold, and used as a means for 

their owners’ benefit. Many slave-owning founders, not 

least Thomas Jefferson, recognized that in the light of

unalienable rights, slavery could only be seen as a cruel 

and indefensible institution. In contemplating slavery in 

his Notes on the State of Virginia, he wrote, “I tremble for 

my country when I reflect that God is just.” Nevertheless,

it would take a grievous civil war, costing more American 

lives by far than any other conflict in the nation’s history, to

enable the federal government to declare slavery unlawful. 

It would take another century of struggle to incorporate 

into the laws of the land protections to guarantee African 

Americans their civil and political rights. Our nation still 

works to secure, in its laws and culture, the respect for all 

persons our founding convictions require. 

It has been the work of Americans down through the 

generations to understand that unalienable rights, realized 

in part in the privileges and protections of citizenship, 

apply to all persons without qualification. Far from a

repudiation of, this progress in understanding represents 

fidelity to, the nation’s founding principles.

Progress toward the securing of rights for all has often 

been excruciatingly slow and has been interrupted by 

periods of lamentable backsliding. While no inexorable 

laws of history guaranteed the success of the American 

experiment in ordered liberty, 244 years after the nation’s 

birth the United States can be proud of the freedom, 

toleration, and diversity it has achieved. At the same 

time, the nation must be humble in light of the work 

that remains to be done. The pride and the humility 

alike reflect the nation’s founding conviction that human

beings are equally endowed with inherent rights and its 

enduring commitment to the constitutional form of 

government that was established to secure them. 

Theideathat there are different classes of humanity with

different privileges and immunities dies hard, however.

America’s long and difficult struggle can provide 

instruction and inspiration for the cause of human rights 

today. The American experience suggests that the securing 

of unalienable rights begins with the independence and 

sovereignty that enable a people to determine its own 

course and take responsibility for its decisions. 

A. THE DECLARATION OF INDEPENDENCE 

The colonists’ momentous decision in July 1776 to break 

away from England in order to govern themselves marked 

the first time in human history that an independent

nation came into existence by affirming a universal moral

principle that stood above, and served as a standard for, 

all government. That principle — that all human beings 

are by nature free and equal — has roots in beliefs about 

human nature, reason, and God and has profound 

ramifications for politics.

The main purpose of the Declaration of Independence 

was to announce the dissolution of the political bonds 

that tied the Americans to Great Britain and to proclaim 

that the 13 colonies “are, and of Right ought to be Free 

and Independent States.” The Declaration justified

these drastic steps by means of a long list of allegations 

of tyrannical rule directed against King George III. 

Americans sought for themselves what they viewed as 

the prerogative of all peoples: “to assume among the 

powers of the earth, the separate and equal station to 

which the Laws of Nature and of Nature’s God entitle 

them.” Owing in part to this conviction of the equality 

of peoples and their common interest in freedom, the 

Declaration views American independence also as a matter 

of foreign affairs, observing that “a decent respect to

the opinions of mankind requires that” the American 

people “should declare the causes which impel them to 

the separation.” As Abraham Lincoln highlighted 84 

years later, the Declaration’s principal author Thomas 

Jefferson, in the midst of “the concrete pressure of a

struggle for national independence by a single people, 

had the coolness, forecast, and capacity to introduce 

into a merely revolutionary document, an abstract truth, 

applicable to all men and all times.” 
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The abstract truth to which Lincoln referred stands at the 

center of the American creed: “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.” 

The Declaration ascribes transcendent foundations to 

unalienable rights, appealing to both philosophy and 

faith, reason and revelation. The very notion of rights 

inherent in all persons presupposes that human beings 

have a nature or essence that persists from historical epoch 

to historical epoch and, notwithstanding the remarkable 

diversity of nations and peoples, across cultures. 

Now, as then, important questions arise about those 

transcendent foundations. To what extent do unalienable 

rights rest on the work of a creator Deity? Can faith in 

such rights be sustained without faith in God? Can 

unalienable rights be known by all through reason? In 
THE DISTINCTIVE AMERICAN RIGHTS TRADITION

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Declaration of Independence, John Trumball 

what ways are unalienable rights bound up with the 

laws of nature, which tend to revolve around individual 

freedom, examined by early modern philosophers? In 

what ways are unalienable rights tied to natural law, which 

places emphasis on duties and virtues and which is more 

the province of medieval political philosophy? And in 

what ways are unalienable rights connected with what 

is just by nature, the central theme of classical political 

philosophy? No single answer to these metaphysical 

questions was decisive in 1776. Still less today, when 

To say that a right, as the 

founders understood it, is 

unalienable is to signify 

that it is inseparable from 

our humanity, and thereby 

to distinguish it from other 

sorts of rights. The most 

fundamental distinction is 

between unalienable rights 

— sometimes referred to as 

natural rights in the founding 

era and today commonly 

called human rights 

— and positive rights. 

the very ideas of human nature, objective reason, and a 

creator God have come into disrepute among intellectuals, 

while the view that human beings are entirely explainable 

in terms of the physical properties of their bodies has 

grown in popularity. 

As we join in the discussion, as old as the republic, 

about the ultimate sources of unalienable rights, it is 

also proper to recognize the role of tradition in rooting 

them in the American spirit. However philosophical 

debates about reason, nature, and God might be resolved, 

the Declaration’s affirmation of rights inherent in all

human beings everywhere has, over the centuries, 

become deeply woven into American beliefs, practices, 

and institutions, and undergirds the nation’s moral and 

political inheritance. 

The Declaration also holds it to be a self-evident truth 

that the first task of political society is to ensure that
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unalienable rights are respected: “to secure these rights, 

Governments are instituted among Men.” The vindication 

of unalienable rights is indissolubly linked to political 

institutions and laws — and the community and culture

that sustain them. The Declaration adds a self-evident 

democratic principle: governments capable of securing 

unalienable rights are rooted in the people, “deriving their 

just powers from the consent of the governed.” 

The Declaration does not specify the precise shape that 

government must take — indeed, it emphasizes that the 

people have the right to institute government in such 

a form as “shall seem to them” to promote their safety 

and happiness. In this, the Declaration recognizes the 

inevitable diversity of political institutions and laws by 

which unalienable rights are secured. While the document 

attributes to no nation the right to dictate to another its 

form of government or intervene in its internal affairs,

it affirms that all nations’ political institutions and laws 

should be judged by their ability to secure the rights that 

individuals everywhere share. 

To say that a right, as the founders understood it, is 

unalienable is to signify that it is inseparable from our 

humanity, and thereby to distinguish it from other sorts 

of rights. The most fundamental distinction is between 

unalienable rights — sometimes referred to as natural

rights in the founding era and today commonly called 

human rights — and positive rights.

Unalienable rights are universal and nontransferable. They 

are pre-political in the sense that they are not created by 

persons or society but rather set standards for politics. 

They owe their existence not to the determinations of 

authorities or to the practices of different traditions but to

the fundamental features of our humanity. They are not 

founded merely on custom, law, or preference. Human 

beings never lose their unalienable rights — though they

can be violated — because such rights are essential to the

dignity and capacity for freedom that are woven into 

human nature. 

In contrast, positive rights are created by, and can only 

exist in, civil society. Positive rights owe their existence 

to custom, tradition, and to positive law, which is the 

law created by human beings. Because custom, tradition, 

and positive law vary from country to country, so too 

do positive rights. In the same country, positive rights 

may evolve over centuries, may be legislated at a distinct 

moment, and may be revised or repealed in accordance 

with the ruling authority’s decisions. 

To say that positive rights are not universal, however, is not 

to deny their importance, and to say that they are distinct 

from unalienable rights is not to deny that the two can be 

closely connected in political affairs. Unalienable rights 

provide a standard by which positive rights and positive 

law can be judged, while positive rights and positive 

law make the promise of unalienable rights concrete 

by giving expression to and instantiating unalienable 

rights. This can be seen in the American political tradition: 

the unalienable rights proclaimed in the Declaration 

are secured by the Constitution, which is the work of a 

particular people. 

Rights, whether unalienable or positive, do not exist in 

a vacuum. They imply responsibilities, beginning with 

the responsibility to respect the rights of others. Rights, 

moreover, incline us to community, since they govern 

our relations with fellow human beings and are best 

protected and most effectively exercised in civil society. In

addition, from the point of view of the founders, securing 

unalienable rights is the leading feature of the public 

interest. And the effective exercise of rights depends on 

the virtues, or certain qualities of mind and character 

including self-control, practical judgment, and courage 

that enable people to benefit from freedom; respect

the rights of others; take responsibility for themselves, 

their families, and their communities; and engage in 

self-government. 

According to the Declaration of Independence, the 

requirements of politics set limits within civil society 

on man’s natural freedom to act on conclusions about 

the justice of laws and of government. In a free society, 

the laws will leave a vast range of human activity to the 

conscience of each. At the same time, individuals are 

expected to obey duly enacted laws that issue from the 

agreed upon political framework, including those laws 

they find foolish or even contrary to the public interest. 

But citizens cannot relinquish entirely their natural 

freedom to evaluate the justice of laws. Indeed, the 

Declaration holds it to be another self-evident truth 

that if “any Form of Government becomes destructive 

of” unalienable rights, “it is the Right of the People to 

alter or to abolish it, and to institute new Government, 

laying its foundation on such principles and organizing 
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“For happily the Government of the United States, which gives to 

bigotry no sanction, to persecution no assistance requires only that 

they who live under its protection should demean themselves as 

good citizens, in giving it on all occasions their effectual support.” 

George Washington, Letter to the Jews of Newport, 1790 

its powers in such form, as to them shall seem most likely 

to effect their Safety and Happiness.” 

In the American constitutional tradition, this right of the 

people to alter or abolish government is both essential 

and highly restricted. If, as Jefferson writes, “a long train 

of abuses and usurpations, pursuing invariably the same 

Object evinces a design to reduce them under absolute 

Despotism,” then it is the people’s “right, it is their duty, 

to throw off such Government, and to provide new

Guards for their future security.” Only, however, in the 

extreme and dire circumstance in which a government 

has lost its legitimacy by systematic conduct that denies 

the very idea of unalienable rights are citizens released 

from the limitations to which they agreed to be bound 

as members of a free society and justified in establishing 

a new form of government to secure their rights. 

The aim must always be to restore political society. The 

civil liberty that political society makes possible — the

rights to travel; to enter contracts and agreements; to 

possess, use, purchase, and dispose of property; to the 

protection of person and property; to the equal application 

of criminal laws; and to fair and equal treatment in court 

— enables individuals to live safely in their families and

communities and to enjoy their unalienable rights. 

Prominent among the unalienable rights that government 

is established to secure, from the founders’ point of view, 

are property rights and religious liberty. A political society 

that destroys the possibility of either loses its legitimacy. 

For the founders, property refers not only to physical 

goods and the fruit of one’s labor but also encompasses 

life, liberty, and the pursuit of happiness. They assumed, 

following philosopher John Locke, that the protection of 

property rights benefits all by increasing the incentive for

producing goods and delivering services desired by others. 

The benefits of property rights, though, are not only

pecuniary. Protection of property rights is also central to 

the effective exercise of positive rights and to the pursuit 

of happiness in family, community, and worship. Without 

the ability to maintain control over one’s labor, goods, 

land, home, and other material possessions, neither 

can one enjoy individual rights nor can society build 

a common life. Moreover, the choices we make about 

what and how to produce, exchange, distribute, and 

consume can be tightly bound up with the kinds of 

human beings we wish to become. Not least, the right 

of private property sustains a sphere generally off limits to

government, a sphere in which individuals, their families, 

and the communities they form can pursue happiness in 

peace and prosperity. 

The importance that the founders attached to private 

property only compounds the affront to unalienable

rights involved at America’s founding in treating fellow 

human beings as property. It also explains why many 

abolitionists thought that owning property was a necessary 

element of emancipation: only by becoming propertyowning citizens could former slaves exercise economic 

independence and so fully enjoy their unalienable rights. 

Religious liberty enjoys similar primacy in the American 

political tradition — as an unalienable right, an enduring

limit on state power, and a protector of seedbeds of civic 

virtues. In 1785, James Madison gave classic expression to 
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President 

George Washington 

its centrality in founding-era thinking in his “Memorial 

and Remonstrance Against Religious Assessments.” 

Quoting the Virginia Declaration of Rights’ definition 

of religion, Madison wrote, “we hold it for a fundamental 

and undeniable truth, ‘that Religion or the duty which 

we owe to our Creator and the manner of discharging it, 

can be directed only by reason and conviction, not by 

force or violence.’” Freedom of conscience in matters 

of religion is unalienable “because the opinions of men, 

depending only on the evidence contemplated by their 

own minds cannot follow the dictates of other men.” 

While government may practice intolerance and enforce 

orthodoxy, it can never, in Madison’s view, coerce true 

religious belief or compel genuine religious worship. That 

is because faith and worship performed under the threat 

of violence, lacking conviction and holy intent, cannot 

qualify as the discharge of religious duty. 

Madison maintains that religious liberty is also unalienable 

“because what is here a right towards men, is a duty towards 

the Creator.” The duty to exercise reason in determining 

the content and scope of one’s religious obligations is akin 

to the duty to exercise reason in determining the content 

and scope of justice and the obligations that it imposes. 

Governments that respect unalienable rights preserve the 

ability of those who live under them to determine and 

pursue, consistent with the like right of others, what is 

fitting, proper, and good.

Some mistakenly suppose that so generous a conception 

of liberty must rest on skepticism about salvation and 

justice. Why give people freedom to choose if God’s 

will and the imperatives of justice are knowable? In fact, 

a certain skepticism is involved, but it is directed not 

at faith and justice but at the capacity of government 

officials to rule authoritatively on the deepest and greatest

questions. The Madisonian view of religious liberty — like

the view to which Jefferson gave expression in his Virginia

Bill for Religious Freedom — proceeds from a theistic

premise about the sources of human dignity even as it 

denies the state the power to dictate final answers about 

ultimate matters. 

Drawing on the modern tradition of freedom and their 

Biblical heritage, the American founders saw themselves 

as intellectual and political pioneers of religious 

liberty. When in 1787, two years after his Memorial 

and Remonstrance, Madison and his colleagues at the 

Constitutional Convention in Philadelphia incorporated 

into the new charter of government a ban on religious 

tests for public office, America took a step that no other 

nation had ever taken. In 1788, at a parade in Philadelphia 

celebrating the ratification of America’s new system

of government, Dr. Benjamin Rush, who signed the 

Declaration, marveled at the sight of the religious leaders 

of the city’s diverse faiths walking arm in arm. “There 

could not have been a more happy emblem contrived” 

of the Constitution, Rush observed, because it “opens 

all its power and offices alike, not only to every sect of

Christians, but to worthy men of every religion.” 

President George Washington captured the new path his 

young nation was taking in his 1790 letter to the Jews of 

Newport. Unlike Europe, which still imposed liabilities 

based on religion and regulated the public expression of 

faith, the United States guaranteed people irrespective 

of their faith the equal enjoyment of religious freedom: 

“All possess alike liberty of conscience and immunities 

of citizenship.” The United States secured religious 

freedom not grudgingly but graciously: “It is now no 

more that toleration is spoken of, as if it was by the 

indulgence of one class of people, that another enjoyed the 

exercise of their inherent natural rights. For happily the 

Government of the United States, which gives to bigotry 

no sanction, to persecution no assistance requires only 
THE DISTINCTIVE AMERICAN RIGHTS TRADITION

15 

that they who live under its protection should demean 

themselves as good citizens, in giving it on all occasions 

their effectual support.”

B. THE CONSTITUTION 

The genius of the Constitution, which was drafted in 

1787 and came into effect in 1788, was to establish a

unique design for a government capable of securing 

the unalienable rights affirmed by the Declaration of

Independence. The Constitution translates the universal 

promise of fundamental rights belonging to all persons 

into the distinctive positive law of the American republic. 

According to the Preamble, the Constitution’s aims 

are manifold: “We the People of the United States, in 

Order to form a more perfect Union, establish Justice, 

insure domestic Tranquility, provide for the common 

defence, promote the general Welfare, and secure the 

Blessings of Liberty to ourselves and our Posterity, do 

ordain and establish this Constitution for the United 

States of America.” In seven austere articles, the original 

Constitution — the drafting and ratification of which

were themselves extraordinary acts of self-government 

— sets forth institutional arrangements that enabled

the people to rule themselves while respecting freedom 

and equality. 

The primary means by which the Constitution enables 

the people to secure those blessings is through the 

structure it gives to, and the limitations it imposes 

on, government. Limited government is crucial to the 

protection of unalienable rights because majorities are 

inclined to impair individual freedom, and public officials

are prone to putting their private preferences and partisan 

ambitions ahead of the public interest. This is not to 

deny the capacity for public-spirited action on the part 

of the people or public officials, but to recognize the

need for institutional safeguards for rights because of the 

unreliability of high-minded motives. Nor is it to overlook 

that, within its limits, government must act energetically 

and effectively to secure rights. 

The Constitution’s complex framework operates to 

constrain momentary whims and passing fancies of any 

given majority or officeholder; to cool the passions of

public servants as well as of the people and redirect politics 

toward constitutionally appropriate goals; and to induce 

compromise among the factions that inevitably arise in 

free societies. Government so moderated is not therefore 

passive or sluggish. Indeed, the Constitution’s design 

aims to channel energy toward the vindication of rights. 

A product of extended deliberation and complex 

negotiations, the American charter incorporates a variety 

of institutional arrangements — some of classical pedigree,

some of distinctly modern vintage, some of hybrid design 

— to secure rights by limiting government. These include

the enumeration of the federal government’s legitimate 

powers; the division of power first between state and

federal levels and then among three branches of the federal 

government; a unitary executive; a bicameral legislature; 

an independent judiciary; and, added three years after the 

original Constitution came into effect, a Bill of Rights.

Consider a few of these. The Constitution limits 

government to secure rights by confining the exercise

of government power to specified undertakings and

purposes. For example, the Constitution protects freedom 

of speech in the first place by declining to give Congress 

the power to pass laws prescribing or proscribing beliefs, 

utterances, and publications. 

Another way the Constitution limits government for 

the sake of liberty is through federalism, which disperses 

power between the national government and the state 

governments. Each level of government has its prerogatives 

and advantages. The Constitution — along with the laws

enacted and the treaties ratified under its authority by the

federal government — is “the supreme law of the land.” At

the same time, the Constitution leaves state governments, 

which stand closer to the voters, wide latitude to legislate 

for the people’s general welfare. This allows majorities in 

each state to adopt laws that best suit their communities —

to serve as “laboratories of democracy,” as Supreme Court 

Justice Louis Brandeis observed in the 20th century. It 

must be acknowledged that under the banner of states’ 

rights, states exploited federalism to shield slavery and 

prolong discrimination. Nevertheless, over the long 

run the constitutional dispersion of power between 

the U.S. government and the governments of the states 

has permitted, to a remarkable degree, individuals and 

communities throughout the land to pursue happiness 

as they understand it. 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

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A third way the Constitution limits government to 

secure rights is by separating political power into three 

distinct branches, to each of which it gives the means 

to check and balance the other two. To enact a law, for 

example, the legislative branch requires the signature of 

the president, in whom the executive power is vested, or a 

super majority in both houses of Congress. To wage war, 

the president, who is commander in chief of the armed 

forces, depends on Congress for declaring war and for 

funding that Congress can provide or withhold. The 

Supreme Court may hold as unconstitutional laws duly 

enacted by Congress and signed by the president, even as 

the president nominates judges to the federal judiciary and 

the Senate confirms them. Such checks and balances are 

designed to enable members of any one branch to thwart 

the efforts by another branch to accumulate sufficient

power to invade the people’s rights. 

Careful institutional design, however, cannot alone 

secure unalienable rights and the host of other positive 

rights through which they are realized. Public virtue — 

meaning the willing subordination of private interest 

to the common good — is also necessary. Hence the

importance of the civic-republican experience, deeply 

rooted in the country’s self-governing townships, and 

the strong families, religious communities, and variety of 

voluntary associations that stand between the citizen and 

the state. These bodies also foster private virtue including 

what Alexis de Tocqueville in Democracy in America 

called “self-interest well understood,” which involves 

cultivation of the self-discipline and skills crucial to the 

achievement of one’s goals. 

In The Federalist, the unsurpassed commentary on the 

Constitution, James Madison highlights the dependence 

of the American experiment in free and democratic 

government on the character and competence of its 

citizens. For the most part, The Federalist concentrates 

on explaining how the new government incorporates 

institutional arrangements that deal with the 

vulnerabilities of freedom and democracy in a manner 

consistent with freedom and democracy. “In the extent 

and proper structure of the Union,” Madison writes in 

Federalist No. 10, “we behold a republican remedy for 

the diseases most incident to republican government.” 

But institutional remedies are “auxiliary precautions,” 

Madison emphasizes in Federalist No. 51. Because “a 

dependence on the people is, no doubt, the primary 

control on the government,” the securing of rights 

cannot be separated from the virtues — private as well

as public — of the citizens, who must hold their elected 

representatives accountable. 

In the 55th installment, Madison underscores the tight 

link between securing freedom and citizens’ character. 

While acknowledging the weaknesses of human 

nature, he also emphasizes citizens’ capacity, and the 

Constitution’s need, for virtue: “As there is a degree of 

depravity in mankind which requires a certain degree of 

circumspection and distrust, so there are other qualities 

in human nature which justify a certain portion of esteem 

and confidence. Republican government presupposes

the existence of these qualities in a higher degree than 

any other form.” Whereas monarchy depends on the 

virtues of one person, and aristocracy on the virtues of 

the few, a republic — that is, representative government 

grounded in unalienable rights — relies on the virtues of

the people since, as citizens, all share in the responsibilities 

of self-government. 

While recognizing that virtue was indispensable to the 

protection of rights, the Constitution’s framers aimed 

to minimize dependence on excellent character. Led by 

Madison, they fashioned a government that would have 

the energy and institutional means to protect individual 

freedom but not enough authority or leeway to impair 

the people’s rights. As Alexander Hamilton argued in 

Federalist No. 84, “the Constitution is itself, in every 

rational sense, and to every useful purpose, A BILL OF 

RIGHTS.” Hamilton meant that the Constitution’s 

structure would do more to protect the people’s rights 

—unalienable and positive — than would any formal list 

of privileges and immunities. 

Nevertheless, in 1791, three years after the Constitution’s 

ratification, the young nation added a Bill of Rights. The

enumerated rights in the first ten amendments to the

Constitution gave symbolic heft and concrete backing 

to the limitations on government power incorporated 

into the Constitution’s structure. They also did more. By 

reinforcing the original Constitution’s safeguards against 

arbitrary government action, they ensured ample room 

for democratic politics. The guarantees afforded by the 

Bill of Rights against government overreach — along

with the more general safeguards built into constitutional 

structure — allowed for the development of an engaged 

citizenry, without which government cannot be expected 

to secure freedom under law. 
THE DISTINCTIVE AMERICAN RIGHTS TRADITION

17 

President 

Abraham Lincoln 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

18 

 

 

The First Amendment’s protection of religious freedom, 

for example, promotes not merely toleration for a diversity 

of faiths and forms of worship but welcomes persons of all 

faiths as full citizens. Its guarantees of freedom of speech, 

press, peaceful assembly, and petition of government 

enable citizens of diverse views to exchange opinions, to 

hear and be heard, and to hold their leaders up to public 

scrutiny. Through the constant interplay of advocacy and 

criticism, citizens can acquire the information necessary 

to form reasoned views of the leading issues of the day, to 

choose suitable representatives, and to determine when 

representatives have worn out their welcome and must 

be replaced. 

Similarly, the Second Amendment’s “right of the people 

to keep and bear arms” is bound up with “a well-regulated 

militia” — that is, a local association created to defend the

community. The right to self-defense, in the American 

tradition, both provides opportunities for citizens to 

develop habits of self-reliance and protects against a 

tyrannical state. 

The Third Amendment through the Eighth Amendment 

ensure the people’s ability to secure a stake in the 

community and discharge the obligations of private 

and public life. The Third Amendment safeguards the 

sanctity of the household by preventing government 

from commandeering houses in peace time and lawlessly 

in war. The Fourth Amendment shields the people from 

“unreasonable searches and seizures” and warrants that 

lack “probable cause.” The Fifth Amendment guarantees 

that no person shall “be deprived of life, liberty, or 

property, without due process of law” and prohibits the 

taking of private property for public use without “just 

compensation.” The Sixth Amendment’s and Seventh 

Amendment’s guarantees of the right to trial by jury in 

criminal cases foster a knowledgeable and responsible 

citizenry directly involved in deliberations and judgments 

crucial to the fate of fellow citizens and the community’s 

well-being. Such a citizenry is better able to exercise wisely 

the rights to life, liberty, and the pursuit of happiness. 

The Eighth Amendment promises that imprisonment 

and punishment will be proportional to allegations and 

judicial findings.

The Ninth and Tenth Amendments emphasize that 

neither the Bill of Rights nor the Constitution of which 

it is a part are exhaustive. The Ninth Amendment’s 

affirmation of unenumerated rights retained by the people

and the Tenth Amendment’s assertion of powers reserved 

to the states or the people underscore the dependence 

of citizenship in a free society on the pre-political rights 

from which the people’s pre-political powers derive. These 

amendments also call attention to the never-ending task 

of interpretation concerning the reach of rights and the 

extent of political power. That task falls to all branches of 

government and to the people, from whom all political 

power derives and for the sake of whose rights it is 

legitimately exercised. 

In a June 1789 speech to Congress in favor of a Bill of 

Rights, Madison stressed that despite different origins,

freedom is a function of positive rights elaborated in 

various legal codes as well as of rights that belong to all 

human beings. “Trial by jury,” he observed, “cannot be 

considered as a natural right, but a right resulting from 

the social compact which regulates the action of the 

community, but is as essential to secure the liberty of 

the people as any one of the pre-existent rights of nature.” 

C. LINCOLN’S RETURN TO 

THE DECLARATION 

Despite the protections afforded by the Bill of Rights

and more broadly by the structural features of the federal 

government, the original Constitution betrayed the 

promise of unalienable rights by giving legal protection to 

slavery. While many opposed slavery in the founding era, it 

had become apparent to those who met in Philadelphia in 

the summer of 1787 to draft a new charter of government 

that the Constitution could not be ratified and the union

could not be preserved unless the institution of slavery 

was permitted. The wisdom of that compromise is still 

debated. Nevertheless, the very compromise that gave 

slavery legal protection created a political framework 

through which the United States would ultimately abolish 

slavery and enshrine in law equality without regard to race. 

The Constitution alludes to slavery in three of its 

provisions. For the purpose of apportioning representation 

in the House of Representatives and imposing direct taxes, 

Article I, Section 2 distinguishes between “free Persons,” 

each of whom counts as one, and “other Persons,” each of 

whom countsas three fifths. (The goal was to reducethe 

political representation of states that held a portion of their 

population in bondage.) Article I, Section 9 protected 
THE DISTINCTIVE AMERICAN RIGHTS TRADITION

 

 

 

19 

“The Migration or Importation of such Persons as any 

of the States now existing shall think proper to admit” 

until 1808 (when Congress outlawed the slave trade). 

And Article IV, Section 2 provides that a “person held to 

Service or Labour in one State under the Laws thereof,” 

who escapes to another state must on demand be returned 

to the party to whom the work is due. It is telling that, 

even as these provisions gave constitutional sanction to 

ownership in people, the framers deliberately avoided use 

of the words “slave” and “slavery.” By speaking of slavery 

briefly and by means of euphemism, the Constitution

awkwardly acknowledged the abysmal conflict between 

owning other people and the unalienable rights on which 

the American experiment rested. 

Many have held that the Constitution is fatally flawed

because of its compromise with slavery. In an 1854 

Fourth of July rally, prominent abolitionist William Lloyd 

Garrison denounced the Constitution as “a covenant 

with death and an agreement with Hell,” and “null and 

void before God.” 

Others insisted that the Constitution contained the 

seeds of slavery’s elimination. Originally, the former 

slave Frederick Douglass agreed with Garrison. Later, 

though, in his own Fourth of July oration, he said, “In that 

instrument, I hold there is neither warrant, license, nor 

sanction of the hateful thing; but interpreted, as it ought 

to be interpreted, the Constitution is a GLORIOUS 

LIBERTY DOCUMENT.” Whether or not that 

statement was a rhetorical device, for the rest of his life 

Douglass argued for abolition and equal rights for black 

Americans within the framework of America’s founding 

principles. 

Abraham Lincoln maintained that the Constitution and 

the moral and political commitments that informed it 

made a decisive contribution to the abolition of slavery. 

The American founding set slavery, he stated in 1858 in 

Springfield, Illinois, “in the course of ultimate extinction.”

The key, according to Lincoln, was the Declaration of 

Independence’s affirmation of rights shared equally by

all. The signers of the Declaration, he had explained the 

year before, “did not mean to assert the obvious untruth, 

that all were then actually enjoying that equality, nor 

yet, that they were about to confer it immediately upon 

them.” In any case, the founders “had no power to confer 

such a boon. They meant simply to declare the right, 

so that the enforcement of it might follow as fast as 

circumstances should permit.” The founders intended 

“to set up a standard maxim for free society, which should 

be familiar to all, and revered by all; constantly looked to, 

constantly labored for, and even though never perfectly 

attained, constantly approximated, and thereby constantly 

spreading and deepening its influence, and augmenting 

the happiness and value of life to all people of all colors 

everywhere.” 

In 1863, in his solemn, succinct, and luminous address to 

commemorate the fallen soldiers at Gettysburg, President 

Lincoln effected a subtle shift in America’s relation to

unalienable rights. “Four score and seven years ago our 

fathers brought forth on this continent, a new nation, 

conceived in Liberty, and dedicated to the proposition that 

all men are created equal,” he declared. Lincoln stressed 

dedication to the nation’s overriding purpose. Plunged 

into civil war by the controversy over slavery, the nation 

needed to go beyond affirming individual freedom and 

human equality. The nation was obliged to achieve them. 

Lincoln summoned the nation “to be dedicated here to the 

unfinished work” advanced by the soldiers’ noble sacrifices,

“to be here dedicated to the great task remaining before 

us.” That great task consisted in ensuring “that this nation, 

under God, shall have a new birth of freedom — and that

government of the people, by the people, for the people, 

shall not perish from the earth.” To preserve America’s 

experiment in free and democratic government, it would 

be necessary for the people to engage in politics and reform 

the law to secure for everyone under the Constitution’s 

purview the rights inherent in all persons. 

In the wake of the Union victory in the spring of 1865, 

the nation gave formal expression to this new dedication 

to freedom by thrice amending the Constitution. The 

13th Amendment (1865) abolished slavery. The 14th 

Amendment (1868) established birthright citizenship and 

provided due process and equal protection of the laws 

for all persons. The 15th Amendment (1869) prohibited 

the denial of the right to vote on the basis of race. All 

three Reconstruction amendments substantially increased 

the federal government’s power by explicitly making it 

responsible for securing the rights they announced. All 

three amendments dedicated the Constitution to the 

unfinishedwork of vindicating the unalienablerights the

nation’s founders believed to be self-evident. 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

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In response to these transformations, American legislatures in 

the late-19th and early-20th centuries, like their counterparts 

in other industrialized countries, began to enact protections for 

workers that were often framed in the language of rights. 

Elizabeth Cady Stanton 

and Susan B. Anthony 

D. POST–CIVIL WAR REFORMS 

The protracted struggle for women’s right to vote, which 

culminated in 1920 in the passage of the 19th Amendment, 

further advanced the unfinished work of America’s

founding. At the country’s birth, married women could 

not sign contracts, lacked title to their earnings, and 

possessed no claim to their children in the event of legal 

separation. Led by Elizabeth Cady Stanton and Susan B. 

Anthony, the movement to win women the right to vote 

sought to educate the nation about the implications of the 

nation’s founding for women’s political standing. Legal 

liabilities based on sex, they argued, were incompatible 

with the dedication to unalienable rights. 

At the 1848 Seneca Falls convention, which launched 

the movement, the Declaration of Sentiments stated: 

“We hold these truths to be self-evident: that all men and 

women are created equal: that they are endowed 

by their Creator with certain inalienable rights: 

that among these are life, liberty, and the pursuit 

of happiness....” Speaking at the convention, 

Stanton also framed the issue of women’s suffrage

in terms of the Declaration: “[S]trange as it may seem to 

many, we now demand our right to vote according to the 

declaration of the government under which we live . . . 

The right is ours. Have it, we must. Use it, we will.” When 

Susan B. Anthony was sentenced for the crime of casting 

a vote as a woman in the 1872 presidential election, she 

reminded the Court that its “denial of my citizen’s right 

to vote is the denial of my right of consent as one of the 

governed, the denial of my right of representation as one 

of the taxed, the denial of my right to trial by jury of my 

peers as an offender against the law, and, therefore, the 

denial of my sacred rights to life, liberty, and property....” 
THE DISTINCTIVE AMERICAN RIGHTS TRADITION

 

21 

Changing attitudes toward women in 19th-century 

America were in part driven by the Industrial Revolution, 

which had ushered in a far-reaching transformation of the 

economy and society. The United States shifted from a 

country where the great majority of the non-slave male 

population were independent farmers, shopkeepers, and 

artisans to one in which a majority were wage earners. 

This created new forms of dependence — on employers 

— and new forms of independence as workers became

more mobile. One consequence was the unraveling of 

the safety net — for the young, the ill, the disabled, the 

unemployed, and the elderly — traditionally provided by

kinship networks and local institutions in the context of 

small, tight-knit communities. 

In response to these transformations, American 

legislatures in the late-19th and early-20th centuries, like 

their counterparts in other industrialized countries, began 

to enact protections for workers that were often framed in 

the language of rights. Following the Great Depression of 

the 1930s, the federal government expanded protections 

for the neediest members of society, protections that 

previously had been provided by local governments and 

private charities. Over the long term, the couching of 

these legislative provisions for the vulnerable in terms of 

rights has become commonplace. 

These relatively modern kinds of rights are not privileges 

to act or immunities from government action — like the

rights around which the Declaration and the Constitution 

revolve — in that they entail difficult judgments about 

the allocation of material resources. They have roots in 

America’s Biblical and civic republican traditions, and also 

in the modern tradition of freedom insofar as such rights 

cultivate the conditions within which freedom flourishes.

These kinds of rights, even more than other positive rights, 

must rely for their implementation on the judgments of 

elected representatives regarding the just use of limited 

resources. The legislative branch is thus the primary forum 

for determining the scope and content of the newer rights 

to public assistance, social benefits, economic intervention,

environmental protection, and the like. 

In his January 1944 State of the Union address, President 

Franklin Delano Roosevelt declared that “true individual 

freedom cannot exist without economic security and 

independence.” Roosevelt enumerated a set of aspirational 

principles that he called “a second Bill of Rights,” and 

that would have close analogues in the 1948 Universal 

Declaration of Human Rights. They included “[t]he 

right to a useful and remunerative job”; “the right of 

every family to a decent home”; “the right to adequate 

medical care”; “the right to adequate protection from 

the economic fears of old age, sickness, accident, and 

unemployment”; and “the right to good education.” 

In contrast to the civil and political rights that generally 

limited government power, these new principles were 

proposed as guidelines for legislative action that would 

increase government’s scope and responsibilities. Since 

both the limitation of government power and the exercise 

of government power are essential to securing life, liberty, 

and the pursuit of happiness, and because a certain level 

of material well-being is necessary for freedom, the 

new economic rights complement the older civil and 

political rights. 

Although Roosevelt stated that these economic 

principles “have become accepted as self-evident,” their 

implementation remains contested. Social and economic 

rights are most compatible 

with American founding 

principles when they serve 

as minimums that enable 

citizens to exercise their 

unalienable rights, discharge 

their responsibilities, and 

engage in self-government. 

They are least compatible 

when they induce 

dependence on the state, 

and when, by expanding 

state power, they 

curtail freedom 

— from the rights 

of property and 

religious liberty 

to those of individuals to 

form and maintain families 

and communities. 

President 

Franklin D. Roosevelt 

Even as FDR was introducing 

new rights — or drawing out the latent implications of 

unalienable ones — the United States continued to deprive

African Americans of theirs. The abolition of slavery had 

not ended discrimination based on race. After a relatively 

brief period of Reconstruction following the Civil War, 

the former Confederate states adopted new constitutions 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

22 

“When these disinherited children of God sat down at lunch counters, 

they were in reality standing up for what is best in the American 

dream and for the most sacred values in our Judeo-Christian heritage, 

thereby bringing our nation back to those great wells of democracy 

which were dug deep by the founding fathers in their formulation 

of the Constitution and the Declaration of Independence.” 

Martin Luther King, Jr., 1963 

and enacted 

electoral laws 

that effectively 

Frederick Douglass 

disenfranchised black 

voters. In addition, in 

the 1880s these states 

instituted Jim Crow laws, 

which imposed mandatory 

racial segregation in public 

facilities, on public modes 

of transportation, and 

inside retail stores. Even 

the New Deal’s sweeping 

reform of labor law 

excluded agricultural and 

domestic workers, a large 

proportion of whom were 

members of racial and 

ethnic minorities. 

In the aftermath of World 

War II, the nation took 

crucial steps to realize more fully the Declaration’s 

promise. These steps owed much to the growing civil 

rights movement and embarrassment over the stark 

contrast between America’s fight for freedom abroad

and the country’s legalized subordination of African 

Americans at home. In 1948, President Harry Truman 

ordered the desegregation of the armed forces, which 

paved the way for the civil rights era by enabling young 

men of different races to know, befriend, and rely upon 

one another as they served their country side-by-side. In 

1954, in Brown v. Board of Education, the nine justices 

of the United States Supreme Court unanimously held 

that segregation in public schools was unconstitutional. 

One year later in Montgomery, Alabama, then-42-yearold Rosa Parks bravely refused to relinquish her seat on 

a bus to a white passenger. The Supreme Court’s bold 

decision in Brown and Rosa Parks’ courageous action 

were critical components of a movement that within a 

decade eliminated in the United States legally mandated 

race-based discrimination. 

Over the course of the struggle, multiple understandings 

emerged about the relation between America’s founding 

principles and the quest for civil rights for black Americans. 

Dr. Martin Luther King, Jr. approached the challenge in 

the spirit of Jefferson, Douglass, Lincoln, Stanton, and 

Anthony. King conceived of equal treatment for black 

Americans under law not as a deviation from America’s 

founding principles but, as he stated from the steps of the 

Lincoln Memorial in his 1963 “I Have a Dream” speech, a 

fulfillment of “a promissory note” which those principles

provided to all Americans. 

In the spring of that year, in “Letter from a Birmingham 

Jail,” King had emphasized the importance of America’s 

founding principles to the achievement of justice for 

America’s black citizens. He had been jailed after the 

Southern Christian Leadership Conference and other 

groups organized non-violent demonstrations and 

economic boycotts in response to police brutality, 

lynching, racial disparities in prosecution and sentencing, 

and other forms of gross racial discrimination throughout 

the South. King’s letter was prompted by white clergy who 

reproached him for breaking Birmingham’s prohibition 

on “parading, demonstrating, boycotting, trespassing 

and picketing.” Responding from his prison cell, King 
Martin Luther King, Jr. delivers “I Have A Dream” speech, 1963 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

24 

 

wrote, “We have waited for more than 340 years for our 

constitutional and God given rights.” He explained 

that non-violent protests involving violation of unjust 

laws, coupled with a willingness to accept the prescribed 

punishment, were sometimes critical to vindicating the 

rule of law. Such peaceful civil disobedience — designed 

not to undermine the law but rather to call it to its 

fundamental purpose — was fully within America’s

tradition of unalienable rights, King contended: “[W]hen 

these disinherited children of God sat down at lunch 

counters, they were in reality standing up for what is best 

in the American dream and for the most sacred values 

in our Judeo-Christian heritage, thereby bringing our 

nation back to those great wells of democracy which were 

dug deep by the founding fathers in their formulation of 

the Constitution and the Declaration of Independence.” 

Not all of King’s fellow African Americans agreed that 

the path to freedom was to be found within America’s 

constitutional framework. For a time, black-nationalist 

Malcolm X took a different view, condemning King’s

“I Have a Dream” speech on the ground that for many 

African Americans, life in the United States was more 

like a “nightmare.” Influenced by forebears such as

Marcus Garvey and Elijah Muhammad, black nationalists 

demanded change sometimes at odds, and sometimes in 

concert, with the civil rights movement. Some lamented 

institutional racism and advocated on behalf of black 

power — arguing that prosperity would be achieved

through black sovereignty rather than through integration. 

Many of these efforts proved ill-conceived but they often

had a point that echoed the best in America. For example,

in insisting that white people cannot “give” freedom to 

other races because every man is born with such freedom,

activists hearkened back to the opening words of the 

Declaration of Independence. And in shifting focus from 

“civil” rights to “human” rights, as Malcolm X did in his 

1964 “The Ballot or the Bullet” speech, they called on 

the universal standard affirmed by Jefferson, Douglass,

Lincoln, Stanton, Anthony, and King. In that speech, 

Malcolm X advocated taking “Uncle Sam” to the United 

Nations so that the world could judge him guilty of 

violating the human rights of African Americans. Despite

their harsh criticism of the American status quo and 

sharp disagreement with King over tactics necessary 

to effect change, black nationalists often displayed a

strong belief that rights are not illusory, they apply to all 

human beings everywhere, and that the appeal to them 

advanced justice — the very ideas in which the United

States was rooted. 

It was, however, King’s summons, at once sober and 

impassioned, to reform American political institutions 

in light of the founding promise of unalienable rights 

that culminated in the passage of the 1964 Civil Rights 

Act and the 1965 Voting Rights Act. These landmark 

legislative measures were instrumental in further weaving 

equality in civil and political rights into the fabric of law 

in the United States. Much has been accomplished in 

building a country where each person, as King wished 

for his children, is judged not by color of skin but by 

content of character. The brutal killing of an AfricanAmerican man by a police officer in the late spring of 2020

and the subsequent civic unrest that swept the country 

underscore that much still must be accomplished. Indeed, 

appreciation of the work that remains, of its urgency 

and importance, is itself a crucial element of America’s 

distinctive rights tradition. 

As circumstances change, Americans will continue to 

debate the scope and implications of America’s grounding 

in, and dedication to, unalienable rights. This vital 

discussion about what kind of people and nation we 

wish to become predates the country’s founding and is a 

key source of the American rights tradition’s dynamism. 

As it has since its ratification almost 250 years ago, the

Constitution continues to secure the rights that enable 

the American people to address enduring controversies 

about how to assess new rights claims, and how to manage 

tensions among and competing interpretations of existing 

rights that mark a free and self-governing people. 

In the case of civil and political rights, the challenge has 

been to respect the rights of members of groups wrongly 

denied them. But as in the case of economic rights, so too 

with certain social rights: they have proven controversial 

because they frequently involve a clash of rights claims. 

In divisive social and political controversies in the United 

States — abortion, affirmative action, same-sex marriage

— it is common for both sides to couch their claims in

terms of basic rights. Indeed, it is a testament to the deep 

roots in the American spirit of our founding ideas about 

unalienable rights that our political debates continue to 

revolve around the concepts of individual freedom and 

human equality, even as we disagree — sometimes deeply
THE DISTINCTIVE AMERICAN RIGHTS TRADITION

 

 

 

 

25 

— on the proper interpretation and just application of

these principles. 

The increase in rights claims, in some ways overdue 

and just, has given rise to excesses of its own. Not all 

government forbearance or intervention that benefits

some or even all citizens is for that reason a right, and 

not every right that democratic majorities choose to 

enact is therefore unalienable. The temptation to cloak 

a contestable political preference in the mantle of human 

rights, which are held to be objectively and universally true, 

and seek a final and binding judgment from a court, tends

to choke off democratic debate, which is itself critical

to self-government and therefore to the protection of 

unalienable rights. At the same time, what may appear 

to be a new right will sometimes be better understood as 

reflecting a more refined understanding amid changing 

circumstances of the implications of America’s dedication 

to unalienable rights. 

E. AMERICA’S FOUNDING 

PRINCIPLES AND THE WORLD 

Unalienable rights direct attention to the relation between 

citizens and the government to which they have consented. 

Yet as rights inherent in all human beings, they also have 

implications for the conduct of foreign affairs. Indeed,

the Declaration of Independence was inspired in part 

by “a decent respect to the opinions of mankind,” which 

compelled the founders to “declare the causes which impel 

them” to vindicate their unalienable rights by setting up 

a new form of government. 

The implications for foreign affairs of the nation’s

grounding in human rights are more diffuseand indirect

than they are for domestic affairs, but the self-evident

truths concerning individual freedom and human equality 

on which the United States was founded nevertheless 

should inform and elevate America’s conduct in the world. 

Dedication to rights and democracy does not confer the 

authority nor entail the obligation to forcibly change 

regimes or to otherwise coerce nations to accept the 

interpretation of unalienable rights favored by majorities 

in the United States. The American grounding in 

unalienable rights is not a license to override other people’s 

rights to determine their form of government. But such 

dedication does give the United States an interest in 

supporting liberal democracy as the form of government 

best suited to protecting rights; in promoting a freer and 

more open international order, one that is friendlier to 

claims of human rights and democratic self-government; 

and in standing with peoples everywhere who seek the 

dignity that comes from living under a government that 

respects individual freedom and equality under law. 

Promoting unalienable rights abroad can take many forms 

consistent with the sovereignty of other nation-states. By 

seeking to make itself a more perfect union, the United 

States can serve as a model experiment in freedom and 

equality under law. The United States can, working 

with friends and partners, preserve a free and open 

international order that fosters commerce and diplomacy 

among nations and thereby promotes prosperity and the 

peaceful resolution of disputes. The United States can 

exercise influence abroad — with countries that curtail 

fundamental rights and with people seeking to claim 

their own — by proudly and persistently reaffirming

its dedication to the rights all human beings share, not 

least by means of high-profile meetings held by senior

U.S. officials with courageous dissidents and victims of 

persecution. The United States can provide foreign aid 

as well as training in free institutions and education in 

the principles of freedom to countries undertaking to 

expand their commitment to rights. The United States 

can transmit news and commentary to those who live 

under governments that deprive them of access to robust 

political debate. And the United States can impose 

sanctions to deter gross violations of human rights. 

Diplomacy is always to be preferred but is sometimes 

inadequate. The United States must remain prepared, 

always as a last resort, to defend its sovereign independence 

and territorial integrity, a right the nation’s Declaration 

ascribes to all peoples. And in today’s interconnected 

world, the defense of freedom at home may require the 

United States to come to the aid of friends of freedom 

abroad in repelling the aggression of freedom’s enemies. 

Perhaps the United States’ most explicit commitment 

to promoting abroad the rights all human beings share 

received expression in the undertaking that culminated 

in December 1948 with the approval in the UN General 

Assembly of the Universal Declaration of Human 

Rights. By taking that step, the United States affirmed

the correspondence between its founding convictions 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

26 

By elevating human 

dignity and freedom 

and basic claims of 

justice to matters of 

general international 

concern, the 

Universal Declaration 

gave voice to the 

conscience of global 

humanity for the 

first time in history.

UN General Assembly approves UDHR, December 10, 1948 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

 

27 

The UDHR’s 30 articles articulate a fairly small number 

of rights. It includes only those that were capable 

of attaining a near-universal consensus among the 

diverse nations represented at the United Nations. 

and the UDHR’s universal political standard. In the 

post–World War II, atomic-age world — rendered smaller

and more interconnected by successive revolutions in 

transportation and communications — Americans

embraced the obligation to foster, as the UDHR states, 

“universal respect for and observance of human rights and 

fundamental freedoms.” Since then, much of American 

diplomacy can be seen as a struggle to integrate the 

obligation to advance human rights around the world 

with the variety of other obligations that go into the 

formation of a coherent foreign policy suitable for the 

world’s most prosperous and powerful liberal democracy. 

III. U.S. COMMITMENTS TO 

INTERNATIONAL RIGHTS 

PRINCIPLES 

The idea that certain principles are so fundamental as to 

apply to all human beings everywhere was, as we have 

seen, embedded in the American founding, and has an 

ancient pedigree in the world’s religious and philosophical 

traditions. Yet the question of what universality might 

mean in the modern world loomed large in 1945 when 

the newly founded United Nations embarked on the 

preparation of what was then called an “International Bill 

of Rights.” So large, in fact, that UNESCO convened a 

group of the world’s best known philosophers in 1947 

to study whether an agreement on basic principles was 

“conceivable among men who come from the four corners 

of the earth and who belong not only to different cultures

and civilizations, but to different spiritual families and

antagonistic schools of thought.” 

After consulting widely with Confucian, Hindu, Muslim, 

and Western thinkers, the UNESCO philosophers 

reported that “certain great principles” were widely 

shared, though “stated in terms of different philosophic 

principles and on the background of different political

and economic systems.” Their survey indicated that 

some things are so terrible in practice that almost no 

one will publicly approve them, and that there are certain 

goods so widely valued that almost no one will publicly 

oppose them. That was enough, in their view, to make 

agreement on an international declaration possible. Such 

a document, they advised, should not aim “to achieve 

doctrinal consensus but rather to achieve agreement 

concerning rights, and also concerning action in the 

realization and defense of rights, which may be justified 

on highly divergent grounds.” 

On December 10, 1948, the philosophers’ assessment 

was validated when the UN General Assembly approved 

the Universal Declaration of Human Rights without a 

single dissenting vote. On that solemn occasion, the chair 

of the Commission that had presided over its drafting 

reminded the delegates that the rights in UDHR were 

statements of principles yet to be realized. “[I]t is of 

primary importance,” Eleanor Roosevelt said, “that we 

keep clearly in mind the basic character of the document. 

It is not a treaty; it is not an international agreement. It 

is not and does not purport to be a statement of law or 

of legal obligation. It is a Declaration of basic principles 

of human rights and freedoms...to serve as a common 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

28 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

 

29 

standard of achievement for all peoples of all nations” 

(emphasis added). 

As was the case with the U.S. Declaration of Independence, 

the principles affirmed in the UDHR were far from

reflecting the reality of the times. In 1948, no country in 

the world could be said to have met the standards toward 

which they pledged to aim. What Abraham Lincoln had 

said of the Declaration of Independence could well be said 

of the UDHR: “They meant to set up a standard maxim 

for free society which should be familiar to all, constantly 

looked to, constantly labored for, and even, though never 

perfectly attained, constantly approximated, and thereby 

constantly spreading and deepening its influence, and

augmenting the happiness and value of life to all people, 

of all colors, everywhere.” As Mrs. Roosevelt put it when 

urging the General Assembly to approve the UDHR, “Let 

us, as Members of the United Nations, conscious of our 

own shortcomings and imperfections, join our effort in 

good faith to live up to this high standard.” 

The achievement of consensus on the principles in the 

UDHR was a historic milestone, and a major step toward 

setting conditions for their gradual realization. In the 

case of the United States, those principles were highly 

compatible with, and on some points directly reflected 

the influence of, the principles embedded in America’s 

own rights tradition. 

A. THE UNIVERSAL DECLARATION OF 

HUMAN RIGHTS AND THE UNITED STATES 

As the world began to emerge from the devastation of the 

Second World War, the place of human rights in the new 

global order was far from clear. Other pressing concerns —

from economic reconstruction to the emerging Cold War 

and the stirrings of postcolonial independence movements 

— occupied the attention of the more powerful countries,

including the United States. But the United States’ 

stated war aims (including in the Atlantic Charter 

which envisioned a postwar order built around ideals 

of peace, self-government, and economic security), the 

advocacy of various U.S. civic and religious groups, and 

the diplomatic work of exceptional individuals from many 

countries (including in particular from Latin America and 

from several smaller and less powerful nation-states) all 

Eleanor Roosevelt encouraged the United States government to play a key 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

30 

 

 

role in advancing the incorporation of human rights into 

the postwar framework of international relations and law. 

Without U.S. State Department support, it is unlikely 

that human rights would have figured prominently in

the UN Charter, or that the first UN Human Rights

Commission would have been tasked with drawing up 

an “International Bill of Rights.” 

In drafting, negotiating, and revising the document that 

became the UDHR, the political ideals and traditions 

of the United States played a major role. Echoes of 

U.S. founding principles can be heard in the UDHR’s 

Preamble: “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.” The second paragraph evokes FDR’s 

Four Freedoms speech, calling for a “world in which 

human beings shall enjoy freedom of speech and belief 

and freedom from fear and want.” The first 21 articles

of the UDHR track well with the “unalienable rights” of 

the Declaration of Independence and with the classically 

liberal civil and political rights enshrined in the U.S. Bill 

of Rights and the Reconstruction amendments to the 

U.S. Constitution. These UDHR articles include “the 

right to life, liberty and security of person”; protection 

against slavery and torture; guarantees of equality before 

the law and of due process; recognition of the right to 

private property; and the enumeration of other rights 

necessary to the preservation of liberty in a constitutional 

democracy, such as freedom of thought, conscience, and 

religion; freedom of opinion and expression; freedom of 

association; freedom to take part in elections by universal 

and equal suffrage; and more.

Other rights in the UDHR — the right to freedom of

movement and residence; the right to marry and found 

a family; and the right to privacy in one’s family, home, 

and correspondence — may not have direct analogues in

the U.S. Bill of Rights but nevertheless resonate deeply 

with other sources of America’s law and political culture, 

including U.S. Supreme Court jurisprudence. The “social 

and economic rights indispensable for [a person’s] dignity 

and the free development of his personality,” in Articles 

22-28 of the Universal Declaration, are similar to those in 

many 20th-century constitutions and statutes. While these 

rights — to work, education, and a certain standard of

living — generally do not have constitutionally-protected

status in the United States, they are almost all familiar 

goals of basic social legislation dating back to the New 

Deal, and were explicitly recognized as such by the 

U.S. delegation to the United Nations as the Universal 

Declaration was being drafted. 

B. READING THE UNIVERSAL DECLARATION 

In short, even a quick, preliminary reading of the Universal 

Declaration of Human Rights reveals many parallels to the 

fundamental constitutional and political principles of the 

United States. Indeed, the UDHR belongs to the same 

modern tradition of freedom as does the Declaration of 

Independence, the U.S. Constitution, and the nation’s 

quest to honor its founding principles. A closer reading of 

the UDHR brings into focus the document’s overarching 

principles and structural dimensions and their connection 

to the U.S. founding and to U.S. foreign policy. 

First, at a distance of over 70 years, it is easy to take 

for granted what an extraordinary and unprecedented 

event it was for 48 nations — across divides of culture,

language, history, religion, ideology, political structure, 

and economic system — to agree on a common set of

principles governing their basic relations with their own 

citizens. By elevating human dignity and freedom and 

basic claims of justice to matters of general international 

concern, the Universal Declaration gave voice to the 

conscience of global humanity for the first time in history.

In the past, notions of state sovereignty and domestic 

jurisdiction effectively shielded states from international

condemnation and intervention even in cases of very grave 

abuses. The Universal Declaration changed that. Taken as 

a whole, it proclaims the principle that the protection of 

fundamental human rights in any state is of importance to 

the community of nations because such rights are part of a 

universal common good. The question of the relationship 

of sovereignty to human rights remains a complex and 

delicate one. But after the Universal Declaration, no 

state may reasonably claim that the treatment of its own 

citizens in matters of human rights is solely a question of 

its own domestic affairs. Instead, international criticism 

and accountability for serious violations of human rights 

have become the default expectation of the community 

of nations. 

Second, in order to attain agreement on principles 

that encompassed centuries of modern thought about 

individual freedom and human equality, the nature of 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

31 

In all these ways, the idea of human dignity at the heart 

of the Universal Declaration converges with the idea of 

“unalienable rights” in the American political tradition. 

responsibility, and the limits of sovereignty, the framers 

of the Universal Declaration deliberately chose to draw 

up a spare document. The UDHR’s 30 articles articulate 

a fairly small number of rights. It includes only those 

that were capable of attaining a near-universal consensus 

among the diverse nations represented at the UN. 

Moreover, most of those rights that did get included 

were expressed in open-ended terms in order to achieve 

consensus and garner widespread support. 

Third, the Universal Declaration was written and 

understood as an integrated set of interlocking principles. 

Each principle was like an instrument that made an 

essential contribution to the harmony of the whole 

ensemble. The UDHR is not a mere list of severable, 

free-standing provisions, each understood in isolation and 

on its own terms. This means that it does violence to the 

Universal Declaration to wrench out of context any one of 

its rights at the expense of others, or to ignore one part of 

the document by focusing exclusively on another. Article 

29 of the UDHR underscores that the exercise of the 

rights and freedoms it contains are subject to limitations 

“for the purpose of securing due recognition and respect 

for the rights and freedoms of others.” This points to the 

way that each right, lived in community and in relation 

to the “duties to the community” (also recognized in 

Article 29), is part of an interrelated set that must be 

approached in a balanced way. The document’s power and 

persuasiveness — its global resonance — depend on that

holistic understanding of individual rights in community. 

Fourth, the Universal Declaration affirms that human

dignity, freedom, equality, and community are indissolubly 

linked. Its opening words state that “recognition of 

the inherent dignity ... of all members of the human 

family is the foundation of freedom, justice, and peace 

in the world,” and it repeatedly invokes human dignity 

in other key articles. The many references to dignity 

shared equally by all are as close as the UDHR comes to 

offering a foundation for human rights. The document 

intentionally refrains from specifying the ultimate source 

of that dignity, but it does make clear that human dignity 

is inherent: it pertains to human beings solely because 

they are human beings. It cannot be granted by any 

authority. It is not created by political life or positive law 

but is prior to positive law and provides a moral standard 

for evaluating positive law. And no human life can be 

stripped of its dignity. Finally, the Universal Declaration’s 

integrated set of rights begins to flesh out the meaning 

and implications of human dignity by emphasizing the 

flourishing in community that liberty makes possible.

In all these ways, the idea of human dignity at the heart 

of the Universal Declaration converges with the idea of 

“unalienable rights” in the American political tradition. It 

is no stretch to suggest that “unalienable rights” were the 

form in which the American founders gave expression to 

the idea of an inherent human dignity. 

Fifth, it should be recognized that the Universal 

Declaration of Human Rights was intentionally crafted 

as a moral and political document, but not as a legal 

instrument creating formal law. It provides “a common 

standard of achievement” and invites a competition in 

excellence among nations. It aims to educate individuals 

about their rights and nations about their responsibilities. 

Much has been done in the decades since the approval 

of the UDHR to go beyond these aspirational and 

pedagogical goals by translating its principles into legally 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

32 

It is important to stress that the UDHR’s openness to legitimate pluralism 

does not mean that human rights are relative, that there are no truly 

universal principles of human rights, or that any claim of cultural 

specificity ought to be accepted as an excuse for violating human rights. 

binding obligations, principally through treaties. But the 

UDHR as the cornerstone of the postwar human rights 

project also implies that the responsibility to protect 

human rights universally is a moral and political obligation 

before being a legal one. While there are good reasons 

in many instances to seek to “legalize” human rights in 

international law, the success of those efforts depends

on the moral and political commitments that undergird 

the entire enterprise; without those commitments, the 

legal edifice is not likely to be accepted or effective. In

fact, human rights in a nation’s foreign policy often gain 

more force from the clarity of the nation’s moral purpose 

and political commitment than from the formality of its 

legal obligations. 

Finally, one aspect of the Universal Declaration’s overall 

structure that has been essential to attaining its global 

status as the cornerstone of the entire international human 

rights edifice is its capacity to accommodate a broadly

diverse set of political, economic, cultural, religious, and 

legal traditions. As noted, the document as a whole is 

framed in general and open-ended terms, with a minimally 

foundational appeal to human dignity without any 

specification of the source of that dignity. 

The UDHR assumes that the principles it sets forth can 

be concretely realized in different political systems. Many

of its rights are articulated in ways that allow significant 

latitude in their interpretation and application. For 

instance, the right to “a fair and public hearing before 

an independent and impartial tribunal” leaves undefined

the details of what specifically constitutes independence, 

impartiality, and even a tribunal. Moreover, the UDHR 

says almost nothing about how the various rights ought 

to be reconciled and harmonized. Where should the 

line be drawn, for instance, between the right to “equal 

protection against any discrimination” in Article 7 and the 

right to freedom of association in Article 20? Article 29 

provides for limitations on rights for purposes of “meeting 

the just requirements of morality, public order, and the 

general welfare in a democratic society,” but what might 

satisfy those “just requirements” may vary dramatically 

across social and political contexts. Furthermore, the 

language of Articles 22-26 says nothing about what kind 

of a political or economic system ought to be considered 

the most effective or appropriate to advance the social

and economic rights articulated there. Just as the U.S. 

Declaration of Independence assumes that a variety of 

laws and governments can secure unalienable rights, so too 

does the Universal Declaration contemplate a legitimate 

pluralism of laws, political institutions, and economic 

systems through which human rights can be realized. In 

both cases, appreciation of diversity is bounded by respect 

for the individual and by recognition that political power 

is rooted in the people. 

It is important to stress that the UDHR’s openness to 

legitimate pluralism does not mean that human rights 

are relative, that there are no truly universal principles 

of human rights, or that any claim of cultural specificity 

ought to be accepted as an excuse for violating human 

rights. Rather, it represents a recognition that even truly 

universal principles must be instantiated in specific

and varying contexts, and that allowing room for such 

pluralism is both consistent with principles of freedom 

and dignity and the only realistic way to attain practical 

agreement on rights across cultures and nations. This 

interplay between universal principles of human rights 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

33 

and the variety of human realities in which they must be 

honored is at the heart of the challenge of making human 

rights effective.

The idea of subsidiarity is implicit in the Universal 

Declaration, and it has been inherent in the system 

of international human rights law since its beginning. 

Subsidiarity, which has a kinship with the principle of 

federalism in the American constitutional tradition, 

affirms that, wherever possible, decisions ought to be

made at the level closest to the persons affected by them 

— starting with their primary communities — and that 

larger, more general, and distant communities should 

intervene only to help the primary ones, but not to replace 

them. Subsidiarity thus helps to hold together both the 

universality of human rights and the pluralism necessary 

to their practical realization. It accords to states significant

discretion in interpreting and implementing those 

universal principles of human rights. Subsidiarity also 

advances the idea that within states, human rights entail 

an open and pluralistic society, with a diversity of local 

communities and forms of voluntary association. That 

does not deny the primary responsibility of the state for 

the protection of human rights. Rather, subsidiarity helps 

to allocate the relative responsibilities for the realization of 

human rights, from the most local forms of community 

through states to international associations. 

C. PERSISTENT QUESTIONS 

REGARDING THE UDHR 

The six broad characteristics of the Universal Declaration 

of Human Rights outlined in the previous section give 

rise to a number of complex questions concerning the 

UDHR’s implications for U.S. foreign policy. 

1. NATIONAL SOVEREIGNTY 

AND HUMAN RIGHTS 

The advent of human rights as an area of international 

attention in the 20th century was accompanied by 

alterations in the idea of the sovereignty of nation-states. 

Some believe that these changes compromise U.S. 

sovereignty, so much so that the United States should 

be reluctant to participate in international human rights 

regimes. Rightly understood, however, the conception 

of rights and sovereignty embodied in the UDHR is 

consistent with the American constitutional tradition. 

National sovereignty serves as a crucial condition for 

securing human rights because it is typically at the level 

of the national political community that human rights 

can be protected best. The realization of human rights 

requires nation-states with the independence, capacity, 

and authority that allow them to take responsibility 

for defending human rights. Through their laws and 

political decisions, nation-states are the main guarantors 

of human rights. State sovereignty, however, should not 

be an alibi for neglecting or abusing human rights. Rather, 

sovereignty underlines the dependence of the securing 

of human rights on political order. When a nationstate asserts sovereignty as an excuse for committing or 

failing to address rights violations, the problem is not 

with the idea of sovereignty but with the flawed exercise 

of it. The proper response is the reform of the political 

order, perhaps with the help and encouragement of 

other sovereign states acting on the basis of their own 

commitments to human rights. When a nation-state 

proves bent on systematically crushing human rights, the 

community of nations should consider the full range of 

diplomatic tools to deter such assaults on human dignity. 

From the perspective of international law, tension between 

sovereignty and international human rights norms should 

be mediated by state consent. As a sovereign act, the 

United States has formally consented to be bound by 

certain norms of international human rights law. With 

few exceptions, it is only legally bound when that consent 

emerges from the constitutionally prescribed process. 

Accordingly, as a sovereign state in the international legal 

order, the United States is not compelled to ratify human 

rights treaties, but when it does so in the manner required 

by the Constitution, those treaties constitute formal 

legal obligations that give expression to — rather than

contradict — the nation’s sovereignty. 

2. RELATION OF CIVIL AND POLITICAL 

RIGHTS TO ECONOMIC AND SOCIAL RIGHTS 

The Universal Declaration’s weaving of civil and political 

rights together with economic, social, and cultural rights 

into an integrated whole poses a certain challenge for 

the United States. Unlike the Universal Declaration and 

unlike the majority of constitutions of the world that have 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

34 

been adopted since the early- to mid- 20th century, the 

U.S. Constitution does not generally recognize, let alone 

entrench, economic and social rights. Throughout the 

Cold War, the United States emphasized its commitment 

to civil and political rights almost exclusively, while 

rejecting the notion, championed by the Soviet Union, of 

the preeminence of economic and social rights. Since the 

end of the Cold War, a consistent aspect of U.S. human 

rights policy, across every presidential administration 

regardless of political party, has been U.S. reluctance to 

recognize economic and social rights as an integral part of 

the canon of international human rights — even though

the U.S. delegation pledged “wholehearted” commitment 

to those rights when the Universal Declaration was 

adopted in 1948. 

The U.S. Constitution’s preamble does ascribe to 

government the responsibility to “promote the general 

welfare,” but it was broadly understood in the founding 

era that the general welfare was best promoted by means 

of a limited federal government that energetically secured 

individual freedom and left much up to the states. Later, 

as industrialization spread and wage earners outnumbered 

independent farmers, artisans and shopkeepers, the 

federal government assumed greater responsibilities. At 

the turn of the 20th century, the United States engaged 

in legislative efforts to help ensure just and favorable

conditions of work, and in the decades leading up to the 

approval of the Universal Declaration the United States 

undertook massive legislative and administrative initiatives 

to help guarantee to many millions of Americans an 

The U.S. provides more than $9 billion in humanitarian aid per year 

adequate standard of living and social protection of the 

young, the unemployed, the sick, and the elderly. In 1948, 

those New Deal enactments served as one model for the 

related provisions of the UDHR. 

Today, various social policies framed as rights in the 

UDHR are central to the responsibilities of government 

in the United States at all levels. For example, although 

education is not recognized as a right in the U.S. 

Constitution, the constitutions of nearly every state of 

the union incorporate the right to education and place 

significant responsibility in public authorities to ensure 

the effective exercise of that right. Other major social

policies at both federal and state levels that mesh with 

the language of the UDHR include guarantees of equal 

pay for equal work, the social protection of children, the 

prior right of parents to choose their children’s education, 

and the inclusion of people with disabilities in public life 

and in the workplace. 

Looking beyond our borders, it is notable that throughout 

the seven decades of the international human rights 

project, U.S. foreign policy has prioritized economic 

and social well-being throughout the world with its 

widespread development assistance as well as by means 

of major initiatives ranging from the Marshall Plan to the 

President’s Emergency Plan for AIDS Relief. In these ways, 

U.S. law and policy — both domestic and international 

— go to great lengths to realize those economic and social

goals enumerated in the Universal Declaration. 

How, then, should the principles of the UDHR pertaining 

to economic and social rights inform U.S. foreign policy? 

It must be recognized that along with civil and political 

rights, social, economic, and cultural rights, too, are an 

integral part of the Universal Declaration’s fabric. At the 

same time, it needs to be appreciated that the UDHR 

presents and promotes the two groups of rights in 

different ways.

A crucial difference is that Article 22, which introduces 

the entire section on economic and social rights, provides 

that they are dependent on the “organization and 

resources of each State,” while the UDHR imposes no 

such limitation on the civil and political rights that it 

outlines (a distinction later codified in the

International Covenant on Civil and Political 

Rights and the International Covenant on 

Economic, Social, and Cultural Rights). More 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

 

 

35 

If human rights were to become only or even primarily instruments for 

legitimating state authority and intervention, they would betray their 

origin and become the playthings of every authoritarian government 

seeking to cloak its abuses in the language of human rights obligations. 

generally, the differing linguistic construction of UDHR

articles suggests that some civil and political rights are not 

subject to limitation, especially those negative rights that 

require the State to refrain from directly violating them: 

for example, “no one” shall be subjected to slavery, torture, 

or arbitrary arrest. But none of the economic and social 

rights — which usually imply affirmative State measures 

rather than government restraint from action — employ

this formulation. 

Certainly, civil and political rights also demand action 

on the part of the State. For instance, the guarantees of 

due process and fair trial require that the State create and 

maintain institutions for the administration of justice; 

the right to be free of cruel, inhuman, and degrading 

treatment entails public investment in a humane system 

of criminal punishment. But even more than these, the 

economic and social rights in the UDHR can be fully 

realized only in polities with adequate fiscal and material

resources; they are even more dependent on a wide variety 

of economic models and forms of organization of the 

state; and they almost always involve difficult tradeoffs in public expenditures of finite resources for social 

policies — investing morein health instead ofeducation 

or unemployment protection, for example. In addition, 

economic and social rights tend to be less suitable for the 

exercise of judicial control, especially in constitutional 

systems like that of the United States, where principles 

of separation of powers and democratic legitimacy confer 

power on the political branches, not the judiciary, to make 

decisions about basic social policies. Finally, it is worth 

underscoring that ever since the adoption of the Universal 

Declaration, many authoritarian states — from the Soviet

Union in the past to China, Cuba, and Venezuela today 

— have frequently invoked economic and social rights to 

justify broad and illegitimate violations of their peoples’ 

basic civil and political rights. 

In sum, the principles of the Universal Declaration do 

demand that economic and social rights be taken seriously 

in formulating U.S. foreign policy. However, for many 

reasons — ranging from our own constitutional traditions

to the language of the Universal Declaration itself to 

prudential concerns about the abuse of rights — it is

reasonable for the United States to treat economic and 

social rights differently from civil and political rights. In 

emphasizing the civil and political rights while realizing 

economic and social rights through programs of economic 

assistance and development, the United States operates 

consistently with both its constitutional principles and 

the UDHR’s principles. 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

36 

 

 

3. HUMAN RIGHTS AND 

STATES’ OBLIGATIONS 

The most important obligation of the United States 

government under the Constitution is to protect its 

citizens’ unalienable rights, which it accomplishes by 

giving expression to those rights in the positive law of the 

land. As a result of changes in society and the economy in 

the 20th century, the U.S. government assumed additional 

obligations to provide for basic elements of social and 

economic well-being, as described in Part II. 

This is compatible with the UDHR, which contemplates 

a range of rights that can only be realized through effective

governmental action. This is true not only of the UDHR’s 

economic and social rights, but also of many of its political 

and civil rights. Consider the right to democratic political 

participation: it cannot be effectively exercised without 

government action to create and maintain adequate 

electoral systems, to guarantee their integrity, to protect 

the access and freedom of citizens to cast their votes, and 

to prevent fraud. Accordingly, foreign policy and foreign 

aid not only must focus on restraining egregious abuses, 

but must also assist struggling nations in addressing the 

conditions that foster such evils as terrorism and the 

modern form of slave trade, human trafficking. 

Hard limits must also be respected. The core concern 

about the proper reach of government, central to the 

U.S. constitutional tradition, must always inform policy. 

If human rights were to become only or even primarily 

instruments for legitimating state intervention, they 

would betray their origin and become the playthings 

of every authoritarian government seeking to cloak its 

abuses in the language of human rights obligations. We 

have recently seen disturbing examples of some states 

employing their public health responsibilities during 

the COVID-19 pandemic to justify excessive restrictions 

on freedom of the press and freedom of expression and 

the arbitrary detention of human rights advocates. The 

United States should maintain vigilance, upholding its 

own founding principles of limited government, and 

countering authoritarian models of governance whenever 

and however it is capable of doing so. But within those 

limits, U.S. foreign policy should also support the 

development of healthy, effective institutions of good

governance in all states, for the common good of 

their people. 

4. DEMOCRACY AND HUMAN RIGHTS 

We have seen that the American tradition of unalienable 

rights emphasizes democratic self-government. Many 

fundamental rights — such as the right to vote, the right

to freedom of speech, the right to freedom of assembly 

and association — are essential to the healthy functioning

of democracy. And democratic self-government, in turn, 

is more likely than other regimes to foster a common 

political life that respects citizens’ rights. By fostering a 

culture of human rights, it can help to transform basic 

rights into practical realities. The processes of democratic 

politics play a critical role in ordering the rights at the 

heart of political culture, the reasonable reconciliation of 

rights claims, and the best allocation of limited resources 

in the realization of the many rights democracies seek to 

respect. It is through democratic deliberation, persuasion, 

and decision-making that new claims of right come to be 

recognized and socially legitimated. This link between 

democracy and unalienable rights can be seen in the 

United States’ emphasis on self-government in its declared 

war aims during the Second World War and its support 

for the “third wave” of democratization after the fall of 

the Soviet empire. 

The same link is evident in the Universal Declaration 

of Human Rights. The UDHR features the classic 

civil and political rights necessary to the integrity and 

freedom of democratic processes and protects those civic 

associations essential to a free and self-governing society. 

It also explicitly places the right to political participation 

in the context of a general recognition that “the will of the 

people shall be the basis of the authority of government,” 

and it prescribes “periodic and genuine elections which 

shall be by universal and equal suffrage and ... free voting

procedures.” Together with the UDHR’s structural 

accommodation of pluralism and subsidiarity, this 

suggests that democratic self-government is essential to 

securing the UDHR’s basic principles. 

This convergence of the UDHR and the core of 

the American constitutional and political tradition 

has implications for U.S. foreign policy. It invites a 

commitment to the promotion of democratic processes 

and free institutions as central to the U.S. human rights 

agenda. This commitment can be seen in the State 

Department’s Bureau of Democracy, Human Rights, 

and Labor, and in the strong U.S. support for initiatives 

such as the Inter-American Democratic Charter. At the 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

 

37 

“It’s a sad commentary on our times that more than 70 years after the Universal 

Declaration of Human Rights, gross violations continue throughout the world, 

sometimes even in the name of human rights. International institutions 

designed and built to protect human rights have drifted from their original 

mission. As human rights claims have proliferated, some claims have come 

into tension with one another, provoking questions and clashes about which 

rights are entitled to gain respect. Nation-states and international institutions 

remain confused about their respective responsibilities concerning human 

rights. With that as background and with all of this in mind, the time is right 

for an informed review of the role of human rights in American foreign policy.” 

Secretary of State Michael R. Pompeo, July 8, 2019 

same time, respect for freedom and democracy obliges 

the United States to accord considerable deference to 

the decisions of democratic majorities in other countries 

and to acknowledge that self-governance may lead other 

nations to set their own distinctive priorities and basic 

public policies. The U.S. promotion of rights should 

always respect ordinary democratic politics and the 

legitimate exercise of national sovereignty, and should 

be reluctant to push rights claims that seek to bypass 

democratic institutions and processes. Otherwise, the 

United States risks the cultural imperialism involved in 

imposing its particular policy preferences and institutional 

arrangements on nations with very different traditions. 

5. HIERARCHY OF HUMAN RIGHTS 

Much controversy swirls around the question of whether 

some rights in the canon of the Universal Declaration are 

more important than others, and whether some should 

be accorded a higher priority. As discussed, the human 

rights in the Universal Declaration have an integrated 

character and are not meant to be severed from or pitted 

against one another, as all reflect in some degree the

requirements of human dignity. For this reason, it defies 

the intent and structure of the UDHR to pick and choose 

among its rights according to preferences and ideological 

presuppositions while ignoring other fundamental rights. 

Tensions among rights can never be an excuse for failing 

to abide by human rights commitments assumed under 

international law. 

The principle of the interdependence of basic human 

rights, implicit in the UDHR, was made explicit in 1993 

when, in the aftermath of the Cold War, the United 

Nations convened the Vienna Conference on Human 

Rights to call for renewed attention to human rights. 

At the close of the Conference, 171 countries including 

the United States affirmed the Vienna Declaration and 

Programme of Action, which states that “all human 

rights are universal, indivisible and interdependent and 

interrelated.” 

It is no departure from that affirmation to recognize

that certain distinctions among rights are inherent in 

the Universal Declaration itself, as well as in the positive 

law of human rights developed in light of the UDHR. 

International law accepts that some human rights are 

absolute or nearly so, admitting of few or no exceptions, 

even in times of national emergency, while others are 

subject to many reasonable limitations or are contingent 

on available resources and on regulatory arrangements. 

Some norms, like the prohibition on genocide, are so 

universal that they are recognized as norms of jus cogens 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

38 

 

 

 

There is good reason to worry that the prodigious expansion 

of human rights has weakened rather than strengthened the 

claims of human rights and left the most disadvantaged more 

vulnerable. More rights do not always yield more justice. 

— that is, principles of international lawthat no state can 

legitimately set aside — while other norms are open to

sovereigns to accept or not. The application of certain 

human rights demands a high degree of uniformity of 

practice among nations, as in the prohibition of torture, 

but others allow of considerable variation in state practices, 

as in the protection of privacy. The work of the State 

Department’s Bureau of Democracy, Human Rights, 

and Labor reflects such considerations.

In practice, decisions about the priority of rights are not 

only inescapable but desirable. To begin with, in many 

circumstances certain rights have a necessary logical 

precedence. Many claims of right, moreover, are in tension 

even as appropriate accommodation among them must 

be found. For instance, the high value the United States 

has accorded to freedom of speech has led Washington 

to take exception to international norms mandating 

the prohibition of hate speech. Such differences of

judgment about the relative weight to assign to rights are 

unavoidable and appropriate. Similarly, the U.S. president 

and Congress have constitutional obligations to make 

complex political judgments about the most pressing 

and critical human rights issues of the moment, and to 

establish diplomatic and political priorities accordingly. 

Every organization concerned with human rights —

governmental, nongovernmental, and intergovernmental 

— necessarily does the same. Often those priorities reflect

a particular history and commitment, such as the U.S. 

Congress’s enactment of statutory mandates for offices 

dedicated to the protection of particular rights, like 

religious freedom and freedom from slavery (human 

trafficking), which are legacies of the distinctive historical

experience of the United States and reflect the American 

people’s considered judgments and enduring interests. 

In sum, while the Universal Declaration does not explicitly 

establish a hierarchy of rights and while it is important in 

principle to affirm the interdependence of all rights that 

pertain to human dignity, U.S. foreign policy can and 

should, consistent with the UDHR, determine which 

rights most accord with national principles, priorities, 

and interests at any given time. Such judgments must 

take into consideration both the distinctive American 

contributions to the human rights project and also 

prudential judgments about current conditions, threats, 

and opportunities. 

6. THE EMERGENCE OF NEW RIGHTS 

Like the American founders, who understood that in 

naming “life, liberty, and the pursuit of happiness,” 

the Declaration of Independence set forth “certain 

unalienable rights” and not an exhaustive catalog, so 

too the framers of the Universal Declaration of Human 

Rights recognized that the list identified in 1948 could

not purport to be complete. They knew that the idea of 

human rights, pointing toward the transcendent dignity 

of the human person, is capable of encompassing new 

understandings of what freedom and equality require. 

And just as the American people grew over time in their 

understanding and acceptance of the implications of 

their own founding principles, so too would the people 

embracing the Universal Declaration grow in their 

understanding and acceptance of the implications of 

that document’s principles. It is therefore reasonable to 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

39 

expect a certain expansion and refinement of the list of 

recognized human rights even as the essentials of freedom, 

equality, and human dignity remain constant. 

It must be kept in mind, however, that it was largely due 

to the limits of its reach that the UDHR succeeded in 

launching the human rights project on a global scale. The 

UDHR was deliberately limited to a small set of rights on 

which there was perceived to be a near-universal consensus. 

The framers also knew that keeping the list more tightly 

circumscribed would accord higher political importance 

to each of the rights and would reduce the conflicts among

rights claims, conflicts that could dilute the realization

of any particular right and of rights in general. These 

concerns are highly relevant 70 years later, when the 

number of human rights instruments has multiplied 

dramatically. Taking into account the many different

UN agencies, regional human rights systems, as well as 

specialized organizations like the International Labor 

Organization and UNESCO, there are now dozens of 

treaties, hundreds of resolutions and declarations, and 

thousands of provisions codifying individual human 

rights beyond those contained in the nine best-known UN 

human rights treaties. There is good reason to worry that 

the prodigious expansion of human rights has weakened 

rather than strengthened the claims of human rights and 

left the most disadvantaged more vulnerable. More rights 

do not always yield more justice. Transforming every 

worthy political preference into a claim of human rights 

inevitably dilutes the authority of human rights. 

Accordingly, the United States should be open but 

cautious in its willingness to endorse new claims of human 

rights. This will necessarily raise difficult questions about

whether some specific rights claim is legitimately within 

the scope of the UDHR’s principles and commitments. 

One way to approach this problem is by reference to the 

UDHR’s core concept of human dignity. Indeed, many 

arguments for the recognition of new rights and novel 

interpretations, extensions, and applications of existing 

rights make their case by appealing to this fundamental 

notion. Public debate over whether a particular claim of 

right is an expression of the moral demands flowing from

recognition of the equal and inherent dignity of all human 

beings is crucial and can help policymakers to discern 

when a new claim of right ought to be embraced and when 

it ought to be rejected. However, a direct appeal to human 

dignity by itself is inadequate to the task of distinguishing 

between legitimate and unfounded claims of right. 

Dignity itself is a deeply contested idea, the content of 

which varies dramatically not only across cultures but 

even within our modern pluralistic societies. On some 

of the most deeply divisive contemporary moral issues 

— for instance, the legalization of voluntary euthanasia

— dignity-based arguments feature prominently on both

sides of the debate. 

To assess whether and when a new claim of human 

right warrants support in U.S. foreign policy, other 

criteria are needed. The Commission believes that these 

considerations are pertinent: 

 How closely rooted is the claim in the explicit 

language of Universal Declaration of Human 

Rights as it was written and understood by the 

framers of that document and by the United 

States when approving it in 1948, as well as 

in the language of other international human 

rights instruments that the United States has 

approved or ratified? The carefully negotiated 

language of these documents matters. If agreedupon formulations and understandings are cast 

aside or stretched beyond recognition, the 

language of human rights becomes endlessly 

malleable and untethered from principle. 

 Is the new claim consistent with the United 

States’ constitutional principles and moral, 

political, and legal traditions? Is it widely 

recognized and accepted by the American 

people, through their democratically elected 

political representatives? This is not to say that 

the particular perspectives of the United States 

ought to dictate the direction of international 

human rights generally. But a U.S. foreign policy 

that does not take into account the support of 

the American people for a new rights claim risks 

losing domestic legitimacy. 

 Have the United States and other like-minded 

democracies formally given their sovereign 

consent to the development in question 

through the established political mechanisms 

for creating international law (in particular 

through the adoption of clear and explicit 

treaty provisions)? As discussed earlier, the 

role of sovereign consent in international law 

links the idea of democratic self-government 

with participation in universal principles 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

40 

 

 

 

 

embraced by the international community. 

New claims of rights that circumvent domestic 

constitutional processes and democratic politics 

— for instance, standards emanating from

international commissions and committees, 

individual experts, and advocacy groups —

may be useful sources of reflection about the

appropriate scope of human rights, but they 

lack the formal authority of law. 

 Does the new claim represent a clear consensus 

across a broad plurality of different traditions 

and cultures in the human family, as the 

Universal Declaration did, and not merely 

a narrower partisan or ideological interest? 

Caution is particularly warranted in two 

circumstances. Sometimes broad new rights 

have been championed by undemocratic and 

repressive regimes to undermine the unity and 

effectiveness ofrecognized universalrights. On

other occasions, activists determined to bypass 

ordinary politics and domestic democratic 

processes employ the language and structures of 

international human rights to advance agendas 

that are not widely shared in the community 

of nations, and sometimes not even within 

activists’ own nation. 

 Can the new right be integrated consistently 

into the existing body of human rights? The 

consideration of new rights claims must always 

take into account potential conflicts and the

need to reconcile rights claims, giving each 

claim its due. Ignoring the existing framework 

of human rights that has been carefully crafted 

through compromise and broad consensus to 

advance a new and previously unrecognized 

claim is a perilous step that threatens to unravel 

the entire enterprise. 

These are not exhaustive criteria, nor is any one definitive.

Assessing the legitimacy of a new claim of right, especially 

in changing circumstances, is not susceptible to a 

mechanical formula but requires reason, experience, 

deliberation, and prudent judgment. 

7. HUMAN RIGHTS AND POSITIVE 

LAW AFTER THE UDHR 

Some authorities argue that the development of the 

positive international law of human rights through 

binding legal instruments is by itself sufficient to 

answer any uncertainties about the meaning, scope, and 

development of human rights. Indeed, the collective 

effort since 1948 to translate the UDHR’s principles of 

human rights into binding legal commitments through 

a network of treaties has achieved tangible results. The 

development of the treaty law of human rights can 

reflect a broadening consensus among the community

of nations about human rights. Girding the aspirational 

and pedagogical aims of the Universal Declaration with 

hard legal requirements, often monitored and promoted 

by supervisory institutions, enhances the protection of 

human rights. 

At the same time, both states and scholars have questioned 

whether the multiplication of human rights in treaties is 

an unalloyed good. The surfeit of new treaty obligations 

in human rights does not seem to have increased the 

effectiveness of human rights law nor stemmed the

pervasive violations of very basic human rights around 

the world, even in many countries that have ratified all

of the major treaties. Adding ever more treaty law but 

failing to make existing human rights obligations effective

threatens to undermine respect for the international 

human rights system. 

It is also important to recognize that the positive law of 

human rights, however extensive it has become, has not 

eliminated disputes over the nature and scope of human 

rights. On the contrary, as new treaty law and the work 

of international institutions have expanded the reach 

of human rights, they have also given rise to many new 

controversies. This is inevitable. Even as further specified

in treaties, the principles of international human rights law 

remain, as they must, incomplete and underdetermined, 

and so constantly subject to critique and revision. This is 

all the truer since the positive international law of human 

rights, in contrast to the constitution of a nation-state, 

does not provide a comprehensive legal framework and is 

not itself an authoritative and final arbiter of legal disputes.

In addition, it is crucial to appreciate that the established 

law of human rights cannot answer the important 

questions that by definition spill over the boundaries

of existing positive law. The very notion of a human 

right is that of a right inherent in human beings and not 

dependent for its existence on the enactment of any state 

or international institution. Positive law can establish 

and clarify a state’s enforceable obligation to individuals 

and to other states. But positive law — whether that of a 
U.S. COMMITMENTS TO INTERNATIONAL RIGHTS PRINCIPLES

 

 

41 

nation-state or of the international legal order — does not

create a human right, nor can its silence or conduct nullify 

a human right. The fact that positive law has recognized 

something as a human right, moreover, does not place that 

law beyond reproach, reconsideration, and revision. While 

human rights are the standard against which we judge the 

justice of positive laws, no nation-state or international 

institution has a monopoly or final word on what human

rights require. In short, inasmuch as human rights provide 

core principles by which to judge the justice or injustice 

of positive laws, no positive law — whether national or 

international — can be considered the ultimate arbiter

of human rights. 

The positive international law of human rights also 

cannot determine whether the United States should 

make binding positive law for the country by ratifying 

a particular human rights treaty. The mere existence of 

a treaty is not a sufficient condition to require that it

be accepted as a positive international legal obligation. 

Arguments must appeal to principles and interests beyond 

the existing state of the international law itself — and

in the United States and other liberal democracies, they 

must persuade a majority of citizens, acting through their 

elected representatives. Similarly, any positive law must 

be subject to critique and revision in light of the public 

interest and justice, and be responsive to changing needs 

and circumstances. This is no less true of international 

human rights law. But again, this cannot be done solely 

from within the boundaries of the positive law. It would 

be a sad irony if the idea of human rights — which reflects

the conviction that the positive laws of nations must be 

accountable to higher principles of justice — were reduced

to whatever current treaties and institutions happen to 

say about it. 

The development of a positive law of human rights is 

welcome. But the positive law must be informed by 

thoughtfulness and due deliberation. Diplomats and 

lawyers must eschew the naïve notion that positive law 

is infallibly capable of settling all serious questions of 

the international human rights project and resolving the 

endlessly daunting challenges of foreign affairs.

This balanced approach has roots in America’s founding 

principles. It is consistent with the principles undergirding 

the Universal Declaration of Human Rights, which is 

itself not a statement of positive law but a nonbinding 

instrument oriented toward setting a standard for nations 

to achieve through politics and education, as well as law. 

And it reflects the consistent orientation of the U.S.

State Department to international human rights law 

and institutions for at least the past half century, under 

both Democratic and Republican administrations. 

8. HUMAN RIGHTS BEYOND POSITIVE LAW 

Since 1948, human rights treaties have constituted the 

most important and most formal of means for developing 

the norms of international human rights. Yet much of dayto-day human rights discourse in international politics 

and diplomacy does not consist of appeals to formally 

binding legal norms in ratified treaties, but to a variety

of non-binding resolutions, declarations, standards, 

commitments, guiding principles, etc. These are 

sometimes misleadingly named “soft law,” but properly 

speaking, they are not law at all. Guided by the principles 

of the Universal Declaration of Human Rights, we should 

nevertheless appreciate the functional value of such 

instruments, for the Universal Declaration itself is a nonbinding instrument that has had a transformative effect on

international policy and practice. In fact, some of the most 

significant human rights landmarks and achievements

have had a primarily extra-legal and diplomatic-political 

character, such as the Helsinki Accords and the InterAmerican Democratic Charter. 

At the same time, the widespread proliferation of non-legal 

standards — drawn up by commissions and committees, 

bodies of independent experts, NGOs, special rapporteurs, 

etc., with scant democratic oversight — gives rise to

serious concerns. These sorts of claims frequently privilege 

the participation of self-appointed elites, lack widespread 

democratic support, and fail to benefit from the give-andtake of negotiated provisions among the nation-states that 

would be subject to them. The U.S. State Department 

has historically taken a firm stance that binding norms

can only be made through the formal and recognized 

processes of public international law that pass through 

state representation and consent, and that so-called softlaw therefore does not and cannot result in obligatory 

international norms. That stance is prudent and fully 

consistent with the American constitutional tradition, 

including the principles of the Universal Declaration 

that the nation embraced in 1948. 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

42 

IV. HUMAN RIGHTS IN U.S. 

FOREIGN POLICY 

A. FOREIGN POLICY AND FREEDOM 

Born on the western shores of the Atlantic, an ocean 

apart from the powers of Europe, the United States was 

a marginal actor in world politics for longer than its first 

century of existence. With the Allies’ victory in World War 

II, however, the United States emerged as a superpower. 

In the postwar era, the United States took the lead in 

forging a new international order. That international 

order — under which we live today — was bound up

with the idea, affirmed in the American Declaration of

Independence and elaborated in the Universal Declaration 

of Human Rights, that the governments of nation-states 

are obliged to respect certain rights inherent in all human 

beings. Although a concern with freedom was a central 

feature of America’s thinking about itself and the world 

from the beginning, it was only in the post–World War 

II era that promotion of human rights came to occupy a 

prominent place in American foreign policy, and, under 

U.S. leadership, in world affairs.

A new chapter in the history of freedom was unfolding 

in those years, both at home and abroad. The two world 

wars, with their vast destruction of much that was familiar, 

had intensified awareness that the way things had been 
HUMAN RIGHTS IN U.S. FOREIGN POLICY

 

 

 

 

43 

“Mr. Gorbachev, tear down this wall!” President Ronald Reagan, 1987 

is not the way they always have to be. In a world where 

more than 750 million people were still living under 

colonial rule and millions more belonged to disadvantaged 

minorities in the United States, Latin America, and the 

Soviet Union, men and women were longing not only for 

peace but for better and freer lives. What American poet 

Phillis Wheatley, a former slave, had written in the midst 

of America’s war for independence, seemed evident: “In 

every human breast, God has implanted a Principle, which 

we call Love of Freedom; it is impatient of Oppression, 

and pants for Deliverance.” 

The path for a foreign policy that emphasized freedom and 

dignity had been laid by Woodrow Wilson’s “Fourteen 

Points” statement on war aims and peace principles at the 

close of World War I, Franklin Delano Roosevelt’s World 

War II rhetoric, and the Atlantic Charter. Subsequent 

presidents, while maintaining a healthy appreciation 

of the role of power in international affairs, repeatedly

referred to the principles of freedom in the elaboration 

of American foreign policy. Among the most memorable 

examples are the Truman Doctrine; John F. Kennedy’s 

1963 speech in West Berlin; Jimmy Carter’s 1978 Speech 

on the 30th anniversary of the UDHR; Ronald Reagan’s 

1982 Westminster address and his 1987 speech at the 

Berlin Wall. 

To be sure, the United States stepped into the role of a 

defender of human rights burdened with a history of 

grave departures from the principles of freedom and 

equality both at home and abroad. For as long as nations 

have been interacting with other nations, foreign affairs 

have been characterized by calculations of interest and 

power, relations of convenience, tragic compromises, 

reckless adventures, and spectacular errors of judgment. 

And America is no exception. In the 19th century, under 

the flag of Manifest Destiny, the United States cruelly

expelled Native Americans from their ancestral lands 

with tremendous cost in human life and compelled them 

to enter into treaties that it failed to honor. The United 

States has sided at times with dictators and undermined 

expressions of democratic will. And the United 

States has undertaken military actions that, 

many have concluded, were ill-conceived and 

damaging to the cause of freedom. 

Nevertheless, the world’s oldest democracy became 

the world’s foremost champion of freedom in the 20th 

century, providing hope and encouragement to countless 

men and women living under brutal dictatorships. 

America played a pivotal role in defeating the era’s two 

greatest enemies of the rights inherent in all human beings, 

National Socialism and Soviet communism. 

Following World War II, the United States took the lead 

in constructing an international order that reflected

the commitments to freedom at the core of American 

constitutional government. With Europe’s infrastructure 

in ruins, Congress adopted the Marshall Plan in 1948, 

a massive program of economic aid aimed at restoring 

“conditions abroad in which free institutions can survive.” 

Explaining the need for such a program in his 1947 

commencement speech at Harvard University, Secretary 

of State George Marshall said it was only “logical that the 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

44 

“Human rights is the soul of our foreign policy because human rights 

is the very soul of our sense of nationhood.” President Jimmy Carter 

United States should do whatever it is able to do to assist 

in the return of normal economic health in the world, 

without which there can be no political stability and no 

assured peace.” To this day, the United States maintains 

a strong role in economic development and, through 

public and private aid, is the world’s largest donor of 

humanitarian assistance for the relief of poverty, hunger 

and disease. 

In the 1970s, Congress made human rights a priority in 

U.S. foreign policy with the wholehearted support of 

President Jimmy Carter. In his speech commemorating 

the UDHR’s 30th anniversary, Carter said, 

[H]uman rights are not peripheral to the foreign 

policy of the United States. Our human rights 

policy is not a decoration. It is not something we 

have adopted to polish up our image abroad or to 

put a fresh coat of moral paint on the discredited 

policies of the past.... Human rights is the soul of our 

foreign policy because human rights is the very soul 

of our sense of nationhood. 

The 1974 Jackson-Vanik amendment, conditioning trade 

with Soviet bloc countries on their respect for their citizens’ 

right to emigrate, was hailed as a major advance not only 

by Soviet dissidents but also by the burgeoning grassroots 

human rights organizations of that era. It paved the way 

for later uses of trade sanctions to promote human rights. 

Increased emphasis on human rights continued in the 

Reagan administration. Natan Sharansky wrote movingly 

of how the Russian translation of Ronald Reagan’s 1983 

“evil empire” speech came to him and other jailed Soviet 

dissidents as a ray of hope in the darkness of their sixfoot cells. “[T]he clear moral position of the West,” he 

said, meant that there could “be no more illusions about 

the nature of the Soviet Union....” The prisoners, using 

the secret means they had to communicate, “knocked 

from one cell to another by Morse [code]”; they “talk[ed] 
HUMAN RIGHTS IN U.S. FOREIGN POLICY

 

45 

through toilets to say to one another the great day” 

had arrived. 

In today’s world, tens of millions of persecuted men and 

women still count on the United States for encouragement 

and hope. That is why, in this moment of crisis for the 

human rights idea, America must pursue that cause with 

renewed vigor, with pride in what has been accomplished, 

with humility born of the awareness of her own 

“shortcomings and imperfections” and of the complexities 

of world politics, and with the heavy knowledge that the 

future of freedom is bound up in no small way with the 

vitality of her commitment to her own constitutional 

tradition, rooted in unalienable rights. 

B. CONSTITUTIONAL STRUCTURE, 

STATUTORY CONTEXT, AND 

TREATY OBLIGATIONS 

The structure of American government, the treaties that 

the United States has signed (and declined to sign), and 

legislative enactments all shape U.S. foreign policy on 

human rights. 

Article Two of the Constitution vests the president 

with authority to conduct foreign policy through the 

power to make treaties subject to ratification by the

Senate, to appoint and receive ambassadors, and to lead 

the nation’s armed forces. The Secretary of State serves 

as the president’s primary diplomat and advisor on 

foreign policy. Within the State Department, the Bureau 

of Democracy, Human Rights, and Labor (DRL) has 

responsibility for developing and implementing human 

rights policy. DRL undertakes numerous initiatives and 

programs that support human rights around the world 

including producing detailed reports on how well nations 

protect human rights. In addition, the Department’s 

offices of International Religious Freedom and Trafficking

in Persons concentrate on human rights as does a separate 

and independent entity, the United States Commission 

on International Religious Freedom. At the same 

time, all bureaus and offices in the Department have

a responsibility to ensure that American diplomacy is 

conducted in accordance with the nation’s human rights 

obligations. 

The State Department is not alone in the executive branch 

in carrying out foreign policy. The Department of Defense 

exercises significant influence on our relations with other

states, for example, through decisions on deployment 

of forces around the world and through critical choices 

about partners in theaters of combat. In addition, 

the Department of the Treasury, the Department of 

Commerce, the United States Trade Representative, the 

Department of Justice, the U.S. Agency for International 

Development and the White House’s National Security 

Council all engage in activities essential to U.S. diplomacy. 

Beyond the executive branch, Congress has played an 

increasingly large role in the determination of foreign 

policy, including in the area of rights. In the early 1970s, as

part of the national soul-searching that followed from U.S. 

policies in Indochina and elsewhere, Congress launched 

an unprecedented study of the relationship between 

human rights and American foreign policy. 

Congressman Donald Fraser, chair of the Subcommittee 

on International Organizations and Movements, 

convened landmark hearings which culminated in 

March 1974 with the release of a seminal report entitled 

“Human Rights in the World Community — A Call

for U.S. Leadership.” The report criticized the existing 

approach in American foreign policy and made the case 

for elevating human rights: 

The human rights policy is not accorded the high 

priority it deserves in our country’s foreign policy. 

Too often it becomes invisible on the vast foreign 

policy horizon of political, economic and military 

affairs...We have disregarded human rights forthe

sake of our assumed interests...Human rights should 

not be the only or even always the major factor 

in foreign policy decision-making. But a higher 

priority is urgently needed, if future American 

leadership in the world is to mean what it has 

traditionally meant — encouragement to men and 

women everywhere who cherish individual freedom. 

By combining a recognition that advocacy of human 

rights abroad is one among many goals of a responsible 

U.S. foreign policy with a determination to give greater 

weight to human rights, the report set the tone for the 

vital debate about the balance the nation must strike 

between the harsh realities of world affairs and the

demands of justice. 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

46 

A cautious approach to international human rights instruments 

has been consistently maintained by the elected representatives 

of the American people as well as by the State Department’s 

experienced diplomatic and legal professionals. 

In following years, Congress enacted a series of bills 

culminating in 1976 in Section 502B of the Foreign 

Assistance Act, which established that it would be “a 

principal goal of the foreign policy of the United States 

to promote the increased observance of internationally 

recognized human rights by all countries.” This had 

the effect of making human rights considerations, as a

matter of law, part of the foreign policy decision-making 

process. Presidential encouragement from Democrat 

Jimmy Carter and Republican Ronald Reagan fostered 

bipartisan legislative cooperation. 

In subsequent decades and with further bipartisan 

cooperation, Congress passed and presidents signed 

over 100 human-rights-related laws. Specific legislative

enactments — such as the Jackson-Vanik Amendment; 

its successor, the Global Magnitsky Act, authorizing 

the U.S. government to freeze the assets of certain 

human rights offenders and ban them from entering

the United States; the Comprehensive Anti-Apartheid 

Act of 1986, imposing sanctions against South Africa; 

the International Religious Freedom Act; the Trafficking

Victims Protection Act; and others — have provided

the Department of State and other departments with 

additional tools and have had a measurable impact in 

combatting human rights outrages in various parts of 

the world. The House and Senate continue to play a 

prominent role in promoting human rights, most recently 

with the adoption of the Hong Kong Human Rights 

and Democracy Act in late 2019 and the Uighur Human 

Rights Policy Act of 2020. 

Notwithstanding positive trends and genuine 

accomplishments, American human rights policies 

have been subject to criticisms from across the political 

spectrum. Some say human rights considerations are

too readily sidelined when they appear to conflict with 

security or commerce. Others believe that the United 

States advocates for human rights at the expense of security 

and commerce. Some allege that the United States excuses 

the misdeeds of friends and allies. Others claim that the 

United States is harsher toward the shortcomings of fellow 

democracies than toward the brutalities of undemocratic 

friends, rivals, and adversaries. Some doubt the United 

States’ commitment to human rights because of our 

reluctance to participate fully in the international legal 

framework for human rights, including our failure to 

ratify certain instruments (such as the International 

Covenant on Economic, Social and Cultural Rights), our 

refusal to participate in the Treaty of Rome/International 

Criminal Court, and our withdrawal from the United 

Nations Human Rights Council. Others assert that 

because international human rights organizations are 

dominated by a cadre of professional bureaucrats with a 

political agenda, the United States should undertake an 

extensive decoupling. Some, pointing to the controversy 

over immigration and U.S. management of its southern 

border, say the United States should get its own house 

in order before lecturing others and imposing sanctions. 

Others observe that the persistent flow of people seeking a

better life in the United States testifies to the success of the

American experiment in freedom. Some want the United 

States to do more, particularly by addressing the problems 

that afflict many developing countries—lack of potable 

water, malaria and other diseases, inadequate sanitation, 

and unequal opportunities for women and girls. Others 

want the United States to reduce the importance of 
HUMAN RIGHTS IN U.S. FOREIGN POLICY

47 

The question of whether to consent to binding international legal obligations 

is separate from the question of whether in general a moral imperative or 

political principle is within the scope of the law of human rights. Not every 

moral imperative and political priority need be translated into juridical 

form to demonstrate U.S. seriousness of purpose regarding human rights. 

human rights in foreign policy to save the nation’s limited 

material resources and diplomatic capital. 

These many, varied, and conflicting criticisms underscore

how extraordinarily difficult it is to get a human rights 

policy “right.” At the same time, the vitality of our debates 

about human rights reflects the centrality of rights to

the American constitutional tradition. These debates, 

often intense and high-stakes, are also reminders of the 

complexities faced by policymakers who, even under 

the best of circumstances, must often choose between 

imperfect courses of action on the basis of imperfect 

knowledge. These difficulties must inform the nation’s 

powerful legal and moral commitment to the promotion 

of human rights as a principal goal of its foreign policy. 

A few remarks are in order concerning the cautious 

approach the United States has taken with regard to the 

ratification of some human rights instruments and its

participation in certain international institutions. 

In contrast to many other countries, including close allies, 

the United States has always been highly selective in its 

acceptance of international obligations and supervision 

over human rights. It has signed and ratified only a few 

of the major human rights treaties (most notably, the 

International Covenant on Civil and Political Rights 

(ICCPR), the Convention on the Elimination of All 

Forms of Racial Discrimination, and the Convention 

Against Torture). A few others, such as the International 

Covenant on Economic, Social and Cultural Rights, have 

been signed by the president but not ratified by the Senate.

There has been little political interest, in either major party, 

to ratify additional human rights treaties. For those few 

human rights treaties it has ratified, the United States

has consistently incorporated a number of reservations, 

declarations, and understandings that are carefully 

designed to ensure compatibility between the treaty 

obligations the nation assumes and the requirements 

of the U.S. Constitution. The United States has been 

unwilling to accept any optional provisions within those 

treaties (such as the Optional Protocol to the ICCPR) 

that grant authority to the treaty bodies to receive and 

consider individual complaints alleging that the United 

States has violated its treaty obligations. The United States 

is not a party to any treaty that gives an international 

human rights tribunal the authority to render binding 

legal judgments against it. 

Originally, the United States’ reluctance to bind itself 

to new international obligations was also connected to 

considerations of expediency, but its deepest roots are 

matters of principle. In the post–World War II years, some 

of the U.S. resistance to the applicability of international 

human rights law came from the long legacy of racial 

injustice in the United States. The U.S. engagement with 

the early United Nations and its active role in promoting 

the UDHR met with strong resistance from those who 

feared, with reason, that international human rights law 

would add to pressures against the legal segregation and 

unequal access to political participation that persisted in 

the United States. 

It would be a mistake, however, to overlook the ways 

in which the United States properly calibrates its 

obligations under international human rights law 

today. The primary source of American reservations 

about international human rights law is the country’s 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

48 

 

 

constitutional tradition and its emphasis on limited 

government and the consent of the governed. By binding 

itself to international agreements and submitting to 

the authority of international institutions, the United 

States can put at risk the sovereignty of its people and 

the nation’s responsibility to determine what courses 

of action best secure rights at home and ensure a free 

and open international order. A cautious approach 

to international human rights instruments has been 

consistently maintained by the elected representatives of 

the American people as well as by the State Department’s 

experienced diplomatic and legal professionals. 

The question of whether to consent to binding 

international legal obligations is separate from the 

question of whether in general a moral imperative or 

political principle is within the scope of the law of human 

rights. Not every moral imperative and political priority 

need be translated into juridical form to demonstrate 

U.S. seriousness of purpose regarding human rights. In 

fact, the United States’ selective ratification and strict

construction of treaties signifies the firmness of the U.S. 

commitment to the rule of law: the United States only 

accepts formally those principles to which it is prepared 

to adhere in practice and to be held accountable for 

by other nations in international law. The converse 

— indiscriminate treaty ratification with little care or

intention to harmonize those international obligations 

with domestic law and practice (as is the case with some 

countries) — would be far more damaging to the strength

and legitimacy of international human rights law. Similarly, 

the U.S. insistence on strict construction of human rights 

treaty provisions, rooted in the actual negotiated language 

of the treaties it has ratified, safeguards the integrity of

sovereign consent. The U.S reservations likewise ensure 

respect for the democratic legitimacy of law in the United 

States by preventing international norms and institutions 

from bypassing ordinary, constitutionally authorized, 

democratic politics and the established lawmaking process. 

The United States’ restrictive posture concerning the 

supervisory role of international human rights institutions 

also warrants reflection. As with treaty ratification,

considerations such as the protection of U.S. sovereignty, 

the rule of law, and democratic accountability give good 

reason to be cautious in subjecting national political 

decisions to an international body. International human 

rights institutions can certainly play constructive roles 

in monitoring, supervising, and promoting human 

rights obligations. They can be key actors in fostering 

compliance with international norms. It is for these 

reasons that the United States has often supported such 

institutions, both diplomatically and financially.

At the same time, these institutions are rife with serious 

flaws: they are frequently subject to interest-group

capture; they are not broadly representative of the societies 

that are putatively governed by the norms they apply; and 

they lack democratic legitimacy inasmuch as they vest 

enormous discretion in the professional elites who staff

their permanent bureaucracies. Moreover, the quality of 

their work is hugely variable, and even the more serious 

institutions are often ineffective in accomplishing their 

basic purposes. 

Under these circumstances, maintaining a position of 

selective constructive engagement with international 

human rights institutions is reasonable. Out of respect 

for human rights, the United States cooperates with and 

supports such institutions when they serve the larger 

purposes of advancing human rights, while holding them 

to their authorized boundaries and powers. International 

human rights institutions (with a few exceptions, none 

of which apply to the United States) do not have formal 

interpretive authority over the treaties that create them. 

Moreover, not every interpretation or extension of 

rights or application of the treaty language that may 

have been declared by a human rights body is necessarily 

authoritative or correct. Indeed, examples abound of 

treaty bodies making extravagant interpretations of the 

rights in their charters that go far beyond the treaties’ 

negotiated language. It is important — not least to uphold

the good name of human rights — for the United States 

to continue to rigorously demand that international 

human rights institutions remain within the scope of 

responsibility accorded to them by the treaties under 

which they have been created. 

These general observations regarding the proper reach of 

human rights law and institutions, and some principles 

to guide U.S. policy in this area, are limited by the remit 

of this Commission. Specific recommendationsregarding

whether the United States should ratify any additional 

human rights treaties or accept the mandates of other 

international human rights institutions are properly 

accorded to the elected representatives of our country 

and the departments, bureaus, agencies, and offices to

which they have delegated that responsibility. 
HUMAN RIGHTS IN U.S. FOREIGN POLICY

  

 

49 

C. NEW CHALLENGES 

As long as nations have been formulating foreign policy, 

managing alliances, and confronting adversaries, they 

have been seeking to reconcile the necessities of security 

and commerce with the claims of what is right and just. 

Few nations have devoted as much energy and as many 

resources as has the United States to thinking through 

and implementing policies that promote human rights 

abroad. Today, those efforts are complicated by a host of 

new challenges. 

The Decline of Human Rights Culture. In the wake of

the horrors of the Second World War, the UDHR gave 

expression to a widespread recognition of the importance 

of respecting human dignity by promoting universal 

human rights. The project gained increasing support due

to its role in the fall of apartheid in South Africa and the 

dramatic collapse of communism in Eastern Europe. In 

recent years, however, enthusiasm for promoting human 

rights has waned. Even prominent members of the human 

rights community expressed disheartenment on the 70th 

anniversary of the UDHR in 2018. 

Multiple factors are at work, as we have discussed. We 

rank the waning of concern for basic human rights as first

among the challenges listed here because while enthusiasm 

for promoting human freedom and dignity may decline, 

the human suffering caused by their denial does not. 

The Failings of International Organizations. In 2018, after 

extensive efforts to work from within to reform the United

Nations Human Rights Council, the United States 

withdrew from it. The UNHRC shows many of the same 

flaws that had come to mark its predecessor, the United 

Nations Human Rights Commission. Charged with 

addressing human rights violations globally, the Council 

gave greatly disproportionate attention to Israel while 

ignoring egregious human rights abuses in many other 

parts of the world. These outcomes are in part a function 

of programmatic bias in the UNHRC, and in the United 

Nations more broadly. The U.S. withdrawal from the 

UNHRC does not reflect a rejection of human rights

and fundamental freedoms, but rather a determination 

to find better means of effectively securing them.

The defects of the HRC are an inescapable consequence 

of its structural composition, which reflects a broader

problem with the UN. Given the mandate to include 

members from all regions of the world, it is inevitable that 

nations that are themselves flagrant human rights abusers

— such as China, Cuba, Libya, Russia, Saudi Arabia,

and Venezuela — participate in, and even dominate, the 

Council. An organization with responsibility to monitor 

human rights abuses that is led by regimes that routinely 

commit such abuses cannot succeed and, indeed, is bound 

to discredit the cause of human rights. 

One of the major dilemmas facing friends of human rights 

involves decisions about when to persist in reforming, or 

at least mitigating the damage done by flawed institutions,

and when to pursue alternatives. 

The Autocracy Challenge. The United Nations is home 

to many egregious human rights abusers, and, as we 

have noted, a large portion of the globe now lives in 

countries with scant human rights protection. Among 

these countries, the most influentialare Russiaand China.

The hope in some quarters after the collapse of the 

Soviet Union was that Russia would develop into a 

liberal and democratic country with respect for human 

rights. But those who clung to that hope have been sorely 

disappointed. Regime critics are subject to repression and 

assassination, press freedom is severely limited, and the 

independent judiciary necessary to protect rights does 

not exist. Similarly, the prospect that China, if welcomed 

as a responsible stakeholder in the international order, 

would develop a respect for rights and democracy has 

proven to be an illusion. The Chinese Communist Party 

maintains dictatorial rule over the country, subjecting the 

population to extensive and intrusive surveillance that 

prevents a true, organized opposition from developing. 

Meanwhile, the CCP has undertaken programs aimed 

at destruction of culture in Xinjiang and in Tibet, is 

curtailing freedom in Hong Kong, and is threatening 

Taiwan. China figures consistently at or near the top of 

the list of countries repressing religious freedom. 

China tries to diminish the traditional political and civil 

dimension of human rights by emphasizing what it calls 

the “right to development” or “economic development.” 

Despite much empirical evidence to the contrary, 

Beijing assumes that an optimal pursuit of development 

requires restrictions on individual rights and political 

liberty that far exceed the scope of limits imposed in 

Article 29 of the UDHR. From the point of view of the 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

50 

“United States human rights policy will not pursue a policy of selective 

indignation. Every act of torture or murder is equally repugnant to the 

American people, no matter who commits it. Of course, the means available 

to us to halt such human rights violations always vary with the specific case. 

Our specific response to the human rights violations appropriately differs 

from country to country, but the intensity of our concern should not.” 

U.S. State Department, Preface to 1981 Human Rights Report 

UDHR, development cannot justify infringement of 

fundamental rights. 

Not only are Russia and China engaging in repressive 

policies domestically, they are also actively attempting to 

promote their despotic political models internationally. 

For the first time since the 1970s, when the Soviet Union

still had some veneer of plausibility as an international 

model, liberal democracy faces significant challenge as

the most desirable political option. Authoritarian leaders, 

especially in the developing world, may look to China for 

a model of governance that allows for mass surveillance 

and suppression of dissent, with no expectation to honor 

human rights. Some of our closest traditional allies, 

especially in Europe, sometimes show greater eagerness to 

accommodate China and Russia for commercial reasons, 

than determination to oppose them by holding up the 

banner of human rights. 

New Technologies and Rights. The emergence of new

technologies and their rapid dissemination around the 

world represent marvelous opportunities to promote 

economic development, improve health, facilitate 

communication and the transmission of information, 

develop new forms of energy and transportation, and 

much more. These new technologies run the gamut 

from artificial intelligence (AI) and cyber/internet 

technologies to emerging biotechnologies. They also

pose vexing challenges for the protection of rights. The 

most important new development in AI technologies, for 

example, is the field of machine learning — in broad terms,

complex software algorithms able to process enormous 

amounts of data to find otherwise hidden correlations

and discern otherwise invisible patterns of social behavior.

The potential benefits to society of these advances are

great, but so too are the risks to individual liberties and 

rights. Algorithms are often not as accurate as their
HUMAN RIGHTS IN U.S. FOREIGN POLICY

51 

Unknown protester faces Chinese tanks, 

Tiananmen Square, 1989 

designers hoped, and biased or discriminatory algorithms 

can be readily abused in decisions concerning, say, bank 

loans or court sentencing. When the algorithms are used

on a large scale, moreover, such biases may  show

up only after the harm is done. Of particular concern

are the threats to human rights posed by surveillance and 

behavioral-prediction applications. AI and related cybertechnologies — such as facial recognition conducted over

the internet, including social media and other platforms 

— are already being employed as surveillance tools in the 

United States and other democratic nations, which 

are developing political and legal mechanisms to meet

the challenge of balancing the advantages against the

risks. The dangers are especially great in authoritarian 

states where there is little or no disposition to regulate

these new technologies. 

Nowhere has the ambition to establish a “whollysurveilled” society progressed as far as in China. The 

Communist Party of China 

has built an aggressive internet censorship system known 

as the Great Firewall of China. A high-tech version of 

its discredited forbears, the Iron Curtain and the Berlin 

Wall, the CCP’s Great Firewall seeks to lock its citizens 

in a digital-information prison. 

Beijing’s “social credit system,” moreover, is based in 

large part on emerging AI and cyber software that permit 

the aggregation and integration of many different data

streams about an individual. These include surveillance 

equipment and facial recognition programs that record 

everywhere one goes; smartphone credit card apps that 

track purchases in real time; performance monitoring 

on the job and in school; ratings on social media — by 

one’s friends, neighbors, and associates — of a person’s 

conformity and loyalty; and so on. An authoritarian 

regime can not only use these tools to track and punish 

individuals but also exploit them to monitor and control 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

52 

 

entire groups, such as disfavored religions or ethnicities. 

Meanwhile, predictive-behavior algorithms might — over

time and with enough data accumulated from the largescale surveillance of society — improve state security

agencies’ ability to persecute members of disfavored 

groups by determining with great accuracy when, where, 

and how they will meet. 

AI and cyber are not the only emerging technologies 

likely to threaten human rights. Biotechnology (including 

manipulation of the human genome), nanotechnology, 

quantum computing, and robotics, among others, will 

also pose daunting challenges to human rights. 

Migration of Peoples. Recent years have witnessed largescale movements of populations, and not only for the 

traditional reasons of armed conflict or political, religious,

and racial persecution. In some cases, migrations take place 

against the backdrop of efforts to flee poverty and reach 

the stronger economies of the United States and Europe. 

In some cases, they are in response to prolonged droughts 

and other climate disruptions. Improved communication 

capacities, including social media, encourage attempts 

to resettle by highlighting the dramatically higher living 

standards in the developed world. Meanwhile, criminal 

operations have seized the opportunity to profit from

the plight of migrants up to and including human 

trafficking. Most of these migrants are not refugees in

the sense of the 1951 Refugee Convention and the 1967 

Protocol, to which the United States is a party. Yet the 

extent of these population movements is putting pressure 

on the traditional distinctions between refugees from 

persecution and immigrants, resulting in hard questions 

concerning the scope and applicability of human rights. 

Global Health, Pandemic, and Human Rights. The 

ongoing COVID-19 pandemic has raised complex 

human rights issues of its own, as governments have been 

forced to grapple with protecting public health without 

infringing basic human rights and sacrificing individuals’

economic security in a globalized world. The pandemic 

has provoked temporary restrictions on the freedom to 

practice one’s religion “in community with others and in 

public” (UDHR Article 18), to assemble (UDHR Article 

20), and to travel (UDHR Article 13). The attempts by 

technology companies to monitor the spread of the disease 

through data mining and surveillance have raised serious 

questions about the right to privacy (UDHR Article 

12). Meanwhile, legitimate criticism of both scientific

evaluations and government responses allegedly has 

been suppressed, triggering worries about free expression 

(UDHR Article 19). And struggling families, workers, 

and students have seen the right to work (UDHR Article 

23) and right to education (UDHR Article 26) curtailed 

through social distancing policies. Throughout the crisis, 

as the greater human family has attempted to strike the 

proper balance between competing interests, it has faced 

a medical situation that is imperfectly understood, and 

for which there is not yet a vaccine. During this time, 

the specific contours of an individual’s “duties to the

community” (UDHR Article 29) have been fiercely

debated through the push and pull of domestic politics 

and international relations. 

Rise of Human Rights Violations by Non-State 

Organizations. Non-state actors have long posed a 

challenge for human rights, which paradigmatically apply 

only between nation-states and the individuals under 

their jurisdiction. Recent years, however, have seen an 

alarming multiplication of the number and diversity 

of non-state groups responsible for large-scale human 

rights violations including, for example, terrorist groups, 

transnational organized-crime networks, purveyors of 

child pornography, and organizations engaged in human 

trafficking. These non-state organizations are often based

in fragile states that lack the capacity or political will to 

address the abuses originating within their territories. 

In such weak states, the relative power and autonomy of 

multinational corporations and other business enterprises 

can present complex challenges for the promotion and 

protection of human rights as well. 

D. HUMAN RIGHTS IN A 

MULTIDIMENSIONAL FOREIGN POLICY 

In accordance with this Commission’s duties as outlined 

in its Charter, this Report has reviewed the specific

American legacy that undergirds the U.S. commitment to 

human rights (Part II) as well the international principles 

which the United States has embraced (Part III). Our 

survey of American rights principles reveals a tradition 

that, even as it is grounded in universal principles, is both 

distinctive and dynamic. Its distinctiveness is the product 

of a unique blend of intellectual influences and historical

experiences, and its dynamism is powered by a persistent 

argument among Americans about what kind of society 
HUMAN RIGHTS IN U.S. FOREIGN POLICY

53 

“One of the primary objectives of the foreign policy of the United States is 

the creation of conditions in which we and other nations will be able to 

work out a way of life free from coercion. This was a fundamental issue 

in the war with Germany and Japan. Our victory was won over countries 

which sought to impose their will, and their way of life, upon other nations.” 

Harry S. Truman, Special Message to the Congress on Greece 

and Turkey: The Truman Doctrine, March 12, 1947 

we are and what kind of society we wish to be. Integral 

to that tradition is a commitment to “certain unalienable 

rights” that belong to all human beings, and to a form of 

constitutional government that grew out of the particular 

American experience and which is designed to secure 

rights by keeping competing principles in balance while 

fostering compromise and toleration of opposing views. 

This Report’s survey of international human rights 

principles stemming from the Universal Declaration of 

Human Rights, by contrast, reveals a tradition that was 

designed to affirm universal principles without relying

upon any one particular national tradition. The list of 

principles in the UDHR was deliberately kept small and 

general so that those principles could be brought to life 

within many different cultures, traditions, and political 

systems. The dynamism of the international human 

rights project comes from experiences gathered over time 

as nations move toward meeting the “common standard” 

established in the UDHR. 

Although there is a close correspondence between the 

American rights tradition and the international principles 

to which the United States is committed, the implications 

of America’s dedication to unalienable rights for foreign 

policy are more diffuse and indirect than they are for

domestic affairs, due to the multiple factors that must

be considered in the 

formation of foreign 

policy. Policymakers 

must fulfill all treaty 

obligations that the 

nation has assumed, even 

as they make prudential 

judgments about the role 

of national principles 

and interests, taking 

into consideration 

limited resources 

together with current 

conditions, threats, and 

opportunities in the world around us. They must make 

President 

Harry S. Truman 

difficult choices, often on the basis of limited information,

as to which rights violations and abuses warrant first

attention, and how to expend limited diplomatic capital 

and financial resources. The means available will vary

with each specific case. 

The complexity of diplomatic decisions in the real 

world, however, should never be an excuse for paralysis 

or indifference. There are many ways for the United

States to promote fundamental rights abroad consistent 

with its distinctive national tradition, the sovereignty 

of other nation-states, and the imperatives of sober 
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54 

 

 

 

diplomacy. Policymakers have a wide range of available 

tools, all requiring judgment calls and estimations of likely 

effectiveness. Diplomats can work through back channels,

communicating concerns and recommending changes. 

They can support local rights activists or organizations. 

They can make concerns public and rate the performance 

of other countries through the State Department’s annual 

Country Reports on Human Rights, the Report to 

Congress on International Religious Freedom, or the 

Trafficking in Persons Report. They can engage with

the treaty bodies that govern particular international 

agreements. When warranted, they can pursue forms of 

sanctions, or limit cooperation in trade or security. And, 

not least, they can regularly and robustly espouse the 

principles of American constitutional government, which 

make the protection of the rights inherent in all persons 

the ultimate measure of political legitimacy. 

While judgments about particular policies are beyond 

the scope of this Commission’s mandate, our survey of 

the animating principles of the American rights tradition 

and of U.S. commitments to international human rights 

principles leads us to offer the following observations

to those who bear the heavy responsibility of framing a 

moral foreign policy that advances American interests 

while remaining true to American ideals. 

V. CONCLUDING 

OBSERVATIONS 

1. It is urgent to champion human rights in foreign policy. In 

today’s world, the ambitious international human rights 

project that arose in the wake of World War II is facing 

grave new challenges. The hard-won social and political 

consensus that sustained it is more fragile than ever, even 

as hundreds of millions of men and women suffer under 

authoritarian regimes where freedom and equality are but 

distant dreams, where hope is crushed, and where help is 

withheld. Some powerful nations are challenging the very 

idea of human freedom and dignity by promoting a vision 

of the future that drastically downplays civil and political 

liberties, while rapid technological advances pose a host 

of novel threats. To meet today’s complex challenges will 

require friends of human rights to respond with courage, 

tenacity, and wisdom. 

In this hour of need, the United States, by virtue of the 

principles deeply inscribed in its constitutional system 

and its international commitments, must champion 

vigorously the vision that it and nearly every other nation 

pledged to support when they approved the Universal 

Declaration of Human Rights. It is by fidelity to what

is best in the nation that the United States can respond 

most effectively to the manifold demands of the moment.

Each of the major traditions that merged in America’s 

founding — Biblical faith, civic republicanism, and the 

modern tradition of freedom — nourished the nation’s 

core convictions that government is properly rooted in 

the consent of the governed and that its first purpose is to

secure the rights that all human beings share. These core 

convictions, and the traditions that nourish them, are a 

source of inspiration and strength. It is no exaggeration 

to say that, with people around the world counting on 

America to champion fundamental rights, this country’s 

energetic dedication to that task will have no small 

influence on the future of freedom.

If the United States is to remain a beacon of hope, it 

must prudently pursue all diplomatic options, addressing 

abuses by allies as well as unfriendly nations, while never 

promoting a false moral equivalence between rightsrespecting countries that at times fall short and countries 

that systematically trample on their citizens’ human 

rights. In the war of ideas between liberal democracy and 

autocracy, the uneven progress of liberal democracies does 

not invalidate the lofty goals to which they are dedicated. 

The Commission also notes the likelihood that U.S. 

measures to promote human rights abroad will be 

more effective when carried out in cooperation with

other nations. No nation alone can achieve all that is 

necessary to bring human rights to life, and one nation 

acting by itself will always be suspected, fairly or unfairly, 

of ulterior motives. 

2. The power of example is enormous. A crucial way in 

which the United States promotes human rights abroad 

is by serving as an example of a rights-respecting society 

where citizens live together under law amid the nation’s 

great religious, ethnic, and cultural heterogeneity. 

Notwithstanding many failures to live up to the 

nation’s own ideals, Americans rightly take pride in 

their constitutional tradition. The American experiment 

in freedom, equality, and democratic self-government 

has had a significant influence on how human rights
CONCLUDING OBSERVATIONS

 

55 

are understood around the world — not necessarily

as a model to be copied, but as evidence that a rightsrespecting society is achievable. The country’s experience 

in addressing conflicts among diverse groups in society and

in dealing with tensions among rights and rights claims 

has provided encouragement to others engaged in similar 

struggles. At the same time, it must be recognized that 

the American model will serve as an inspiration to others 

only so long as we ourselves recognize the gap between 

our principles and the imperfections of our politics and 

can demonstrate, as we ask of others, tangible efforts at 

improvements. The more the United States succeeds in 

modeling the principles it champions, the more powerful 

will be its message and the more inspiring its example for 

people longing for freedom. The maintenance of the 

American rights tradition is a continuing challenge that 

builds on what has come before and requires hard work 

by each succeeding generation. 

3. Human rights are universal and indivisible. A major 

threat to the noble post–World War II human rights 

project stems from the rise of powerful nation-states 

that reject the propositions that all human beings are 

created free and equal and that “all human rights are 

universal, indivisible and interdependent and interrelated.”

Whether attacks on that proposition are openly expressed 

or take the form of disregarding it in practice, they strike at 

the heart of the social and political consensus upon which 

the Universal Declaration of Human Rights rests. The 

core principles on which nearly all nations once agreed 

are now threatened by a competing vision in which the 

political and civil rights enshrined in the UDHR are 

radically subordinated in the name of development or 

other social and economic objectives. 

4. The universality and indivisibility of human rights 

do not mean uniformity in bringing them to life. The 

United States and every other state that has taken on 

international commitments are obligated to fulfill all of 

those commitments, with no cultural exceptions. The 

UDHR does contemplate, however, some variation in 

emphasis, interpretation, and mode of implementation. 

The Vienna Declaration makes that explicit, stating 

that while “it is the duty of States, regardless of their 

political, economic and cultural systems, to promote and 

protect all human rights and fundamental freedoms,” the 

“significance of national and regional particularities and 

various historical, cultural, and religious backgrounds 

must be borne in mind.” The universality of human rights 

and the pluralism necessary to their practical realization are 

held together by the principle of subsidiarity inherent in 

the system of international human rights law. Subsidiarity 

in the international arena has affinities with the principles

of freedom, democratic accountability, and federalism 

inscribed in America’s constitutional tradition. It requires 

that wherever possible decisions ought to be made at the 

level closest to the persons affected by them — starting 

with their primary communities — and that larger, more

general and distant communities should intervene only 

to help the primary ones, not to replace them. 

5. A degree of pluralism in respecting human rights does not 

imply cultural relativism. The recognition of a legitimate 

pluralism does not permit ignoring any of the rights in 

the UDHR. The scope for diversity in bringing human 

rights to life is circumscribed by the duty to “promote 

and protect all human rights and fundamental freedoms,” 

and by the provisions of the UDHR specifying that all 

rights must be exercised with due respect for the rights 

of others and that its rights may be subject to “such 

limitations as are determined by law solely for the 

purpose of securing due recognition and respect for the 

rights and freedoms of others and of meeting the just 

requirements of morality, public order and the general 

welfare in a democratic society.” As Secretary of State 

Warren Christopher observed at the opening session of 

the 1993 Vienna Conference, “We respect the religious, 

social and cultural characteristics that make each country 

unique, but we cannot let cultural relativism become the 

last refuge of repression.” 

6. Nation-states have some leeway to base their human 

rights policy on their own distinctive national traditions. 

As the world’s oldest democracy, the United States, for 

example, devotes particular attention to the promotion 

of individual freedom and democratic processes and 

institutions. Within the State Department, it maintains 

special offices for International Religious Freedom as

well as Trafficking in Persons, the latter reflecting the

country’s historical experience with slavery and the former 

its signal achievement in guaranteeing religious liberty for 

all members of a large and diverse polity. But it would 

be a violation of a country’s international obligations to 

ignore other fundamental principles or to disparage them. 

Though it is sometimes difficult to define the bounds of 

legitimate pluralism, or a “margin of appreciation,” the 

process must begin with the understanding that the basic 

principles in the UDHR were meant to work together 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

56 

 

rather than to be pitted against each other. Conflicts or 

tensions between fundamental rights therefore must 

be occasions to discern how to give each right as much 

protection as possible consistent with the overarching 

conviction affirmed in Article I of the UDHR that

“All human beings are born free and equal in dignity 

and rights.” 

7. Although human rights are interdependent and 

indivisible, certain distinctions among them are inherent 

in the Universal Declaration itself, as well as in the 

positive law of human rights that follows from the UDHR. 

While it is important to affirm the interdependence of

all rights that pertain to human dignity, U.S. foreign 

policy can and should consider which rights most accord 

with national principles and interests at any given time. 

Such judgments must take into consideration both the 

distinctive American contributions to the human rights 

project and also prudential judgments about current 

conditions, threats, and opportunities. 

A nation’s discretion is limited, however, by international 

law, which makes some human rights absolute or nearly so, 

admitting of few or no exceptions, while others are subject 

to many reasonable limitations and are contingent on 

available resources and on regulatory arrangements. Some 

international norms, like the prohibition on genocide, 

are so universal that they are recognized as norms of jus 

cogens — that is, principles of international law that no 

state can legitimately set aside. The application of certain 

human rights demands a high degree of uniformity of 

practice among nations, as in the prohibition of torture, 

while others allow for considerable variation in emphases 

and modes of implementation, as in the protection of 

privacy or the realization of social and economic rights 

in the UDHR. 

8. Freedom, democracy, and human rights are indissolubly 

linked. The processes of free and open deliberation, 

persuasion, and decision-making enable liberal 

democracies — democracies grounded in fundamental 

rights — to reasonably reconcile the various claims of rights

and determine the best allocation of limited resources in 

the realization of the many rights that they seek to respect. 

This is because the core notion of individual freedom, that 

no person is born subordinate to or ruler over another, 

and the central idea of democracy, that political power 

ultimately resides in the people, arethemselves reflections

of the rights inherent in all persons. Individual freedom, 

democracy, and unalienable rights have deep roots in the 

American tradition and received powerful expression 

through the nation’s emphasis on self-government in 

its declared war aims during the Second World War; its 

support for the “third wave” of democratization after the 

fall of the Soviet empire; and its continuing commitment, 

consistent across administrations, to an international 

order that favors liberal democracy because it is grounded 

in respect for human rights and national sovereignty. The 

same principles are evident in the UDHR, which features 

the classic civil and political rights that give expression 

to the dignity of the individual and are necessary to 

the integrity of democratic processes; places the right 

to political participation in the context of a general 

recognition that “the will of the people shall be the basis 

of the authority of government”; and prescribes “periodic 

and genuine elections which shall be by universal and 

equal suffrage and ... free voting procedures.” 

This convergence of the UDHR and the core of the 

American constitutional and political tradition has 

implications for U.S. foreign policy. In the first place, it 

invites a commitment to the promotion of individual 

freedom and democratic processes and institutions as 

central to the U.S. human rights agenda. By the same 

token, it counsels considerable deference to the decisions 

of democratic majorities in other countries, recognizing 

that self-governance may lead them to set their own 

distinctive priorities. The U.S. promotion of fundamental 

rights should always be sensitive to the outcomes of 

ordinary democratic politics and the legitimate exercise 

of national sovereignty, and wary of rights claims that seek 

to bypass democratic institutions and processes. 

9. Social and economic rights are essential to a comprehensive 

foreign policy. Although social and economic rights are 

an integral part of the fabric of the Universal Declaration, 

the principle of the indivisibility of human rights was 

obscured during the Cold War when, for opposite reasons, 

the Soviet Union and the United States tended to treat 

the civil and political rights in the UDHR as separate 

and distinct from its social and economic provisions. 

As a result, it is crucial to recognize four considerations: 

(1) The United States was a major supporter of the 

indivisibility principle as well as the aspiration for “better 

standards of life in larger freedom” that appears in the UN 

Charter and the Preamble to the UDHR. In presenting 

the UDHR to the UN General Assembly, Eleanor 

Roosevelt affirmed that the U.S. government gave its
CONCLUDING OBSERVATIONS

57 

“wholehearted support for the basic principles of economic, 

social and cultural rights set forth in those articles.” (2) 

It was the U.S. position on how those rights were to be 

implemented — leaving it up to each nation to bring

them to life in accordance with its resources and political 

organization — that prevailed over the Soviet view that 

the state should be their exclusive guarantor. (3) The 

indivisibility principle requires the economic and social 

rights to be taken seriously in formulating U.S. foreign 

policy. (4) Because a certain minimum standard of living 

is essential to the effective exercise of civil and political

rights, America’s commitments under the UDHR accord 

with the nation’s constitutional tradition. 

Time and much empirical evidence have amply proved 

the wisdom of the U.S. position that a prudent mixture 

of public and private means is better suited to provide 

“better standards of life in larger freedom” than a statemanaged economy. Where foreign policy is concerned, the 

United States, consistent with its dedication to individual 

freedom and human equality, has sought to promote 

the UDHR’s economic and social principles primarily 

through generous programs of economic assistance 

directed toward the world’s poorest, most vulnerable 

and most persecuted communities. 

10. New claims of rights must be carefully considered. With 

the passage of time, it is reasonable to expect a certain 

expansion and refinement of the list of recognized

international human rights even as the essentials of 

freedom and human dignity remain constant. The 

application of existing rights to persons from whom 

they have been wrongfully withheld is particularly to 

be welcomed. It must be kept in mind, however, that 

it was largely owing to the relative modesty of its reach 

that the UDHR succeeded in launching the universal 

human rights project on a global scale. The UDHR was 

deliberately limited to a small set of rights on which there 

was perceived to be a near-universal consensus. The fact 

is that the power of the universal human rights idea is 

strongest when grounded in principles so widely accepted 

as to be beyond legitimate debate; it is weakest when it 

is employed in disputes among competing groups in 

society over political priorities. Such political disputes 

are usually best left up to resolution through ordinary 

democratic processes of bargaining, education, persuasion, 

compromise, and voting. The tendency to fight political 

battles with the vocabulary of human rights risks 

stifling the kind of robust discussion on which a vibrant 

democracy depends. The effort to shut down legitimate 

debate by recasting contestable policy preferences as fixed

and unquestionable human rights imperatives promotes 

intolerance, impedes reconciliation, devalues core rights, 

and denies rights in the name of rights. In sum, the United 

States should be open to, but cautious in, endorsing new 

claims of human rights. 

11. National sovereignty is vital to securing human rights. 

As does the U.S. Declaration of Independence, so too does 

the Universal Declaration of Human Rights assume that 

nation-states, through their laws and political decisions, 

are the main guarantors of human rights. Essential to 

the defense of human rights, therefore, is the defense of 

the sovereignty of nations, large and small. Like other 

international legal obligations, the international human 

rights obligations of the United States must be grounded 

in those norms to which the United States has formally 

and explicitly consented. To cede authority to determine 

those obligations to international bodies without the 

constitutionally legitimated consent of the United States 

would erode American sovereignty and dilute democratic 

accountability. It follows that U.S. policymakers should 

resist attempts at creating new rights through means that 

bypass democratic institutions and procedures, or that 

are inconsistent with the understandings on the basis 

of which the United States entered into international 

agreements. It also follows that the United States should 

respect the independence and sovereignty of nation-states 

to make their own moral and political decisions that affirm

universal human rights within the limits set forth in the 

UDHR. At the same time, it must be recognized that 

freedom-loving nations rightly employ the full range of 

diplomatic tools to deter nation-states that abuse their 

sovereignty by destroying the very possibility of the 

exercise of human rights by their people. 

12. The seedbeds of human rights must be cultivated. 

Over the years, the human rights idea has shown great 

power, to the point where “human rights” has become 

the phrase most commonly used today by millions of 

men and women from all nations and cultures to express 

their yearnings for justice and relief from oppression. 

But friends of human rights must keep in mind two 

important considerations: respect for human rights 

must be cultivated, and the promotion of basic rights is 

only one element in building the kind of societies that 

promote human flourishing in all its dimensions. Rights

are helpful tools for addressing injustices and improving 
REPORT OF THE COMMISSION ON UNALIENABLE RIGHTS

58 

living conditions, but they do not magically generate the 

respect for individual freedom, democracy, human dignity, 

and rule of law or the qualities of responsibility, solidarity, 

and tolerance that are required for the maintenance of 

humane and just societies. 

The collective effort since 1948 to translate the UDHR’s

broad principles of human rights into binding legal 

commitments through a network of treaties has achieved 

laudable results. But the enduring success of such efforts

depends on the moral and political commitments that 

undergird them. It would be a sad irony if the idea of 

human rights — which reflects the conviction that the 

positive laws of nations must be accountable to higher 

principles of justice — was reduced to whatever current 

treaties and institutions happen to say that it is. The fact 

is that human rights in a nation’s foreign policy often gain 

more force from the clarity of the nation’s moral purpose 

and political commitment than from the formality of its 

legal obligations. Declarations, constitutions, and treaties 

on human rights are but what Madison called “parchment 

barriers” without constant effort and determination —

not least in the provision of an education that presupposes 

and transmits the essential ideas about freedom and 

human dignity — to make those rights a reality. 

As Eleanor Roosevelt put it on the tenth anniversary 

of the UDHR: 

Where, after all, do universal human rights begin?

In small places, close to home — so close and so small 

that they cannot be seen on any maps of the world. 

Yet they are the world of the individual person; the 

neighborhood he lives in; the school or college he 

attends; the factory, farm, or office where he works. 

Such are the places where every man, woman, and 

child seeks equal justice, equal opportunity, equal 

dignity without discrimination. Unless these rights 

have meaning there, they have little meaning 

anywhere. Without concerted citizen action to

uphold them close to home, we shall look in vain 

for progress in the larger world. 

The experience of the United States teaches that 

protection of human rights is a never-ending struggle, 

one that involves a nation’s sense of its own principles and 

purpose as it grapples with questions about the security 

and the well-being of the political community for which 

all have a common responsibility. Promoting fundamental 

human rights is an essential step, but only a step, in 

shifting probabilities toward better and freer societies. 

The surest protection of human freedom and dignity 

comes from the constitutions of free and democratic states 

undergirded by a tolerant, rights-respecting culture. As in 

the case of the United States’ distinctive rights tradition, 

the maintenance of the international human rights project 

will require attention to the “small places” where the spirit 

of liberty is rooted, nurtured, and cultivated. ▲ 
Signed, the Commission on Unalienable Rights: 

Mary Ann Glendon, Chair 

Peter Berkowitz, Executive Secretary 

Kenneth Anderson 

Russell Berman 

Paolo Carozza 

Hamza Yusuf Hanson 

David Tse-Chien Pan 

Jacqueline Rivers 

Meir Soloveichik 

Katrina Lantos Swett 

Christopher Tollefsen 

Duncan Walker, Designated Federal Officer

F. Cartwright Weiland, Rapporteur 

Report of the 

Commission on 

Unalienable 

Rights 
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