Rights, Religion, and Property

The State Department’s Commission on Unalienable Rights has issued a report on the rationale to pursue human rights as a primary goal for American foreign policy. Rights have a bipartisan pedigree. In our modern history, it was the Democrat Jimmy Carter who first defined human rights as a U.S. foreign policy mission. But Republican Ronald Reagan and his Secretary of State George Shultz made rights advocacy a constant component of their hard-nosed negotiations with the Soviets.

Barack Obama took a different path. Reacting against his predecessor George W. Bush’s policy of democracy promotion, he and Secretary of State John Kerry proved largely oblivious to rights concerns—most egregiously in the disregard for human rights in their negotiations with Iran. 

It is surely time to bring rights back to the forefront of foreign policy—that is the context of the commission’s report.

There is also a second context: the evident fragility of the rights agenda around the world. 

The hope that China would liberalize has been disappointed, putting the world’s largest population under the heel of a regime that does not respect human rights or the rule of law. Add to that Russia, Iran, North Korea, and more, and we quickly find that more than half of humanity lives under regimes hostile to human rights. The end-of-history consensus that the collapse of the Soviet Union meant democracy and rights would spread quickly is a thing of the past.

Intellectual criticisms have also eroded the foundations of the human rights project. A cultural-relativist skepticism rejects anything universal, including the universalist claims of human rights. Environmentalists believe human needs, including rights, cause vast ecological damage. Meanwhile, technology continues to generate ever more intrusive mechanisms of surveillance and infringement on our private sphere. 

This crisis of the rights agenda everywhere demands an examination into its relationship to American foreign policy.

What the Commission Did and Didn’t Do

The task of the commission was neither to enumerate all possible rights nor to rule on current rights debates but to provide a foundation for American foreign policy concerning the promotion of rights. 

The commission’s report explores the topic along two coequal routes. First, it examines the treatment of rights in American political thought, beginning with the historical documents from the era of the Revolution and the Constitutional Convention, but treating as equally foundational the subsequent history, the Civil War, and the abolition of slavery, women’s suffrage, the 20th century recognition of economic and social concerns, and the civil rights movement, just as it points to ongoing current debates. 

Controversies surrounding the death penalty, abortion, or same-sex rights will be resolved in public discussion and elections and ultimately through legislatures and courts. Asserting a secure place for rights in foreign policy requires that those rights reflect the consensus in the self-governing democracy. 

The commission’s second approach involves the treaties and other international commitments that the United States has entered into. These include especially the principles of the Universal Declaration of Human Rights, in the adoption of which the United States played a central role, thanks to Eleanor Roosevelt acting on behalf of the State Department. 

The report also emphasizes other nations must meet the same treaty commitments and similarly respect all rights. A foreign policy for human rights, therefore, must respect both the democratic will of the nation and the network of international agreements. 

A Hierarchy of Rights?

The report has received both positive and negative responses; among the latter, one objection needs rebuttal, the assertion that the report accords higher status to some rights, in particular religious liberty and property rights, and that it therefore diminishes the importance of other rights. This is simply not true. 

On multiple occasions, the report describes all rights as interdependent and equal, and it explicitly rejects the notion that the United States or any other country may choose to respect some rights in order to ignore others. The commission did not invent any “hierarchy of rights,” as some incorrectly allege—although existing international law, in fact, does distinguish between some rights that must never be abrogated, such as a prohibition on genocide, and rights that in an emergency might face restrictions, as we have seen freedom of assembly drastically curtailed during the pandemic. 

Moreover, Congress itself has chosen to mandate through statute that special attention be paid to certain rights by establishing special offices to monitor religious freedom violations and human trafficking. Attention to these two areas does not excuse the United States from fulfilling all its other obligations, but these two specific areas have special grounding in American history and self-understanding: religious freedom enjoys pride of place in the Bill of Rights, and human trafficking addresses forms of modern slavery, i.e., the evil that tore the country apart in the Civil War. There is no shame in devoting efforts to stop slavery today.

While the report does not mount an argument to prioritize religion and property, which includes the ownership of one’s own body and labor, it does point out, as a historical claim, that religion and property rights were of prominent concern to the American Founders and are therefore deeply rooted in American political thinking. 

Rather than disputing that claim concerning the historical record, critics instead have displayed clear hostility to the substance of these specific rights, engaging in versions of a standard secularist dismissiveness toward religion and bizarre skepticism toward property rights. In short, it is the report’s critics, rather than its authors, who are promoting a hierarchy of rights by trivializing the importance of religion and attacking property in ways that are symptomatic of our contemporary cultural crisis.

The Real Quarrel Over Religion and Property

Religion played an obvious role in the formation of early American political thought; witness the appeals to a “Creator” and to “Nature’s God” in the Declaration of Independence. 

Today’s opponents of a connection between religion and rights dismiss that appeal. They reject the proposition that rights have any pre-political source, be it in a religious sphere, or in nature, or in some other metaphysical understanding of the human condition itself as bestowing dignity. By denying any claim of rights prior to political acts, they instead reduce all human rights exclusively to the positive law of legislative acts, which implies that it is ultimately the state—and not a creator, nature, or the mere fact of being human—that endows the rights. 

This statist perspective is explicitly at odds with the origins of American thinking, which posited a liberty prior to law, thanks to a mix of Lockean liberalism and Biblical teaching (to which the Founders added a strong dose of civic republicanism). Yet by treating the state as the fountainhead of liberty, contemporary opponents of religious sources leave us only with rights that have been granted by the largesse of politicians. They cast us in the role of servants of the state, never answering to our conscience of a higher morality, but always obligated to “just follow orders,” which was the maxim of the defendants in the Nuremberg war crimes trials. 

Eliminating any understanding of liberty derived outside of government paves the way to blind obedience and subordination to state power. It also renders no right “unalienable,” since what the state gave, it might take away.

While secularism drives the effort to diminish religious freedom, it is a progressive redistributionist vision that pushes back against the tradition of property rights. This current animus toward property may also reflect a countercultural “post-material” disdain of worldly possessions in general. 

Whatever its origin, the suspicion of property rights ignores the central issue: the right to one’s property is the basis for liberty and the pursuit of happiness. As late as the 17th century philosopher Thomas Hobbes, it was commonplace to assume that might makes right and that the strong could violently seize what the weak could not defend. Property was never secure. 

In contrast, it was John Locke—whose writings were a major influence on the Founders—who introduced the novel principle that one has a legitimate claim on one’s own property, including one’s body and the fruit of one’s labor: “every man has a property in his own person: this no body has any right to but himself. The labor of his body, and the work of his hands, we may say, are properly his.” 

How the right to property is upheld in particular circumstances always depends on specific political processes. It could take the shape of defending corporations or, alternatively, by breaking up monopolies. Yet property rights clearly provide philosophical grounding for robust criticism of any system, including slavery and human trafficking, that denies laborers their due. Denying the right to private property is the road back to serfdom. 

It is therefore strange to see progressive critics eagerly lining up against property rights, unless their ulterior motive in fact involves enhancing the power of the state to expropriate, no matter how much liberty would be diminished. 

Property rights, like religious freedom, place limits on the scope of state power. The animus against these liberties betrays an aspiration to expand the reach of government even further than is already the case. Given that prospect, the project of the Commission to think through our legacy of rights has been all the more urgent. 

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About Russell A. Berman

Russell A. Berman is a senior fellow at the Hoover Institution and Walter A. Haas Professor in the Humanities at Stanford University. He formerly served as senior advisor on the policy planning staff of the U.S. Department of State.

Photo: Getty Images

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