The Ghost of Senator Bricker

I too have enjoyed reading the range of responses to Oona’s important article. Here I’ll just reflect on the article’s treatment of the campaign by Senator Bricker in the 1950s to adopt a constitutional amendment to restrict the treaty power.

Several scholars, including Oona, have analyzed how U.S. human rights treaty practice occurs in the shadow of the botched Bricker Amendment campaign (a phenomenon Louis Henkin refers to as living with the “ghost of Senator Bricker”). While the Bricker Amendment failed, the last five decades of human rights treaty practice has, as Oona puts it, “paid fealty to the ‘ghost of Senator Bricker’ by eviscerating agreements with [RUDs] that render them virtually unenforceable.” (p 168) Oona deploys this history (along with evidence that the treaty clause sprung out of a compromise based in part on concerns of slaveholding southern states who insisted on the supermajority requirement) to gather further support for her claim that “the current system of international lawmaking in the United States rests… on rules and patterns of practice developed in response to specific contingent events—events that for the most part have little or no continuing significance.” (p. 107). Reviewing this history, Oona insists that “the reasons that gave rise to current practices have been discredited and rendered obsolete.” After all, Oona suggests the “backlash against the human rights revolution” — represented by the Bricker Amendment campaign – was based on “the largely imagined possibility that human rights treaties would be used to challenge racial segregation.” (p. 140)

I disagree with this characterization. Indeed, civil rights lawyers and activists were using and continue use human rights treaties and the broader framework supporting the idea of human rights to challenge racial segregation – oftentimes in ways that go beyond traditional legal strategies. Going back to the abolition movement, prominent abolitionists such as Frederick Douglass and Harriet Tubman, wrapped themselves in the cloak of human rights (and, of course, some of the earliest human rights treaties prohibited slavery and the slave trade). Then, in the 1920s, Marcus Garvey submitted a set of complaints to the League of Nations, which he called the “Declaration of the Rights of Negro Peoples of the World.” Following the atrocities of the Nazis, in the immediate aftermath of WWII, the NAACP and American Jewish Congress worked hand in hand to get the word “human rights” into the UN Charter, in opposition to Southern Democrats like Texas Senator Tom Connolly, a key member of the U.S. delegation to the San Francisco conference where the Charter was negotiated. With the establishment of the United Nations, in 1947, the NAACP petitioned the world body, soliciting it to condemn race discrimination.

The big challenge to the U.S. came after the Genocide Convention was adopted in 1948. In 1951, several prominent civil rights leaders – including WEB Dubois, Paul Robeson, William Patterson, Mary Church Terrell, among others – submitted a complaint to the U.N. entitled “We Charge Genocide,” which argued that the federal government, by failing to act against lynching in the U.S., was guilty under article II of the Convention. The petition also documented numerous unfair trials and executions of African Americans, as well as large scale voter disenfranchisement through poll taxes and literary tests.

Even the Justice Department embraced an internationalist frame, when, in its amicus brief in the Brown v. Bd of Ed case, it highlighted the hypocrisy of the U.S. role in advocating for rights abroad, when it could not guarantee these rights at home. The Founding Charter of the NOW Legal Defense Fund also recognized that “our own status is inextricably linked to those around the world” (and today, the organization has taken a leadership role in a coalition supporting adoption of a local ordinance in New York City, incorporating CEDAW and CERD).

While civil rights leaders of the 1960s were split on ideology, both Martin Luther King and Malcom X adopted human rights rhetoric and internationalist outlooks. Before his assassination in Memphis — where he was looking for a way to link traditional civil rights and economic justice concerns in his campaign to organize a poor people’s campaign — King proclaimed that “it is necessary to realize that we have moved from the era of civil rights to the era of human rights.” For his part, Malcom X cautioned, “We have to keep in mind at all times that we are … fighting for recognition as human beings. We are fighting for the right to live as free humans in this society. In fact, we are actually fighting for rights that are even greater than civil rights and that is human rights.” At another juncture, Malcom X advised, “Our problem must be internationalized.”

Jack Greenberg tells me that during his pioneering days at the NAACP Legal Defense and Educational Fund (LDF), he included cites to treaties in his prisoners rights briefs – if for no other reason, than to educate judges to inform them of U.S. obligations under international law. Perhaps this is why he and Louis Henkin went on to create a colloquium for law students called Human Rights and Constitutional Rights (a course I now teach at Fordham). Playing an educational role on a broader scale, the Aspen Institute hosts seminars for judges — taught by prominent law professors– which includes a focus on human rights treaty obligations.

Today, many of the major civil rights and civil liberties organizations participate in the human rights treaty body system and have been active participants in the recent set of U.S. compliance hearings before the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Racial Discrimination (CERD). Beyond the NAACP LDF (mentioned above), the Lawyers Committee for Civil Rights recently held a congressional briefing on CERD (following last month’s U.S. compliance hearing on CERD) and the national office of the ACLU has a human rights unit dedicated to integrating human rights work throughout the organization.

Like Oona, I’d like to think the U.S. is in a very different place than it was in the 1950s – the high water mark of the Bricker campaign. There is a broad recognition that discrimination (de facto or otherwise) not only insults the concept of human dignity that is at the very core of the human rights idea, but also hampers the ability of the nation to compete globally. For this reason, congressional-executive agreements (CEAs) represent an exciting possibility for moving beyond the Bricker consensus. As I discussed in an earlier post, in light of how underrepresented people of color are in Congress, especially in the Senate, I’m persuaded by Oona’s argument that moving toward CEAs and away from Article II treaties would enhance democracy and reinforce representation of all the People. At the same time, in saying that “the rules we have today are an artifact of historical circumstances that have little continuing validity,” (p. 175) Oona’s article paints with too broad a brush over the ugly history that motivated Bricker, the ways in which that history has been calcified into current day discrimination and segregation, and the innovative use of human rights by civil rights advocates to circumvent this history. Oona’s article is, of course, already quite ambitious and multi-layered, so I’m not recommending that she try to reflect this history in all its richness and complexity. But, it may be helpful to try to finesse this history a bit more and its implications for the treaty-CEA trade off, as the struggle for equality and human rights in the U.S. always has been and will continue to be uncomfortable for the Senator Brickers of the world and those who nurture his legacy. One useful resource is Carol Anderson’s book, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955.

Thanks again, Oona, for a terrific read and to Opinio Juris for hosting this fruitful exchange.