On May 30, a surprise notice in the Federal Register roiled the landscape of international human rights advocacy. The U.S. Department of State announced that it was establishing a “Commission on Unalienable Rights” to advise Secretary Mike Pompeo.
The Commission will “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.” It is advisory and will have no independent authority. Its fifteen members will represent diverse views on the issue. Most of their names were announced by Pompeo yesterday.
This language of “natural” human rights has raised hopes among conservatives who believe that human rights have not played a sufficient role in the Trump administration’s foreign policy so far. The high-energy diplomacy of U.S. religious freedom ambassador Sam Brownback is a welcome exception, but advancing other human rights has not been a priority for the Trump administration.
The deficit has been particularly noticeable in policies toward North Korea, China, Iran, and Saudi Arabia, each of which presents national security perils for the United States. These nations’ policies of savage repression ought to offend our commitment to human dignity. Their systemic human rights abuses also threaten our national security because they are permanent impediments to the social, economic, and political developments that can counter despotism and lead to reform. A recent bipartisan letter to the president on North Korea, authored by the Religious Freedom Institute, praised the president’s outreach to Kim Jong Un but urged the integration of human rights into our long-term strategy. The letter received only a pro forma reply, the kind reserved for irrelevant policy recommendations.
And aside from the efforts of stalwarts such as Rep. Chris Smith and Sen. Marco Rubio, international human rights has receded as a Congressional concern. Thanks to Senate Democrats, the position of assistant secretary for democracy, human rights and labor (DRL) is still vacant at Foggy Bottom. Trump’s nominee, the veteran human rights expert and Columbus School of Law Professor Robert Destro, is being held up by procedural roadblocks.
While the Commission on Unalienable Rights has raised hopes among conservatives, it has sounded alarms among liberals. Nahal Toosi writes in Politico that left-leaning activists are worried that “talk of the ‘nation’s founding principles’ and ‘natural law’ are coded signals of plans to focus less on protecting women and LGBT people.” Others worry that the Commission will depend on “Catholic conservative intellectuals,” in whose hands natural law “means goodbye to reproductive rights and protections for sexual minorities.”
Culture-war contention over the historical meaning of inalienable rights has been festering for decades at Foggy Bottom, largely out of public sight. Congress created DRL’s predecessor, the Bureau of Human Rights and Humanitarian Affairs, in 1977, and established the Office of International Religious Freedom in 1998. The motive for both initiatives derived from the founders' view of natural rights: fundamental freedoms, such as freedom of religion, speech, and assembly, as well as freedom from persecution, arbitrary arrest and torture, are not optional. Rather, they are constitutive of human dignity and democratic stability, fundamental to persons and to American interests abroad. During the Reagan and George H. W. Bush years, human rights policy focused mainly on the human wreckage of the Soviet imperium, but the end of the Cold War and the advent of the Clinton presidency brought a name change and a new debate over human rights.
In 1993 the newly-minted Bureau of DRL began to advocate for rights that advanced what the Clinton administration called “the new non-traditional issues,” such as curbing population growth and protecting the abortion rights of women, the sexual rights of homosexuals, and the rights of children deprived of state-provided sex education. This occurred regardless of the fact that there was no American consensus that sexual liberation was unalienable or fundamental, let alone that this secular progressive ideology should be exported in U.S. foreign policy.
In 1998, Congress passed the International Religious Freedom Act, which stipulated that America’s founders established religious freedom in law “as a fundamental right and a pillar of our Nation.” IRFA mandated the advancement of religious freedom abroad by a State Department office headed by an Ambassador at Large (currently Brownback), and the production of an annual IRF report.
The Clinton administration vigorously resisted the IRFA, arguing that it represented a “hierarchy of rights” that illicitly put religious freedom ahead of other rights. When Hillary Clinton became President Obama’s first Secretary of State, the Department worked to integrate abortion and LGBT rights, already covered in DRL’s annual human rights reports, into the annual religious freedom reports as well. The goal was to condemn Christian, Muslim, and Jewish teachings that reject abortion, sex outside marriage (including homosexual acts), or same-sex marriage. The Obama administration did not succeed in incorporating these issues into the religious freedom report, but it had other plans.
In 2009 the State Department began in earnest to implement the new approach. Secretaries of State Clinton and John Kerry ensured the State Department became the world’s leader in advocating the “non-traditional” human rights. That policy has proven quite successful. Even the Trump administration has left in place U.S. ambassadors abroad who openly advocate for the adoption of a right of same-sex marriage, including in nations whose citizens reject secular progressivism’s sexual dogmas.
There is scant reason to hope this new Commission will achieve a renewed consensus on human rights in foreign policy. The left is convinced that whatever is celebrated by secular progressives in the name of “personal liberation” counts as a genuine human right. Meanwhile, many conservatives believe promoting human rights is at best a secondary issue for U.S. diplomacy.
Still, there is some hope. As the bipartisan letter to President Trump on North Korea illustrates, there is still substantial left-right agreement, at least among human rights advocates, that violent abuse should be countered in U.S. policy—not only as a moral imperative, but also because doing so is in our national interests. The new Commission should build on this foundation, drawing on empirical evidence that the protection of fundamental rights such as religious freedom, and the absence of violent persecution, contribute to societal goods such as economic growth, political stability and social harmony, and undermining religion-related terrorism.
Those rights the founders considered natural, unalienable, and God-given are precisely the rights that yield public goods. The founders guaranteed religious “free exercise” in the First Amendment because they believed the rights of conscience to be the first of our unalienable rights, and because they believed that the right of public religious free exercise, available to all individuals and religious communities equally, would yield practical goods—including a virtuous citizenry, limits on government, more economic growth, and greater social and political harmony. The purpose of the First Amendment’s ban on an established national religion was to protect free exercise, not to remove religion from our public life.
Free exercise equality, although never perfectly applied in America, has nonetheless contributed mightily to our historic public consensus over the common good. That consensus, based on a particular understanding of the founders’ intent, was once widely shared in America, but is no longer. The breakdown of that consensus has been accelerated by the decline of religious freedom in America for Muslims, Jews, Christians, and others.
This sad reality makes the Commission’s work all the more urgent. If there are certain rights whose existence is self-evident, given by God and discoverable by human reason, their existence will be vindicated. The question for commissioners is whether, and to what extent, they can re-make the case for these truths.
Thomas F. Farr is President of the Religious Freedom Institute. He was the first director of the State Department's Office of International Religious Freedom.