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The Promise of Human Rights: A conversation with Prof. Jamie Mayerfeld

Jamie Mayerfeld

November 30, 2016

As an instructor, mentor, and advocate, Jamie Mayerfeld is a linchpin of the human rights community at the University of Washington. He is a Professor in the Political Science Department, an Adjunct Professor of Law, Societies, and Justice, and a faculty associate of the Center for Human Rights. His most recent book, published earlier this year by University of Pennsylvania Press, is titled The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law. We sat down with Professor Mayerfeld to talk about how best to protect human rights, and what stands in the way of the promise of human rights.

In a world with multiple pressing human rights crises, why is it important to think about the philosophy of rights?

I’m interested in what I would call the political theory of human rights, because we have to think about how human rights are best protected in the real world. The main idea of my book is that human rights need legal and political protections, but that domestic protections are not enough and need to be supplemented with international protections.

I find it interesting that the earliest theoretical statements of human rights are accompanied by a demand for political protections. This suggests that political theory is built into the concept of human rights. Remember that the U.S. Declaration of Independence moves quickly from saying we are endowed with unalienable rights to the claim that “to secure these rights, Governments are instituted among men.”

You argue that the principles of human rights call not just for specific protections at both the domestic and international level, but specific political forms that are best at protecting those rights—what would this look like in your ideal world?

The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law, by Jamie Mayerfeld (University of Pennsylvania, 2016)In a more ideal world, constitutional protections of human rights would be supplemented by stronger forms of international oversight. There would be more human rights watchdog institutions at the local level, state level, and federal level. And there would be more human rights oversight institutions at the transnational and global level.

In my book I have a chapter on the system of human rights protection in Europe. One of the main actors is the European Court of Human Rights, which has had a transformative effect on the region, despite all its limitations and occasional backward steps. One of the secrets to its success is what human rights scholar Fionnuala Ní Aoláin calls a process of “circular reinforcement,” where domestic constitutional courts and the European Court of Human Rights back each other up in their rulings. The Court is under strain now because of a case overload and political resistance, so we need to appreciate what it has achieved while adopting institutional measures to strengthen its oversight capacity. In the meantime, the United States and other countries can learn from European achievements in the human rights field.

A large part of your book explores the concept of “American exceptionalism”—what is exceptional about the United States’ approach to human rights?

The term “American exceptionalism” can mean different things. In my book it refers to the unwillingness of the United States to bind itself strongly to international human rights law. The United States is unusual among democracies, even countries in general, in taking deliberate steps to minimize the impact of international human rights law on its domestic policies. These steps include attaching major loopholes to its ratification of human rights treaties, barring judges from enforcing human rights law, and weakening the authority of customary international law and international criminal law.

I have two chapters in my book about the decision of the Bush administration to authorize practices constituting torture in the war on terror. The torture policy was greatly facilitated by “American exceptionalism” in the specific legal sense I am using. We see the connection clearly in the infamous “torture memos.” The Bush administration wanted legal authorization for interrogation methods that were obviously illegal under domestic and international law. So it went to its lawyers and asked them to write memos authorizing the techniques. This taxed the ingenuity of the lawyers, but they came up with a set of convoluted arguments to defend the legally indefensible. As I show in painstaking detail, their task was aided by the United States’ longstanding marginalization of international human rights law.

If you could have coffee with one of the thinkers you cite in your book, who would it be, and why?

In my book I devote a chapter to James Madison, and he emerges as a theoretical ally. We’re all familiar with Madison as the principal architect of the U.S. Constitution and drafter of the Bill of Rights, but we need to pay closer attention to his constitutional philosophy and what it implies for us today. He argued that in order to prevent the abuse of power, we need to divide and disperse power and multiply oversight institutions. And to deal with the problem of faction – the seizure of power by groups acting against justice – we may need to rearrange decision-making authority. Madison didn’t believe in institutional inertia. We need to adapt our institutions when new threats to justice emerge. Today, nation-states wield a degree of power unimaginable in Madison’s time, and they are increasingly vulnerable to capture by majority and minority faction. If Madison were alive today, he would be leading efforts to strengthen international human rights law. So he is someone I’d like to have coffee with.