The article is a response to a recent 60-page draft report of the Commission on Unalienable Rights, formed by Secretary of State Michael Pompeo to clarify the State Department's position on certain matters relevant to (as you would expect) human rights, particularly given that there are so many different accounts. The Commission's charter stated that it was not to come up with "new principles" but give advice on how to further liberty, equality, and democracy in a way consistent with the Universal Declaration of Human Rights. The essential supposition of the Draft Report (given on p. 7) is a framework that unites the Declaration of Independence with the Universal Declaration of Human Rights:
The Declaration of Independence affirms that 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 for the fundamental principles it outlined.
The ACLU critic, Dakwar, assumes that the motivation is "to weaken international human rights protections and propose a new, politically-charged framework of rights that elevates a specific vision of religious freedom and ignores well-established, globally accepted norms". OK; it seems bizarrely roundabout to do this by way of a purely advisory State Department Commission, but let's assume this, and simply ask whether Dakwar's arguments are of any value against this supposedly pernicious stealth attempt to destroy human rights by giving advice. The answer, I think, is a resounding No; Dakwar's argument is muddled and poorly constructed. Dakwar says:
A hierarchy of rights is inconsistent with human rights law and our constitutional framework. The report presents a selective and revisionist history, emphasizing the “primacy of the American political tradition” and the founding era of American history. The result is a crude and erroneous attempt to constrain the notion of the U.S. Constitution as a living document. As the ACLU has repeatedly stated, “There is an obligation to adapt fundamental principles of liberty and equality to the needs of an evolving social culture.” It seems that the 11 members of the commission have missed the fact that our constitutional rights are evolving, not static.
It is in fact false that a hierarchy of rights is inconsistent with human rights law and our constitutional framework; the notion of a 'human right' by its nature establishes a hierarchy, because human rights are by definition more fundamental than rights that are only granted by the state (for instance). That is a hierarchy. And the American constitutional framework allows and recognizes a concept of 'basic and fundamental rights', which naturally suggests a contrast with rights not had in that basic and fundamental way. From repeated comments, it seems very clear that Dakwar has made the elementary logical mistake in confusing the usual sense of 'equal rights', namely, rights equally held by all people, as we find in (for instance) Article 1 of the UDHR, with a bizarre sense in which it means that all rights are equal to all other rights (e.g., "the bedrock principle that all human rights have equal status, and they are not hierarchical"). The latter is gibberish, and is inconsistent both with the notion of human rights and arguably with the notion of a constitutional framework (since rights recognized constitutionally naturally take precedence over rights recognized by subconstitutional frameworks).
Contrary to what you would imagine from Dakwar's summary, the Commission explicitly notes that there is a progress of understanding in rights:
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. (p. 9)
But Dakwar really seems to be intending something else by his 'living constitution' comments, namely, that there are no unalienable rights. An unalienable right is one that can't be lost, taken, or traded for another. Obviously how rights are relevant to a situation depends on the situation, and can change if the situation changes, but if the rights themselves change according to changes in social culture, this would imply that the old rights are in fact alienated in favor of the new. The notion that there are no stable rights (however variable their modalities) is not the natural reading even of most living constitutionalist theories of the constitution, but it seems to be required by Dakwar's argument.
What really gets Dakwar's ire, though, are the Commission's comments on religious rights and property rights, as the title highlights; in particular, this passage:
Foremost 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. (p. 13)
This is (contrary to what Dakwar implies) not a standalone statement, but explicitly a part of a discussion about what unalienable rights have been understood to be in the "American constitutional tradition" -- and, of course, you will note the key phrase "from the founders' point of view". Dakwar drops this phrase when he quotes this passage, which is a bizarre thing to do, since it identifies essential context for the claim. And, frankly, it borders on intellectual dishonesty; Dakwar, after quoting this passage, immediately goes on to claim that this creates "a new and novel hierarchy of rights", and rather than providing any argument that this was not the founders' view (which is what he needs to do), he just asserts that this is "a political and ideological decision that contravenes international law, and ignores lived experiences and structural inequities" and "counterproductive to democratic participation and fundamental freedoms because it excludes certain types of people from all human rights", neither of which is relevant to the passage being quoted.*
We must reject any proposal that prioritizes religious liberty over equal rights and human dignity. All too often, religion has been invoked to sanction violence and discrimination against people of color, including those of African descent and Indigenous peoples, women and girls, and LGBTQ people.
In the first sentence we have a clear example of a category mistake: particular rights are not opposed to equal rights, because 'equal rights' presupposes rights, and human dignity does not oppose any particular rights because human rights are protections owed because of human dignity. It's as if someone said, "We must reject any proposal that prioritizes constitutional laws over genuine laws." It is, again, gibberish. And the second sentence involves another elementary logical confusion, since it is irrelevant. If someone were to say (for instance) that freedom of expression is an especially important right, it would be a sign of stupidity to respond that "Expression is often used to harm other people's rights"; this would not establish that there is no expression right, nor would it establish that it is not especially important. As it is usually not assumed that rights cannot be misused or abused, it wouldn't even establish that it wasn't a right when it was being exercised in a way harmful to others.**
But Dakwar does seem indeed to assume that you don't have a right if you can exercise it irresponsibly; he goes on a bit later to say:
While religious freedom must be protected and faith organizations are entitled to autonomy, such deference should be extended within a holistic conception of rights grounded in the universality, indivisibility, and interdependence of the full range of human rights.
It's unclear why this is supposed to be fundamentally different from the view described in the Commission's report, according to which rights "imply responsibilities, beginning with
the responsibility to respect the rights of others" (p. 12), unless Dakwar means that there is something that is religious freedom but what it is in any given case just depends on everything else. Since this is explicitly said to be due to a fact about rights in general, this seems, again, to be as much as to deny that there are any genuine unalienable rights, and thus that there are any human rights in the sense of rights that are inherent to human nature -- what your rights are just depends on the entire juridical galaxy (constantly evolving, remember) at a given time.***
Dakwar next pins property rights on his target:
The commission’s report asserts that economic and social rights are best compatible with America’s founding principles when they serve as “minimums that enable citizens to exercise their unalienable rights, discharge their responsibilities, and engage in self-government.” The commission bizarrely concludes that guaranteeing a basic social safety net and fundamental human rights such as the right to health, education, and housing, would “curtail freedom — from the rights of property and religious liberty to those of individuals to form and maintain families and communities.”
While the first sentence is true, the Commission is explicitly talking about how social and economic rights are to be implemented, and not (as the second suggests) whether they should be implemented at all. It does not conclude what the second sentence says at all. The Commission's exact words are:
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. (p. 21)
While it may well be that the Commission is using its statement to make a jab at the welfare state, what Dakwar claims the Commission says is not what the Commission says; it says that guaranteeing a basic social safety net and rights like health, education, and housing (in particular, rights like Roosevelt's 'second Bill of Rights') are least consistent with American founding principles when implemented in such a way as to induce dependence on the state and curtail freedom. Which, rather than being as 'bizarre' as Dakwar claims, seems to be something most people would consider rather uncontroversial, even if they disagree as to exactly where to draw the limits of state power.
Additionally, the report sets up the premise that social and economic rights create a “clash of claims” with other rights like religious liberty. If anything, the correct interpretation is that social and economic rights are complementary and enabling rights. People cannot exercise freedom — political or otherwise — if their social and economic rights are in jeopardy.
The second and third sentence are the first time in the entire discussion that Dakwar has said anything about rights that seems wholly intelligible on its own. But the report does not set it up as a "premise" that social and economic rights create a clash of rights claims; it presents this as a diagnosis for why they are controversial. And it's a bit harder to take the position Dakwar is claiming now, given that he has just attacked the report's account of religious freedom on the ground that religions are often oppressive, which sounds very much like what most people would consider a clash of rights claims.
All of this, of course, is a problem even supposing for the sake of argument, as I have here, that Dakwar is right about the Commission's cunning attempt to subvert human rights by giving a proposal for what the State Department should consider in promoting human rights. In reality, I suspect most people would consider the Commission's general answer -- it should be guided by the ideas of the American founders about the kinds of inalienable rights mentioned in the Declaration of Independence and by the Universal Declaration of Human Rights -- to be rather reasonable and uncontroversial. (John Tasioulas said it looked "fairly anodyne", which I think is probably how most people would see it.****) Of course, one could dispute details; but Dakwar doesn't get into any historical or exegetical details, beyond mentioning in passing that "a selective and revisionist history, emphasizing the 'primacy of the American political tradition' and the founding era of American history" -- which indeed, does not involve any details at all. It is also somewhat eccentric to criticize a document for focusing on American history when it is explicitly intended to advise the American government (the phrase "primacy of the American political tradition" occurs nowhere in the document). Dakwar repeatedly attacks the report for not attacking the Trump Administration, but this is also an eccentric criticism; policy matters, including criticism of policy, were (explicitly, as the report notes) not within the scope of the Commission's instructions.
In any case, anyone can read the Draft Report for themselves by downloading it from the Commission's website.
* It's a side issue, but note the appeal to "lived experiences". There is an increasingly common intellectual sloppiness that tries to use 'lived experiences' as a trumping authority, but this is simply confused. 'Lived experience' is a technical term; it is not equivalent to 'experience'. Indeed, the phrase was developed precisely because there is a German word, Erlebnis, that could be translated as 'experience', but for which this would often be misleading. Lived experience is the living-through itself; it is distinct from 'experience', which often means 'what you find to be going on', or can mean what we (in a sense) turn lived experience into by interpretation and articulation, our lives as understood and articulated by us. There is experience in general, but there is no lived experience in general, only my lived experience, and yours, and so on, and it's not clear what it means for a general statement about a particular classification of rights in general to "ignore lived experiences". If 'lived experiences' is just being used inaccurately for 'experiences', then it quite clearly doesn't ignore them -- it is explicitly claiming to be about the founders' views. But if it literally means 'lived experiences', you can't get any general statements about rights from lived experiences, each of which is its own and not another's. While there are things like sympathy and empathy, my lived experience doesn't directly include yours, so nothing directly found in my lived experience tells me anything about anyone else's life, much less their rights (which are not usually considered something directly discovered in lived experience, although maybe, maybe, Dakwar is assuming some notion of self-evident rights without explicitly stating it). We can learn about rights from experience; lived experience serves as material and basis for our understanding of the world, but you can't get much about rights from lived experiences. And this is of course aside from the difficulty we find in that what we say about lived experiences is necessarily different from lived experience itself, being only our attempt to interpret and articulate it. Of course, it's very likely that Dakwar is just using the term rhetorically, as many people unfortunately do; he is pulling out all the stops, and saying, "Treating property rights and religious rights as especially important is against EVERYTHING GOOD."
** I can't help but notice that Dakwar, despite regularly castigating the Commission report for leaving things out, doesn't bother to consider that "people of color, including those of African descent and Indigenous peoples, women and girls, and LGBTQ people" might have religious practices that need to be protected from violence and discrimination, or, in other words, that being in those groups is not inconsistent with having religious freedom, nor with religious freedom being very important part of their personal lives that has often not been protected very well by the very international law to which Dakwar appeals.
*** But I confess I suspect Dakwar is being purely rhetorical. I'm not sure how the phrase "universality, indivisibility, and interdependence" is supposed to be functioning here, for instance. I would usually assume that 'universal' means 'for everyone', but what is the relationship here between it and the other two? And what exactly does it mean to say that the full range of human rights is indivisible, given that it's a little odd to speak of a range as indivisible? And what is the relation between 'indivisibility' and 'interdependence'? Are these being used as distinct or like Dakwar's phrase "new and novel"? How do these traits of universality and indivisibility interact with Dakwar's claims that rights evolve? And how does one extend deference to a freedom according to a conception grounded in these things? I have no idea. It seems very much like Dakwar really wants to say, "The nature of any right you have depends on the nature of all the other rights you have." That of course raises the problem one often has with 'holistic conceptions', namely, how you get the whole, and how you determine what its character is, to begin with.
**** He did suggest on Twitter that a problem with it is that it often speaks as if human rights were rooted in consensus, and that there's a possible problem with its tendency to talk about certain rights as beyond debate while also needing to be reconciled with each other by democratic processes. I think both of these are legitimate worries about the report. But Dakwar's response doesn't address these problems, and, indeed, arguably shares them both.