A friend just brought this 1997 book to my attention. Charles Black was a professor of constitutional law at Yale for much of the last half of the twentieth century. This small book presents for general readers his arguments for elevating human rights to explicit prominence in constitutional law. He argues that “The prime system the United States exists to secure is a national regime of human rights” (P. 54).
His foundation for that assertion is the Declaration of Independence, which states that governments are founded to secure “the unalienable rights to life, liberty, and the pursuit of happiness” with which every person is born. He argues that the Declaration should be recognized as a constitutional document of the United States. The sentence that declares independence both terminates the authority of Britain and asserts the right of the United Colonies to operate as a government. The Declaration therefore is a constitutive document and is the root of “all legitimate exercise of power.”
Black specifically ties the Declaration to the Constitution through the 9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To give those retained rights body and form, Black identifies them with the broad range of rights implicit in the right to “the pursuit of happiness.” The problem here is that there remains no enumeration of human rights. This leaves us the choice, Black argues, to do nothing or to “take the Ninth Amendment as a command to use any rational methods available to the art of law, and with these in hand to set out to discover what it is you are to protect.” (p. 14)
Constitutional jurisprudence has done some of both. New rights have been enunciated by the Supreme Court—such as the extension of freedom of the press to new media, or the discovery of privacy rights that include the right to use contraception and the right to abortion—but it has not done so as a frank exploration of human rights. Instead, it has built on the “due process” clauses of the 5th and 14th amendments with a principle known as “substantive due process.”
Black finds the idea of “substantive due process” intellectually feeble and productive of decisions that lack rational conviction. An open commitment to human rights would, in his judgment, produce much clearer legal results.
Black’s desire to see a more open commitment to human rights reaches well beyond a desire to have more convincing legal decisions. He argues that the human right to “the pursuit of happiness” demands that Congress has an “affirmative constitutional duty” to “devise and prudently to apply the means necessary to ensure, humanly speaking, a decent livelihood for all” (p. 133).
It is easy to see that a full commitment to national law based on human rights would help avoid the current chaos surrounding health care in the United States. If the duty of government is to secure our right to life, it is surely its task to secure the health on which the pursuit of happiness and life itself depend. It is easy to argue that in the modern world, access to necessary health care must be viewed as a basic human right.
Such actions are needed, in Black’s view, not as acts of compassion but “as an issue of constitutional justice. This kind of justice must be done, or we will never attain to any other kind of justice. The general diffusion of material welfare is an indispensable part in the general diffusion of the right to the pursuit of happiness” (p. 139).
Perhaps it is time that the United States underwent a Human Rights Revolution.