Bricker Amendment

Abstract: As we consider the status of the human rights covenants today, it would appear that the ghost of Senator John Bricker must be smiling at the fulfillment of his wish. Thirty years after the defeat of the Bricker Amendment, the covenants and most other major human rights treaties have yet to receive Senate approval.2 During the same period, these covenants have been ratified by eighty-five other nations, including fifteen Western democracies.3 The question which deserves our attention is why the United States has not ratified these treaties as well. The United States has long considered itself the leading protector of human rights. Many Americans consider the Declaration of Independence and its references to "inalienable rights" to be the source of reintroduction of basic human rights into the modern political

Abstract: From the Founding through the Second World War well established understandings constrained executive power over foreign relations. Since the Cold War the executive has enlarged its foreign relations power. Courts and commentators justified and defended the growth of executive power in relation to two geopolitical phenomenon. First, the executive was better positioned to command the United States' wider global responsibilities. Second, the threat posed by Soviet expansionism and nuclear missile technology did not afford time for congressional deliberation. While scholars have debated whether the Cold War actually justified the extent of executive power, they have generally accepted as a self-evident proposition that the president's authority should expand in response to geopolitical circumstances. Professor Paul characterizes the proposition that presidential power expands relative to geopolitical exigencies as a "discourse of executive expediency." Paul traces the origin of this discourse to the domestic debates over the Bricker Amendment, McCarthysm and the War in Indochina and shows how courts used this justificatory rhetoric to construct a new method for interpreting the president's constitutional powers. Focusing particularly on the use of executive agreements, Paul argues that even in the absence of any external threat, courts willingly suspended critical judgments and embraced expediency discourse. In Paul's view, the expansion of the president's foreign relations power obstructed public accountability, facilitated interventionism, and corrupted the policy-making process. Paul challenges the continued reliance on Cold War discourse and offers an alternative approach to adjudicating questions on the reach of executive foreign relations power.

Abstract: New Rights: U.S. Ambivalence Toward the International Economic and Social Rights Framework, appears as chapter 5 in Bringing Human Rights Home: A History of Human Rights in the United States (Cynthia A. Soohoo, Catherine Albisa, and Martha F. Davis, eds., Praeger, 2007). Economic and social rights (including rights to food, adequate housing, public education, the highest attainable standard of physical and mental health, fair wages, decent labor conditions, and social security) still occupy a second-class, outsider status in official United States domestic and foreign policy. This is no accident. The full recognition and implementation of such rights pose a direct threat. But that threat is not primarily to democracy or American values as some believe. Rather, because they demonstrate our system's failures to achieve equality, they threaten the deeply held belief that our country has already achieved a truly representative, human rights-based society. This chapter provides an overview of American engagement with the international economic and social human rights system. It particularly explores how and why the U.S. engagement with international economic and social rights has been deeply ambivalent. The chapter begins by reviewing the international context in which U.S. attitudes about economic and social rights developed and early U.S. influences on the drafting and promulgation of foundational human rights instruments. However, this initial, and deep, U.S. engagement was soon undermined. Among other factors, racism (including the fear that human rights implementation would empower African-Americans and other minorities) contributed to the effective suspension of U.S. legislative engagement with internally applicable international human rights treaties for decades. Further, Cold War politics played a key role in the ultimate division of the UN's Covenant on Human Rights into two separate treaties. This period helped entrench the fear and distrust about the domestic application of human rights that still surfaces in some circles. The advent of the Obama administration may mean a more human rights friendly domestic and foreign policy. It has already included the signing of a new human rights treaty. In light of the global economic crisis and efforts toward major health coverage reform, it remains to be seen whether calls for economic and social human rights in the U.S. will be seen as potential threats or as helpful tools.