Secretary Pompeo’s Bill of Rights

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The need for Secretary of State Pompeo’s plan to create a “commission on unalienable rights” is certainly underscored by the reaction to it. The Federal Register had barely published his 128-word notice of intent to form the commission than human rights “activists,” as Politico puts it, started worrying about a retreat on women’s and sex-related issues.

That reaction strikes us as a rush to judgment on an effort that is long overdue. What has alarmed human rights activists, Politico reports, is the reference in the Federal Register to how the Commission would “provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”

Some human rights activists, Politico reports, say they fear that Mr. Pompeo’s reference to the “nation’s founding principles” and “natural law” are what Politico characterized as “coded signals of plans to focus less on protecting women and LGBT people.” Said Politico: “The word ‘natural’ in such context is often interpreted to mean ‘God-given.’”

Heavens to Betsy. The fact is that so far the Universal Declaration of Human Rights, promulgated by the United Nations in 1948 at France, has generated little but trouble. Today we have a UN human rights commission, international criminal court, and other institutions that are inimical to American interests — and ungovernable by the country that funds so much of the United Nations system.

By our lights, the Pompeo plan offers an opportunity to draw out distinctions that we have long seen as important. The sacred text known as “The New York Sun Reporter’s Handbook and Manual of Style” does not prohibit the phrase “natural law.” We do, though, prefer the distinction between what we call negative rights and positive rights.

This burst into our editorial columns when Justice Ruth Bader Ginsburg fetched up in Egypt and gave a broadcast interview. Her distinguished local interlocutor noted that Egypt was then in the process of writing a new constitution and asked whether the justice had any advice. Her reply went viral on the Internet because she suggested Egypt not look to the American Constitution as a prototype.

Instead, Justice Ginsburg suggested a look at the constitution of South Africa. “That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary,” she kvelled. She also commended the new Charter of Rights and Freedoms in Canada. She likes, too, the European Convention on Human Rights.

We wrote about Justice Ginsburg’s interview in an editorial called “Lost in Egypt.” All the South African, European, and Canadian charters were drafted recently and run up to ten times the 480 words of our Bill of Rights. They are clogged with rights, such as the right to social security and the right to a home. They often grant rights by saying not what the government can’t do but what it must.

Yet they are spreading like invasive plants. The Times’ sharp-eyed Supreme Court reporter, Adam Liptak, in a follow-up to Justice Ginsburg’s Egyptian interview, found an Australian judge who warned that America was becoming “a legal backwater.” It ran under the headline “‘We the People’ Loses Appeal With People Around the World.”

The thing that strikes us about all this is that positive rights tend to enshrine left-wing policies. They make vast social programs not so much a policy option as a constitutional requirement, while blanking more basic rights that go back centuries. In the combined 10,000 words of the Canadian, South African, and European rights bills, say, the right to keep and bear arms is not mentioned once.

So we look forward to Mr. Pompeo’s commission. What rights are truly unalienable and what are merely policy prescriptions? Are rights better protected by constraining government or compelling it to act? And when America declared that all men are endowed by their Creator with certain “unalienable” rights, was America violating the Constitution its people would soon ordain?


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