The Promise of Human Rights. Jamie Mayerfeld
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the classic social contract theorists argued that human rights entitle their bearers to institutional protections. Social contract theorists envisaged such institutions within the frame of the nation-state, which could protect individuals from each other, but could also, of course, violate human rights on a much larger scale. To guard against this danger, Locke advocated the creation of representative democracy, in which the enforcement of human rights was entrusted to “collective bodies of men,” chosen by the people, who would dedicate themselves to upholding the law of nature.
But human rights are not adequately fulfilled if we entrust their protection to the nation-state alone. The state has too many opportunities to betray human rights. Or it may lack the resources to fulfill important human rights even if it wanted to. International rights institutions are needed to correct the failures of nation-states—for example, to compensate for the resource deficiencies of poor states, or to oppose national policies that violate or threaten human rights. The moral principle is well captured in the Universal Declaration of Human Rights, whose Article 28 proclaims, “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.”
Hence the effort since World War II to create an effective international human rights regime. Despite formidable obstacles and demoralizing delays, the human rights movement has succeeded in establishing a system of interlocking protections in the form of multilateral declarations, treaty commitments, monitoring committees, investigative bodies, reporting procedures, fact-finding missions, regional human rights courts, and international criminal courts. It goes without saying that human rights continue to be violated on a massive scale, and that some states still demonstrate an astonishing capacity for cruelty. But international human rights institutions have had some impact on the calculations and self-understandings of states and public officials. While the maleficent potential of the state has not been removed, it has often been inhibited, and in some parts of the world significantly reduced.56 I examine some contributions of international human rights institutions in the chapters to follow.
When international institutions reinforce national protections of human rights, they recapitulate the domestic process of institutional reinforcement whose necessity has long been understood. The secure enjoyment of human rights within any society depends on the presence of multiple overlapping protections. A democratic state mindful of its constitutional mission should therefore welcome the oversight and assistance that international human rights institutions provide. When a state refuses international checks on its human rights practices, it negates our right to the reliable protection of our rights. The international protection of human rights is the logical completion of the human rights idea.
Chapter 2
Madison’s Compound Republic and the Logic of Checks and Balances
Learned men pledged to the defense of individual rights forged political institutions for the new United States. They constructed forms of government not seen before, thus transforming our understanding of politics itself. The U.S. Constitution was the culmination of their efforts, and James Madison the principal genius behind its creation. Alexander Hamilton boasted that the original constitution was itself a bill of rights (Fed. 84, p. 477),1 even before the first ten amendments. Although the original constitution contained grave flaws, above all the accommodation of slavery, its underlying principles inspired many to seek improvements, efforts that bore fruit in subsequent amendments abolishing slavery and requiring equal protection of the laws. Our current understanding of human rights owes an immense debt to American innovations in the art of government.2
Gratitude for the theoretical contributions of the Founders, and Madison in particular, has nourished the view that U.S. institutions do not stand in need of international human rights law. There is a sense that Madison and his colleagues solved the main difficulties, that to institutionalize external supervision of U.S. human rights practices or incorporate international human rights law into America’s domestic legal system would be to tinker with the Founders’ wise design, a move both ungrateful and imprudent. Mixed with these feelings is the pride of vicarious authorship (the thought that the Founders’ achievement is ours, too) and an attachment to strong national sovereignty as a matter of principle. Belief in the sovereign right of Americans to govern their affairs without external supervision and belief that the Founders made the correct institutional choices are mutually reinforcing.
I propose that such thinking leads us astray, and that Madison shows us why. The political theory presented in his Federalist essays furnishes an argument for the integration of constitutional democracies, not least the United States, into a transnational human rights regime. He leads us toward the theory of cosmopolitan republicanism, by which I mean the view that individual freedom depends on a particular configuration of domestic and international institutions working in tandem.3 Aside from passing suggestions, Madison does not make this view explicit, understandably so, given that neither international institutions nor other large-scale republics existed in his time. But his writings lend theoretical support to the view.
I develop this argument in the course of an examination of Madison’s constitutional philosophy. Along the way, I hope to correct what I regard as certain common misconceptions about Madison’s own political thought and, with Madison’s help, to challenge widespread, but I think mistaken, ways of understanding democracy. Specifically, I shall argue that Madison is a democratic thinker; that he wisely provides democracy with a nonvoluntarist justification, valuing popular government not as an end in itself but as an indispensable means to the end of justice; that he properly warns us against an adversarialist, self-interest-based model of political action; and that he sensibly grounds checks and balances on a logic of concurrent responsibility, in which different institutional actors ensure one another’s compliance with the dictates of justice.
I argue that Madison leads us toward a worthier conception of democracy, thus placing its legitimacy on firmer ground.4 One of my purposes is to show that there is no conflict between democracy on the one hand and constitutional bills of rights or international human rights law on the other. Madison’s nonvoluntarist conception of democracy helps us make this argument. However, not everyone may be persuaded to adopt a nonvoluntarist conception of democracy. In Chapter 6 I shall argue for the democratic legitimacy of international human rights law (and of constitutionally entrenched rights) without assuming a nonvoluntarist conception of democracy.
Madison as a Democrat
Madison is remembered as a theorist of checks and balances, divided powers, federalism, and representative government. He is less often remembered as a friend of democracy. Bernard Manin writes that “for Madison, representative government was not one kind of democracy; it was an essentially different and furthermore preferable form of government.”5 With notable exceptions,6 this is the prevailing view.
I want to consider a different possibility—that Madison, instead of rejecting democracy, invites us to redefine it. Perhaps we are mistaken about democracy and Madison can set us straight. Madison is committed to popular government, but not on the voluntarist grounds that have come to dominate democratic theory. Preventing the misuse and abuse of power is his aim. “Checks and balances” are the central device—understood not as an “invisible hand” mechanism that renders personal virtue unnecessary to the common good, but as a means of harnessing moral impulses that are distributed among the citizenry at large. They are the core of a civic ethic that extends beyond interbranch relations and federalist arrangements to the construction of civil society, popular political participation and debate, and the act of voting.
Inspired by Madison, we can think of democracy as a system designed to ensure the responsible exercise of power by means of checks and balances, in which popular participation through voting is the most important but not the sole check. In democracy rightly understood, citizens reinforce and enhance one another’s efforts to comply with justice and seek the common good. Realization of the people’s will is not the purpose of democracy. (By the common good, I have in mind outcomes that are beneficial and morally desirable, though not required by justice—for