Peter Berkowitz, the Tad and Dianne Taube Senior Fellow at the Hoover Institution, directed the State Department’s Policy Planning Staff in 2019–21. While there, he helped create the Commission on Unalienable Rights, which published its report in July 2020. He spoke with Chris Herhalt about why then–secretary of state Mike Pompeo decided to form the commission, the religious and intellectual diversity of its membership, and what lessons it could teach us about today’s global human rights challenges.
Chris Herhalt: Peter, where did the idea for this report come from? Why was it created and why did you select the folks that you did to craft it?
Peter Berkowitz: The idea for this report had a single source: Secretary of State Mike Pompeo. He came to this idea out of deep concern about the status of human rights in American foreign policy. On the one hand, as secretary of state, he observed that in his view, at least, the noble idea of human rights had been hijacked by international organizations to advance very partisan political interests—progressive interests. At the same time, Pompeo had a deep understanding that human rights are actually not the property of the left. They’re not specifically a progressive cause. He had a deep appreciation of the Declaration of Independence, which speaks of unalienable rights. That means rights that can’t ever be legitimately taken away from you as a human being. Life, liberty, and the pursuit of happiness were all equal in those rights. And he understood the language of unalienable rights or natural rights from the eighteenth century: that was the term that was used to speak of rights that are inherent in all human beings.
He thought it would be useful to him as secretary of state to create an independent commission, the purpose of which was to recover the original eighteenth-century founders’ understanding of the rights inherent in all persons. It would be useful to have this commission examine our constitutional charter of government and how it respected rights. And it would be useful to have this commission consider the obligations that the United States took on in 1948 when we voted to approve in the (UN) General Assembly the Universal Declaration of Human Rights. So, in July 2019, Secretary Pompeo announced that he was forming such a commission. He appointed an old friend of mine, a former colleague of mine, the great Mary Ann Glendon, who at the time was a longtime professor at Harvard Law School, to chair the commission. By the way, she had been Mike Pompeo’s mentor at Harvard Law School. And I, as the head of the policy planning staff, had the honor of serving as the executive secretary of the commission—in effect, Mary Ann’s number two.
Chris Herhalt: It struck me that among the people you convened to write this, all the Abrahamic faiths were represented, and more. What was important about that, and what does that say about the universal appeal of what’s included in the Declaration of Independence?
Peter Berkowitz: This diversity—true diversity, intellectual diversity, religious diversity—was very important to the commission, and it reflected the challenge that was faced in 1947 and 1948 as the United States was leading the charge to draft and then gain approval in the UN General Assembly of the Universal Declaration of Human Rights. There was a confidence that you could identify a small set of universal rights, universal claims that men and women of different religions and different nationalities could agree on. Or, in other words, that there were some actions and some benefits that were so important to our humanity that all governments would want to at least say we support them, and that there were some actions so awful that almost all governments would at least say we’re not going to engage in them. But it was also recognized at the time that it was not to be expected that representatives of all the many nations in the world, all the many peoples in the world, would put forward the same reasons for their affirming these universal principles.
In fact, the faith was justified.
By a huge majority, the General Assembly in 1948 did approve the Universal Declaration of Human Rights (UDHR), which is an austere document, with just thirty articles. Now, we thought also as an independent commission created by the secretary of state, it would be very important in our effort to understand ultimately the place of human rights rightly understood in a responsible US foreign policy to bring together not only people from different faith traditions but also people with different areas of expertise. So yes, we had Jews on the commission, we had Christians on the commission, Protestants, and Catholics. We had a Muslim on the commission. We probably had people who, whatever their backgrounds, were not regular attendees at houses of worship. In addition, we had political scientists, we had law professors, we had activists, we had scholars of comparative literature, we had theologians, we had people from philosophy departments, we had people with political experience.
We wanted to make sure that on the commission we had that genuine diversity of expertise and sensibility and background that would enable us to have discussions that would bring into focus the various issues and the various questions that surround human rights in the twenty-first century.
Chris Herhalt: Part of what the report does is highlight where the Declaration of Independence ends and how the UDHR sometimes extends beyond that in adding social and economic rights. You talk about why that might be problematic. Why is making that distinction important?
Peter Berkowitz: It’s important because there are a variety of confusions that surround human rights. One of the confusions that we wrestled with—and in a way, one of the confusions that prompted Secretary Pompeo to establish the commission—stems from the proliferation of rights in our era. What do I mean by that? Well, the Declaration of Independence identifies three unalienable rights—life, liberty, and the pursuit of happiness—and suggests that there are other unalienable rights. The Constitution, which is mainly a charter of limited and enumerated powers, also provides in the first ten amendments some basic constitutional rights, also restricted in numbers, starting with religious liberty, then speech, freedom of the press, petition of government, and assembly.
So, those rights are limited, but we live in an age in which we see a huge increase in the number of rights. How did that happen? Well, there’s a political interest in renaming your political preference, your political view, your political priority, a “right.” Why? A preference or a priority or a political judgment is, in the nature of things, debatable. You have one opinion; I have another opinion. We go out into the public sphere. It’s a democracy. We debate. I try to get a majority in support of my opinion. You try to get a majority in support of your opinion. That can be frustrating to me because you may succeed in bringing a majority over to your side, or vice versa.
But rights are different. Rights are intended not as something subject to debate. The very notion of rights, especially human rights, suggests something that is universal, objective, and necessary.
If I can recast my political preference as a right, I no longer have to engage in political debate with you. I can just simply pronounce you as wrong or wicked because you’re not merely disagreeing with me, you’re disagreeing with what’s universal, objective, and necessary. So, this proliferation of rights actually has a big cost for civic harmony. It undermines democratic dialogue.
It was very important to us to try and illuminate what is a right, what is not a right, and the status of various rights. You asked a question about social and economic rights. In the United States, we tend not to speak of social and economic rights. Our Constitution protects what we might call civil and political rights. These are mostly limits on government, or they carve out spheres in which you and I and our fellow citizens can operate freely.
What is referred to when we speak of social and economic rights? A more common term for this in American political discourse is an entitlement. An entitlement is something government owes us, not just a protection, but a good. So, for example, unemployment insurance, old age insurance, health insurance, Medicare and Medicaid and other programs, disability insurance, social and economic rights, which are really crystallized in the middle of the twentieth century with President Franklin Delano Roosevelt and are meant to ensure that no American falls below a certain minimum of material welfare. So, they have a different character. They are especially material resources that the government provides for you as opposed to, let’s say, the right of freedom of speech or religious liberty. Those really say that the government’s not going to interfere with your religious practice or nonpractice. It’s not going to punish you for your opinions.
Now, the UDHR speaks of social and economic rights, but it speaks of them in a very careful way, whereas the civil and political rights that are most familiar to us as Americans are spoken of in absolute terms. When it comes to social and economic rights, the UDHR emphasizes that these shall be provided in accordance with a country’s social and political organization and its resources. In effect, the United States complies with this by having adopted a variety of mechanisms and practices and entitlement programs that do ensure a minimum level of safety and security for all citizens.
One can quarrel with how well we’ve done. One might say the United States must go farther in the direction of the social-democratic spirit in Europe, but what one can’t deny is that the United States has since the middle of the twentieth century taken very significant strides to also provide basic entitlements for citizens.
Chris Herhalt: I want to ask about how the report examines things that evolve over time, specifically something like slavery. It says there was an understanding on one side in the pre–Civil War era that the Declaration of Independence was going to restrict society from evolving to eliminate slavery, but then on the other side, it cites Abraham Lincoln, who says the Constitution set the practice “in the course of ultimate extinction.” Are there any emerging unalienable rights? Is there anything that is getting to the point where it should be considered an unalienable right in the same way slavery was eventually put out to pasture?
Peter Berkowitz: A couple observations. One, the eventual eradication of slavery and the arguments against slavery did in no way involve a new right. They involved the application of an old right to human beings who had been deprived of the protections of that right. So, the Lincoln point is that enslaved African-Americans in the United States always should have been protected by unalienable rights. But they weren’t. This was a failure on the part of the United States. We can understand as a political matter why this happened: It was a deeply entrenched institution. Slavery was permitted just about everywhere around the world at the time. It’s not as if the United States was the last to abolish it, but it’s still the case that the terrible practice of slavery in the United States was fundamentally inconsistent with the rights promised in the Constitution. So, as far as things go today, one could speak of new constitutional rights.
One could speak of granting specific kinds of rights to this group or that group. But as far as fundamental human rights go, no, I don’t think we are in need of elaborating new ones. What we remain in need of is honoring the ones we have. This would come up when I served in government and people would say, “Well, there’s so much injustice in the world.” There is a great deal of injustice in the world, and we were not for a moment suggesting that the violation of human rights exhausts the forms of injustice. But we were suggesting that under the rubric of humans protecting human rights, to focus on the basics like religious liberty, freedom of speech, and actually the most important in a way, the ability to live securely and safety, your right to life.
We can see that right now unfolding in Iran. The brave people of Iran go to the streets and protest against their dictatorial rulers without the security of body, which is a right without which none of the other rights is of any importance. There are a wide variety of goods and services that are essential to a full and complete human life, but for those concerned about human rights, I think it’s useful to continue to focus on the basics. When we say human rights, after all, we mean something genuinely universal. Some of the things that we in the United States think are very good and take a top priority are not going to win the assent of people in other countries and people of other traditions.
Chris Herhalt: Among your concluding observations are these two: “It is urgent to vigorously champion human rights and foreign policy” and “the power of example is enormous.” The global order is a lot more chaotic now than when you were in the State Department. Are those two statements still as important as they were, or maybe even more so?
Peter Berkowitz: Oh, they’re just as relevant. That doesn’t mean it is easy now. And by the way, it wasn’t easy then. Remember, when I was in government service, we were dealing with COVID, we were dealing with a risen China, a great-power China. We already knew the scope of its threat on all the continents. Still, I accept your basic point that the challenges are great today. Are there still opportunities for the president of the United States and the secretary of state to make clear that all nations have an obligation to protect basic rights and fundamental freedoms of their citizens? I think yes. And even as we speak, the news is reporting that President Trump has announced that help is on its way to the people of Iran who are standing up against their dictatorial leaders.
A point we make clear in the report is that foreign policy is complex. There are always a variety of factors. Just as there are a variety of factors driving individual human behavior, there are a variety of factors driving the behavior and the conduct of nation-states. Does the United States have security interests in Iran and the Middle East? We sure do. But it’s reasonable to suppose that a part of the calculation of the Trump administration is that the United States, if it has the capabilities, should not stand idly by as a dictatorship slaughters its own population.
Chris Herhalt: Another concluding observation stood out to me. It says, “The US should prudently pursue all diplomatic options, addressing abuses by allies as well as unfriendly nations, while never promoting a false moral equivalence between the rights-respecting countries that at times fall short and countries that systematically trample on their citizens’ human rights.” Do you think the current administration is doing a good job with that?
Peter Berkowitz: I don’t claim that we did a great job of that. What we describe there is really masterful diplomacy, suggesting that we don’t give our friends and allies a blank check just because they’re friends and allies. We all have to live up to human rights. We don’t give ourselves a blank check, but at the same time, we have to keep in mind the fundamental distinction between a rights-protecting democracy like the United States that fall short of its ideals and authoritarian governments like Russia, China, Iran, and Venezuela under Maduro, which completely reject the notion of universal human rights. We faced this dilemma, you may recall from the summer of 2020, when the report was coming out. In fact, some people questioned in the State Department whether it was even appropriate, given that they said systemic racism plagues the United States, as evidenced in the killing of George Floyd. Who are we to issue a report on human rights? Shouldn’t we just hang our heads in shame?
You’ll notice we also have a preface to the report in which we use similar language in which we remind—in fact, we exhort—fellow Americans to understand that it is part of being committed to human rights to recognize where you fall short. But still, a rights-protecting democracy that falls short is a different political entity from an authoritarian government that rejects the very idea of rights. We make reforms within our system, as we did ultimately in eradicating slavery. And within our system, we have made great strides over the past sixty or seventy years in eliminating legally based sanctions of racial discrimination.
