Human Rights and Constitutional Democracy

I. INTRODUCTION

In his wonderful new book, The Promise of Human Rights,¹ Professor Jamie Mayerfeld advances a bold thesis. He contends that “international human rights law is a necessary extension of domestic checks and balances, and therefore necessary for constitutional government itself.” Moreover, he adds, “constitutional democracy is incomplete unless domestic human rights institutions are bolted into a system of international guarantees.”²

In defending these claims, Mayerfeld is challenging two different beliefs held by many US legal scholars. Call these the “majoritarian view” and the “sovereigntist view.” Majoritarians, like Justice Scalia, tend to see rights-based judicial review as a threat to democratic governance because judges engaged in rights-based judicial review substitute their own views for the will of the majority.³ Mayerfeld’s response to the majoritarian objection is rooted in a conception of “Madisonian democracy” that he defends at length in Chapter 2. In brief, Mayerfeld contends that James Madison endorsed “a nonvoluntarist conception of democracy.”⁴ According to the nonvoluntarist conception, “[t]he point of popular government is not to realize the people’s will . . . but instead to foster just and wise policy . . . Justice and the common good, not self-interest or group interest, should determine the political choices of citizens and officials alike.”⁵ Mayerfeld believes that implementation of international human rights norms promotes justice and the common good. Therefore, based on his theory of Madisonian democracy, Mayerfeld argues that judicial application of international human rights law “is not antidemocratic [because] . . . [t]he policies it bars are policies that governments should not consider anyway, so their removal from legislative consideration represents no loss for democracy.”⁶

In contrast to majoritarians, sovereigntists accept the need for rights-based judicial review to check the excesses of majoritarian democracy. However, they challenge the democratic legitimacy of international human rights law, and of supranational judicial review, because they believe that democracy requires self-governance, and self-governance means that decisions about protection of individual rights must be made at the national level.⁷ Responding to the sovereigntists, Mayerfeld quotes the Declaration of Independence to support his view that “all human beings are ‘endowed with certain unalienable rights’” and that “governments exist ‘to secure these rights.’”⁸ In the eighteenth century, Madison recognized that majoritarian democracy in state governments posed a threat to the unalienable rights of minorities. Madison addressed this problem by designing a constitutional system that transferred authority from state governments to the national government to provide an external check on majoritarian tyranny at the state level.⁹ Mayerfeld argues that, in the twenty-first century, protection of unalienable rights necessitates a transfer of authority from the national to the supranational level to provide an external check on majoritarian tyranny in nation-states. In his words: “The conditions that in Madison’s time threatened justice in direct democracies and small republics are today reproduced and exacerbated at the national level . . . In our own time, Madisonian constitutionalism calls for international oversight of national policy—in other words, the creation of a strong international human rights regime.”¹⁰

In sum, the rights codified in international human rights treaties are the “inalienable rights of all members of the human family.”¹¹ The central purpose of democratic government is to protect those inalienable rights. If legislators do their jobs well, they will enact laws to promote effective implementation of human rights norms. However, judicial review is necessary to ensure that legislators do not sacrifice inalienable human rights on the altar of majoritarian preferences. Moreover, effective protection of human rights requires an external check on national decision-makers. Mayerfeld devotes two chapters of his book to a detailed analysis of the war on terror to show that—even in the United States, a nation founded on a commitment to inalienable rights—the national government has an unfortunate tendency to violate fundamental human rights when perceived national security interests are at stake.¹² Since the United States government has demonstrated its willingness to sacrifice human...