Book Reviews

Global Human Rights in America

By Daniel J. Sargent
Tuesday, October 25, 2016, 9:24 AM

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A review of Mark Bradley's The World Reimagined: Americans and Human Rights in the Twentieth Century (Cambridge University Press, 2016).

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In June 1945, diplomats from fifty countries inaugurated the United Nations. Three years later, Sei Fujii acquired a parcel of land in southern California. Born in 1882, Fujii had immigrated to the United States from Japan in 1903. Ineligible for citizenship, he remained an alien—a status that made it illegal under California’s Alien Property Act for Fujii to own land. Title to the land that Fujii purchased in 1948 reverted, automatically, to the state.

An inmate of wartime internment camps, Fujii was also a 1911 graduate of the University of Southern California’s Law School. Unable to practice law because of his alienage, Sei Fujii became a plaintiff. His demand that California return his land was hardly the first case to test the legality of California’s Alien Property Act. What was novel were the legal grounds on which Sei Fujii based his claim.

California’s Alien Property Act, Fujii argued, was “inconsistent with the declared principles and spirit of the United Nations Charter.” Surprisingly, the Court of Appeal for the Second Appellate District of California upheld Fujii’s recourse to international legal norms. In June 1950, Justice Wilson declared California’s Alien Property Act “contrary to both the letter and the spirit of the [United Nations] Charter.” State law, Wilson declared, must “yield to the treaty as the superior authority.”

The problem of “superior authority” resides at the center of Mark Bradley’s magnificent new book, The World Reimagined. Like other historians of human rights, Bradley is concerned with the origins and evolution of a universalist creed. But he proceeds from a particular vantage, that of the United States of America. An interpretation of the American encounter with the global politics of human rights, The World Reimagined asks readers to think anew about where human rights originated, why they matter, and the political work that they do.

The terrain into which Bradley ventures is crowded. Scholarly output in recent years has been so abundant that some practitioners characterize the history of human rights as a field of history unto itself. The historiography is a thicket, and some crude generalization may help situate Bradley’s contributions. Broadly, the history of human rights cleaves into two camps: one progressive, the other revisionist.

For the progressives, who once dominated the field, human rights represent the culmination of humankind’s capacity for moral advancement, an apotheosis that coheres in the post-Second World War remaking of international order. The UN Charter of 1945 and the Universal Declaration of 1948 are landmarks in this progressive conception, not only as institutional accomplishments but also as a crucible of historical interpretation. For the Universal Declaration’s framers, after all, it mattered that human rights were the culmination of deep and diverse ethical traditions: cosmopolitanism facilitated legitimation in the General Assembly of the United Nations.

Legitimation, it is safe to say, has not been a concern for the revisionists. Beginning with Sam Moyn’s seminal interventions (showcased in The Last Utopia), the revisionists have worked to dismantle what they construe to be the fictive foundations of the progressive tradition. Universal rights did not pervade the postwar settlement, Moyn argued; sovereignty did. Human rights arrived later: as an inversion of the Left’s disenchantment with Communism; as a normative basis for America’s superpower exertions; and as an ideological predicate for world order in a post-Cold War age.

Such, then, is the intellectual landscape in miniature. Bradley, it can now be said, manages to avoid emplacement in either the progressive or revisionist camps. He instead achieves something unusual: an original interpretation of the American encounter with human rights that draws upon the achievements of both the progressive and the revisionist approaches. The arc of Bradley’s historical argument goes something like this.

Echoing the progressives, Bradley situates the breakthrough moment for human rights in the 1940s. What emerged from the “fluidities” of the war and postwar recasting, he argues, was “a new global human rights politics,” a politics that sought to subject the sovereignties of nation-states to the universal authority of human rights. This is, on the face of things, a familiar claim, but Bradley devises an innovative, persuasive explanation for the ascent of human rights politics in the 1940s.

Historians, Bradley notes, have stressed the agency of diplomats in the remaking of global institutions and norms. Bradley, in contrast, describes a social, cultural, and intellectual efflorescence. Photojournalism engendered identification with distant suffering, he argues, even as the camera’s lens stripped its subject of specificity, transforming particular atrocities into universal touchstones. What ensued, Bradley argues, was a social and political mobilization that aimed to reinvent human rights as positive international law, a task that international lawyers like Hersch Lauterpacht pursued with gusto. The UN Charter proved a seminal achievement, and the moment was ripe with transformative possibilities, to which Americans responded.

Within the United States, advocates for civil rights seized the moment. Domestic litigants, as Bradley explains in another significant intervention, made recurrent recourse to international human rights instruments—not only the UN Charter but also the Act of Chapultepec, which embedded rights claims within the inter-American system. Even the Truman administration concurred—in its landmark report, To Secure These Rights—that international legal instrumentalities entreated Congress to vindicate domestic rights. The prospects looked bright—until, ironically, an appellate court in Los Angeles accepted Sei Fujii’s claim that the UN Charter trumped California law.

Fujii might have vindicated the transformative potential of human rights in the United States. Instead, Bradley explains, Justice Wilson’s decision sparked a furious backlash. Conservatives assailed the court’s decision, declaring human rights a threat to sovereignty and the US Constitution. Reactionaries even attempted to amend the US Constitution so as to curtail the president’s power to enter into binding treaties such as the UN Charter. Perceiving in this a threat to presidential authority, Dwight Eisenhower thwarted the effort only by echoing the Bricker Amendment’s supporters, by engaging in ritualized “performances of sovereignty” (111), as Bradley puts it.

The post-Fujii backlash foreclosed upon the elastic possibilities of the 1940s. Scorned and reviled, human rights entered an American wilderness. There they remained for two decades, Bradley argues, until human rights reappeared in the 1970s—not as something new, as in the 1940s, but now as something borrowed anew.

Like other historians, Bradley characterizes the Seventies as a decisive phase for human rights, but what he perceives in the American encounter with human rights in the 1970s is more echo than breakthrough.  (Here he departs from Jan Eckel and Samuel Moyn’s The Breakthrough: Human Rights in the 1970s.)  The reengagement with human rights during the 1970s was, in Bradley’s telling, to some extent a structural phenomenon, as the dynamics of globalization corroded the authority of states while facilitating transnational mobilizations.  (I advanced a version of the structural argument in A Superpower Transformed: The Remaking of American Foreign Relations in the 1970s).

Yet the changes that really primed Americans to reengage with human rights occurred in the realm of culture and affect, Bradley argues. Therapeutic individualism created receptive audiences for the testimonial work that NGOs undertook. Transnational advocacy flourished, as Americans worked, listened, and felt on behalf of distant strangers. Still, the impetus for human rights politics mostly originated elsewhere, Bradley insists, describing as exemplary the career of Amnesty International. Founded in London in 1961, Amnesty did not flourish in the United States until the early 1970s, by which point the International Secretariat was already prospering.

Specific atrocities and particular texts shaped the American reengagement. Aleksandr Solzhenitsyn and his Gulag Archipelago exercised vast impact, though it was the Russian’s testimonial style, more than his virulent anti-Communism, that reverberated with Americans beyond the neoconservative milieu.

If the East Bloc became one pole of the American human rights imagination, the other was Latin America. US citizens imbibed the testimonial work that Latin Americans produced and even staged their own cultural interventions, including the torture paintings of Leon Golub and the Hollywood blockbuster, Missing. Derivative of Latin American human rights work, such cultural interventions, Bradley argues, exemplified “a particular human rights vernacular rooted in conceptions of bodily integrity and psychic trauma” (197).

Bradley’s historical arc concludes in paradox. The human rights renaissance of the 1970s has endured, with the result that “human rights remain deeply imprinted on the ways Americans think about how to be in the world” (234). Yet the United States, as a polity and a superpower, remains an “ambiguous presence” (230) and ambivalent participant in what Bradley calls our “age of human rights” (227).

The manifestations of American ambiguity, as Bradley sees them, are manifold. The US government participates only sporadically in international institutions and initiatives, while American courts are unlikelier than foreign counterparts to predicate decisions upon international human rights instruments. While other countries have embraced the age of rights, the United States has waged a global war on terror.

“The American allergy to international human rights law,” Bradley writes, in a pointed conclusion, indicates the “long shadow” of the anti-human rights backlash that followed Fujii and manifested itself in the early 1950s in the Bricker Amendment. (230). This is a strong conclusion—and an ingenious inversion of the revisionist critique of human rights. For the United States, Bradley suggests, the problem may not be human rights as such but a political culture that inhibits the vindication of their promise.

Some may incline towards more optimistic conclusions, as does this reader. Formulated at the national scale, after all, rights continue do immense political work in the United States, even in the Age of Trump. Bradley describes the belated arrival of marriage equality as an indication of American backwardness on human rights. As a matter of process, though, the realization of marriage equality has tended to affirm the centrality and ascendancy of rights in the United States. In Argentina, France, the Netherlands, and the United Kingdom, marriage equality was conferred by parliamentary majorities. In the United States, almost every step from Lawrence v. Texas (2003) to Obergefell v. Hodges (2015) entailed juridical affirmation of rights. International comparison of other kinds of legal controversy, such as free speech or gun rights, for that matter, might also indicate the United States to be distinctive in the intensity of its commitment to constitutional guarantees of rights.

Progressive breakthroughs from Brown v. Board (1954) to Obergefell have hinged upon the U.S. Constitution, of course, not international human rights instruments. American skepticism of global rights declarations can indeed be construed to confirm the enduring power of John Bricker’s ghost, much as Bradley has it.

Still, skepticism about global human rights might, alternatively, be read as indicating the success that domestic constitutional rights have achieved in the American experience, perhaps rendering global human rights not only an affront to popular sovereignty, as Bricker and his ilk would have it, but also, from a more progressive vantage, unnecessary. Here, too, the case of Sei Fujii may prove suggestive.

In 1952, the Supreme Court of California heard the state’s appeal. Echoing the Bricker backlash, the California Supreme Court rejected the notion that state law must bow before the UN Charter. Yet the court found in favor of Fujii. The basis for its decision? The Fourteenth Amendment to the US Constitution. California opted not to appeal to the US Supreme Court, and Fujii would stand as an early marker in a long and honorable line of cases to expand the domain of rights on the basis of constitutional law.

Mark Bradley is surely right to emphasize the idiosyncrasies of the American encounter with human rights. His conclusions, in fact, cast some doubt upon the very coherence of human rights as a unified field of inquiry. So disparate and so distinctive might the experiences of particular societies have been, that we may well be better off engaging the global phenomenon of human rights from a multitude of particular vantage points. Surely other countries, too, have distinctive stories to tell.

Whether the American experience has been distinctive is no longer an interesting question; Mark Bradley has amply made his case.

What remains open for debate, at least for this reader, is how we should understand the distinctive and, as Bradley argues, limited engagement of the United States with the elastic possibilities of human rights in the twentieth century and after? Has the American story been a story of shortcoming, failure, and missed opportunity, as Bradley proposes? Or might America’s in fact be a story of at least qualified success?

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