The International Covenant On Civil And Political Rights
In 1966 the U.N. General Assembly spliced the traditional, First Generation Rights from the UDHR and re-packaged them as an independent treaty that would achieve binding legal effect whenever a sufficient number of nations ratified it: The International Covenant On Civil Political Rights (“ICCPR”). That moment arrived in 1977, when the ICCPR entered into force, and the United States itself ratified the ICCPR in 1992.
This warrants extreme concern because the U.S. Supreme Court, in the tragic ruling of Missouri v. Holland, has held that international treaties may override the Tenth Amendment of our Constitution and expand the scope of federal power while diminishing the presumptive authority of the States – even though such treaties are not constitutional amendments. A true amendment would require supermajorities in the House of Representatives, the Senate, and the States; a treaty transfiguring the Constitution under the Holland decision, on the other hand, requires only a supermajority of the Senate. Precious little comfort is found in the fact that the United States declared that the ICCPR is “non-self-executing” and requires domestic legislation to take full effect, as the elites in our courts and our universities labor to make the ICCPR’s language directly enforceable against us. For example, one typical scholar has argued that the ICCPR’s non-self-executing status applies only to private lawsuits, not to the ICCPR in general, and therefore the full treaty should bind the United States despite the absence of enabling legislation. Another example of this revolt occurred in 2000, when the Supreme Court was hearing a challenge to the Violence Against Women Act on the basis that the Act exceeded the federal government’s powers over private citizens. A group of self-styled “international legal scholars and human rights experts” filed a brief citing Missouri v. Holland and urging the Supreme Court to apply the ICCPR to expand federal power beyond what the Constitution permits. As detailed in my previous book, the Court thankfully struck down the challenged portion of the Act because “[t]he regulation and punishment of intrastate violence that is not directed at . . . interstate commerce has always been the province of the States.” In more recent years, however, the Court has gone the other way and indeed made use of the ICCPR to re-write the Constitution, such as when Justice Anthony Kennedy cited the ICCPR to decree that States may no longer carry out the death penalty against persons who committed their capital crimes when under the age of eighteen.
Anyone familiar with American history will recognize that these initial steps, however popular their immediate impact may be, blaze a trail for future incursions into local (now national) sovereignty. A review of some ICCPR provisions demonstrates the cause for alarm:
Nowhere does the ICCPR mention the right to own property, even though that right is commemorated in Article 17 of the UDHR. So the ICCPR not only re-packages the UDHR, but it also abridges it by excluding a right that secures so many others. There can be no true freedom of speech, freedom of association, or freedom of religion if the material means for engaging in them are not likewise securely owned by private individuals, whether it be printing presses, computers, homes, books, or houses of worship. In short, the ICCPR’s omission of private property alone renders the ICCPR a farce.
Article 4 of the ICCPR likewise drains many of the mentioned rights of their meaning, as it authorizes governments to repeal or “derogate” those rights “[i]n time of public emergency which threatens the life of the nation . . . .” This vague, expansive exception truncates such rights as the freedom from arbitrary arrest and detention (Article 9); the right to be treated humanely and with dignity upon any arrest or detention (Article 10); the right to leave one’s country (Article 12); the presumption of innocence until proven guilty (Article 14); the right not to testify against oneself (Article 14); the right not to be prosecuted for the same offense more than once (Article 14); the right to preserve one’s privacy and home from arbitrary interference (Article 17); the basic right to hold opinions (Article 19); the right of peaceful assembly (Article 21); the right of association (Article 22); and the right to marry (Article 23). Our Constitution contains no such “exception clause” allowing the federal government to ignore its inherent limitations, so the ICCPR offers the federal government legalistic cover whenever it may indulge in unconstitutional repression.
Article 20 curtails our rights rather than protects them, specifically the right to free speech. “Any propaganda for war shall be prohibited by law. . . . Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Once again, our Constitution does not allow the federal government to regulate speech, a prerogative left to the several States. Of course this has not stopped the federal government from unlawfully doing so on many occasions, and the ICCPR simply throws gasoline on that fire.
Article 25 decrees that voting for public officials is an inherent and universal right, one that cannot be placed under “unreasonable” restrictions or denied, except perhaps during an “emergency” as described in Article 4. This directly contradicts our Constitution. For example, Article II, Section 1 allows States to choose presidential electors however they wish, whether it’s by a coin toss or popular suffrage. Moreover, Section 2 of the Fourteenth Amendment allows States to revoke the franchise from criminals, which several States still do. There is no telling whether the ICCPR’s stewards on the Human Rights Committee (see below) would regard this as “reasonable” or not, but there is also no basis for letting them decide. Logic and experience demonstrate that voting is a privilege, not a right, and the ICCPR effectively overrides political experimentation with this privilege. A nation seeking to preserve modest, limited government has a very good rationale for imposing modest, limited suffrage. The ICCPR opens the floodgates to unrestrained mobocracy that allows citizens to plunder each other.
Article 26 drops all pretense of moderation and calls for the outlawing of any discrimination, by anyone against anyone else, and for any reason. This laughably authoritarian language sweeps so far that it could conceivably prohibit gender-specific bathrooms. Even if such silly applications were avoided, the fact remains that free people can choose to associate or not to associate for any reason they wish, even if for reasons widely viewed as objectionable. As with so many other Articles, this one hands the federal government a power it utterly lacks, since nothing in the Constitution authorizes federal interference into private choices of this nature. While the federal government has twisted the Constitution’s interstate commerce clause to achieve these forbidden objectives, Article 26 provides yet more legalistic cover for this brand of unlawful government activity.
Articles 28-41 offer the coup de grâce: a “Human Rights Committee” that investigates and chastises member nations who shirk their duty to configure their citizens’ rights to the ICCPR’s vision. Even though the Committee is a creation of the ICCPR – an independent treaty – it is wholly financed by the United Nations, which also oversees the election of the Committee members. The Committee often hears from disgruntled groups such as the Center for Reproductive Rights, which in 2006 complained to the Committee that the United States is bound by the ICCPR to do more to help women obtain contraception and/or to terminate unwanted pregnancies (as if the United States did not already excel at those endeavors). In response to these kinds of complaints, the Committee has issued a growing body of decisions that, while not directly enforceable, are treated by the legal community as authoritative “jurisprudence” on the duties of all nations towards their own citizens. According to the Committee, for example, abortion is a “human right” (for the mother, not for the human fetus obviously). The Committee urges the federal government to place a nationwide moratorium on the death penalty, which the federal government lacks the constitutional authority to do. Additionally, the Committee feels that a local government within a federal system may not outlaw homosexual conduct. On the flip side, however, the Committee feels that someone should not be permitted to doubt or deny the Holocaust openly, as freedom of expression apparently does not extend to unpopular or ridiculous opinions (i.e., the very ones in need of protection, and which are best addressed by more speech rather than less). Reasonable people may differ on how to handle all these challenges, but the Human Rights Committee and the ICCPR regime it represents leave no room for debate, smearing those who disagree as enemies of humanity. “Jurisprudence” of this sort will continue to mushroom as leftists the world over clamor to ratchet moral and decisional authority beyond the reach of their countrymen.
In 1966 the U.N. General Assembly spliced the traditional, First Generation Rights from the UDHR and re-packaged them as an independent treaty that would achieve binding legal effect whenever a sufficient number of nations ratified it: The International Covenant On Civil Political Rights (“ICCPR”). That moment arrived in 1977, when the ICCPR entered into force, and the United States itself ratified the ICCPR in 1992.
This warrants extreme concern because the U.S. Supreme Court, in the tragic ruling of Missouri v. Holland, has held that international treaties may override the Tenth Amendment of our Constitution and expand the scope of federal power while diminishing the presumptive authority of the States – even though such treaties are not constitutional amendments. A true amendment would require supermajorities in the House of Representatives, the Senate, and the States; a treaty transfiguring the Constitution under the Holland decision, on the other hand, requires only a supermajority of the Senate. Precious little comfort is found in the fact that the United States declared that the ICCPR is “non-self-executing” and requires domestic legislation to take full effect, as the elites in our courts and our universities labor to make the ICCPR’s language directly enforceable against us. For example, one typical scholar has argued that the ICCPR’s non-self-executing status applies only to private lawsuits, not to the ICCPR in general, and therefore the full treaty should bind the United States despite the absence of enabling legislation. Another example of this revolt occurred in 2000, when the Supreme Court was hearing a challenge to the Violence Against Women Act on the basis that the Act exceeded the federal government’s powers over private citizens. A group of self-styled “international legal scholars and human rights experts” filed a brief citing Missouri v. Holland and urging the Supreme Court to apply the ICCPR to expand federal power beyond what the Constitution permits. As detailed in my previous book, the Court thankfully struck down the challenged portion of the Act because “[t]he regulation and punishment of intrastate violence that is not directed at . . . interstate commerce has always been the province of the States.” In more recent years, however, the Court has gone the other way and indeed made use of the ICCPR to re-write the Constitution, such as when Justice Anthony Kennedy cited the ICCPR to decree that States may no longer carry out the death penalty against persons who committed their capital crimes when under the age of eighteen.
Anyone familiar with American history will recognize that these initial steps, however popular their immediate impact may be, blaze a trail for future incursions into local (now national) sovereignty. A review of some ICCPR provisions demonstrates the cause for alarm:
Nowhere does the ICCPR mention the right to own property, even though that right is commemorated in Article 17 of the UDHR. So the ICCPR not only re-packages the UDHR, but it also abridges it by excluding a right that secures so many others. There can be no true freedom of speech, freedom of association, or freedom of religion if the material means for engaging in them are not likewise securely owned by private individuals, whether it be printing presses, computers, homes, books, or houses of worship. In short, the ICCPR’s omission of private property alone renders the ICCPR a farce.
Article 4 of the ICCPR likewise drains many of the mentioned rights of their meaning, as it authorizes governments to repeal or “derogate” those rights “[i]n time of public emergency which threatens the life of the nation . . . .” This vague, expansive exception truncates such rights as the freedom from arbitrary arrest and detention (Article 9); the right to be treated humanely and with dignity upon any arrest or detention (Article 10); the right to leave one’s country (Article 12); the presumption of innocence until proven guilty (Article 14); the right not to testify against oneself (Article 14); the right not to be prosecuted for the same offense more than once (Article 14); the right to preserve one’s privacy and home from arbitrary interference (Article 17); the basic right to hold opinions (Article 19); the right of peaceful assembly (Article 21); the right of association (Article 22); and the right to marry (Article 23). Our Constitution contains no such “exception clause” allowing the federal government to ignore its inherent limitations, so the ICCPR offers the federal government legalistic cover whenever it may indulge in unconstitutional repression.
Article 20 curtails our rights rather than protects them, specifically the right to free speech. “Any propaganda for war shall be prohibited by law. . . . Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Once again, our Constitution does not allow the federal government to regulate speech, a prerogative left to the several States. Of course this has not stopped the federal government from unlawfully doing so on many occasions, and the ICCPR simply throws gasoline on that fire.
Article 25 decrees that voting for public officials is an inherent and universal right, one that cannot be placed under “unreasonable” restrictions or denied, except perhaps during an “emergency” as described in Article 4. This directly contradicts our Constitution. For example, Article II, Section 1 allows States to choose presidential electors however they wish, whether it’s by a coin toss or popular suffrage. Moreover, Section 2 of the Fourteenth Amendment allows States to revoke the franchise from criminals, which several States still do. There is no telling whether the ICCPR’s stewards on the Human Rights Committee (see below) would regard this as “reasonable” or not, but there is also no basis for letting them decide. Logic and experience demonstrate that voting is a privilege, not a right, and the ICCPR effectively overrides political experimentation with this privilege. A nation seeking to preserve modest, limited government has a very good rationale for imposing modest, limited suffrage. The ICCPR opens the floodgates to unrestrained mobocracy that allows citizens to plunder each other.
Article 26 drops all pretense of moderation and calls for the outlawing of any discrimination, by anyone against anyone else, and for any reason. This laughably authoritarian language sweeps so far that it could conceivably prohibit gender-specific bathrooms. Even if such silly applications were avoided, the fact remains that free people can choose to associate or not to associate for any reason they wish, even if for reasons widely viewed as objectionable. As with so many other Articles, this one hands the federal government a power it utterly lacks, since nothing in the Constitution authorizes federal interference into private choices of this nature. While the federal government has twisted the Constitution’s interstate commerce clause to achieve these forbidden objectives, Article 26 provides yet more legalistic cover for this brand of unlawful government activity.
Articles 28-41 offer the coup de grâce: a “Human Rights Committee” that investigates and chastises member nations who shirk their duty to configure their citizens’ rights to the ICCPR’s vision. Even though the Committee is a creation of the ICCPR – an independent treaty – it is wholly financed by the United Nations, which also oversees the election of the Committee members. The Committee often hears from disgruntled groups such as the Center for Reproductive Rights, which in 2006 complained to the Committee that the United States is bound by the ICCPR to do more to help women obtain contraception and/or to terminate unwanted pregnancies (as if the United States did not already excel at those endeavors). In response to these kinds of complaints, the Committee has issued a growing body of decisions that, while not directly enforceable, are treated by the legal community as authoritative “jurisprudence” on the duties of all nations towards their own citizens. According to the Committee, for example, abortion is a “human right” (for the mother, not for the human fetus obviously). The Committee urges the federal government to place a nationwide moratorium on the death penalty, which the federal government lacks the constitutional authority to do. Additionally, the Committee feels that a local government within a federal system may not outlaw homosexual conduct. On the flip side, however, the Committee feels that someone should not be permitted to doubt or deny the Holocaust openly, as freedom of expression apparently does not extend to unpopular or ridiculous opinions (i.e., the very ones in need of protection, and which are best addressed by more speech rather than less). Reasonable people may differ on how to handle all these challenges, but the Human Rights Committee and the ICCPR regime it represents leave no room for debate, smearing those who disagree as enemies of humanity. “Jurisprudence” of this sort will continue to mushroom as leftists the world over clamor to ratchet moral and decisional authority beyond the reach of their countrymen.
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