Republican presidential candidate Donald Trump recently:
The call is simplistic and riddled with contradictions. But Trump’s confusion about rights is perhaps no greater than that of many people, who are given little reason by political leaders to understand rights seriously.
Loose and reckless rights talk increasingly characterises populist politics, from protecting citizens’ “rights” by opposing immigration to promoting “free speech” rights by permitting racist conduct.
Anyone can claim a “right”. But if a rights claim is to make sense in a public debate, in the formulation of public policy and in law, then it needs to be an established and accepted right. The meaning and scope of the right must be well-defined and understood.
There is always the opportunity to call for and establish new rights, but there remains essential agreement on what rights are for purposes of public debate.
What are civil rights?
In the US, talk of rights is almost exclusively defined by the common law, the Civil Rights Act and an idiosyncratic, 18th-century Constitution with its related Supreme Court decisions.
Scant attention is paid in the US to the international human rights that have been agreed on at the United Nations. So, when Trump talks about “a new civil rights agenda” he is invoking the civil rights – freedom from state oppression – the colonists fought for and won in 1776. And that is where Trump’s contradictions come in.
Rarely is a civil right a claim that the state provides for an individual. To the contrary, a civil right is a demand that the state limits its conduct. For example, civil rights demand that the state does not deprive liberty, does not prevent free speech, does not torture, does not prevent voting and does not conduct unfair trials.
In calling for rights to education and jobs protection, Trump’s rhetoric is straying into territory the US has long seen as anathema: action by the state to provide for individual needs.
In international human rights, rights to education and to work are grouped with the “economic and social rights” that require state action and intervention, rather than with the “civil and political rights” that, like the US-style civil rights, require state restraint.
Trump may have latched on to the term “civil rights” because of its powerful rhetorical value in the US. But the “rights” he is talking about are rights associated with big government, not the small government that conservatives champion.
Franklin Roosevelt’s significant contribution to the development of contemporary international human rights after the second world war was his declaration of “The Four Freedoms”:
freedom of speech;
freedom of worship;
freedom from want; and
freedom from fear.
Three of these are classically civil rights. But freedom from want is an economic and social right, with an implicit expectation the state will take steps to keep people from want.
The US has never embraced such a right. It remains the only developed nation not to have agreed to be bound by the UN’s International Covenant on Economic, Social and Cultural Rights.
Since its independence, the US has put little store by reliance on the state to keep people from want. That is primarily an individual and community responsibility, which explains in large part the resistance to the “socialism” of Obamacare.
With promises such as a “bold national infrastructure program” Trump is either promising to be a “socialist” president, or he is making reckless and misleading use of rights language.
Competing claims
Trump’s language flags another issue that is commonly glossed over or misunderstood wherever there is talk of human rights, including in Australia.
A human rights claim is often treated by those who make it – and attacked by those who oppose it – as an absolute claim, as if a human right is non-negotiable. Coincidentally, this is often referred to as treating a right as “trump”. But rights are rarely trumps, and are necessarily and constantly negotiated. Recognition of one right will often limit another.
So when Trump aims to promote a right to safety by “dismantling gangs and removing violent offenders from the streets” he has to negotiate the very civil rights that US citizens hold dear. These include rights to silence, to presumption of innocence, to lawful inspection and seizure, to fair trial and so on.
And when Trump aims to promote a right to work by dealing with “illegal immigration”, he again has to negotiate competing civil rights.
Is Australia any better at rights talk?
This negotiation of competing rights is an exercise in proportionality. It is an unremarkable analysis that human rights bodies engage in all the time, including when assessing Australian laws for human rights compatibility.
But a discussion of proportionality undercuts populist rhetoric that uses, or condemns, human rights as absolute claims. This absence of nuance has plagued public debate in Australia on issues such as freedom of speech, anti-terror measures and the religious aspects of same-sex marriage.
Where does that leave Trump’s “new civil rights” rhetoric? It certainly doesn’t advance a clear understanding of what “rights” are, and what sense it does make is always going to be peculiar to the US situation.
Looking at it from Australia, it is simply unhelpful to an understanding of rights, except to remind us of how easily the idea can be used and abused in public debate.
Simon Rice does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.
This article was originally published on The Conversation. Read the original article.