Protecting the Constitution, At Home and Abroad

Constitution Day serves as a reminder of the importance of this historical document, a document which embodies the concept of the rule of law and acts as the blueprint for the American people. Part of this blueprint includes the Framers' desire that the United States government respect international commitments made under treaties signed by the President and approved by the Senate. Indeed, the Supremacy Clause makes the Constitution, Federal Statutes, and U.S. treaties "the supreme law of the land."

When the incoming President takes or reaffirms the oath of office, they are committing themselves to “preserve, protect and defend the Constitution of the United States." In doing so, they are obliged to recognize and respect U.S. ratified treaties, at home and abroad. While this commitment is made to the American people at the inauguration ceremony, it echoes and resonates around the world, as the U.S. commitment to the family of nations to respect the rule of law and U.S. international and treaty obligations is vital to the preservation of international peace and security. The erosion of this commitment over the past seven years cannot be over exaggerated, especially in the area of protection and promotion of human rights at home and around the world.

One of the most important tasks facing the next President is how to reassert the commitment of the United States to the rule of law, including the constitutionally mandated obligations under international law. The new President will have a unique opportunity to send a clear message to the world regarding the reemergence of U.S. leadership through human rights protection and enforcement. Both major party presidential candidates are committed, at least rhetorically, to strengthening international laws and norms. For example, Senator John McCain told the Hoover Institution in May 2007:

[To] be successful international leaders, we need to be good international citizens. This means upholding and strengthening international laws and norms, including the laws of war. We must champion the Geneva Conventions, and we must fulfill the letter and the spirit of our international obligations. It is profoundly in our interest to do so, since our failure to abide by these rules puts our own soldiers at risk. Our moral standing in the world requires that we respect what are, after all, American principles of justice. Our values will always triumph in any war of ideas, and we can't let failings like prisoner abuse tarnish our image. If we are model citizens of the world, more people around the world will look to us as a model.

Senator Barack Obama echoed Senator McCain when he stated:

[S]ince the founding of our nation, the United States has championed international law because we benefit from it. Promoting - and respecting - clear rules that are consistent with our values allows us to hold all nations to a high standard of behavior, and to mobilize friends and allies against those nations that break the rules. Promoting strong international norms helps us advance many interests, including non-proliferation, free and fair trade, a clean environment, and protecting our troops in wartime. Respect for international legal norms also plays a vital role in fighting terrorism. Because the Administration cast aside international norms that reflect American values, such as the Geneva Conventions, we are less able to promote those values abroad.

Generally speaking, when people in the U.S. think about human rights, they tend to associate them with what happens overseas. This common misperception is largely a result of deliberate policy to exempt the U.S. from domestic human rights obligations. We are told that human rights are a foreign concept which belongs to the realm of U.S. foreign policy, within the exclusive jurisdiction of the State Department and the congressional foreign relations committees. Fortunately, the last few years have seen America associate human rights more closely with U.S. conduct in the so-called “war on terror,” including the torture and abuse of detainees; renditions and disappearances; secret and indefinite detentions; Guantánamo; Bagram; and more.

There is no doubt that these will be among the most pressing issues faced by the new President on day one. That is why, and for good reason, most of the debate around human rights has focused on candidates’ commitment to the Geneva Conventions and other important treaties and laws the U.S. largely ignored over the past seven years. But for the new President to reclaim U.S. standing in the world and win the hearts and minds of the people aboard they will have to assert that the U.S. commitment to human rights and international law begins at home, in other words to lead by example.

Since 1992, the U.S. has ratified three major human rights treaties in addition to two optional protocols: the International Covenant on Civil and Political Rights (1992); Convention Against Torture (1994); Convention on the Elimination of Racial Discrimination (1994); and optional protocols to the Convention on the Rights of the Child.Yet, very little was done to enforce these treaties and implement them to the benefit of all people in the U.S.

Moreover, little oversight and minimal legislative initiatives have focused on codifying the rights and obligations under these treaties and protocols. In most cases, U.S. action has been limited to the periodic reporting and review process by the Geneva-based committees monitoring compliance with these treaties. International human rights treaties should not be seen as merely nonbinding international commitments between countries with no domestic effect, but rather must be treated as the supreme law of the land — exactly how the Framers of the U.S. Constitution intended. This will require all branches of government to engage proactively to bring current policies and laws into compliance with treaty obligations. To do so, the next President will have to work with Congress to implement these commitments by transforming them into detailed domestic laws, policies, and programs.

This is the only way the President will be true to their oath to “preserve, protect and defend the Constitution.”