Tuesday, July 16, 2019

"Unalienable" Explained: The Meaning of the State Department's New Commission

by Deena R. Hurwitz, J.D., human rights attorney and educator

The creation of a Commission on Unalienable Rights – CUR, as it might be called – is just one more example of the Trump administration’s exceptionalism and utter disregard for the process of law-making, for the nation’s obligations under international law, and for even constitutional law.  Shamelessly, Secretary of State Michael Pompeo announced the CUR is needed to “sort out how we make sure we have a solid definition of human rights upon which to tell all our diplomats around the world.”   This it will do by focusing on the “nation’s founding principles, on natural law and natural rights”. 

Why did Pompeo choose unalienable, and not the contemporary, commonly used inalienable in referring to rights?  While the two are considered synonymous, the Founding Fathers themselves debated the terms (captured with a twist of genteel college rivalry in the film version of 1776 : Adams insisted on un—; Jefferson corrected him with in—).  The rough draft of the Declaration of Independence included in; the final parchment written in Adams’ hand had un—; other versions written in Jefferson’s hand included in—.  Not surprisingly, both appear in printed versions.  Politicians and other rhetoricians use unalienable, but almost exclusively in quoting or referring to the Declaration of Independence.  Otherwise, inalienable is common usage.  A clever “ngram” on the website grammarist.com shows unalienable’s use reached its zenith in 1784; overtaken in 1833  by inalienable, which has remained the preferred use to the present day.

What’s more, inalienable is the language of international human rights law. 

The choice of unalienable, thus, is consistent with Pompeo’s desire to refocus the rights discourse with the late eighteenth century notions of rights. It is not just that unalienable is anachronistic; its use is intended to call into question the legality of an entire body of international law, painstakingly negotiated by the international community, with the participation of the United States. 

Synonyms or not, there is an insidious aspect of Pompeo’s word choice that is characteristic of this administration.  In his novel, Nineteen Eighty-Four, George Orwell made (in)famous the importance of language and thought in relation to the public’s acceptance of state control.  The Orwellian term “doublethink” is not only familiar to us, it characterizes the manner in which the Trump administration governs. Doublethink means “the power of holding two contradictory beliefs in one's mind simultaneously, and accepting both of them.”  Totalitarian regimes manipulate the truth, and make people say things they know to be untrue, until they are complicit in the doublethink and lose track of truth.

The Trump administration has refined the art of doublethink; just consider “alternative facts” or “the media is the enemy of the people”.  The media regularly uses the term gaslighting – a manner of applying doublethink by manipulating a person (or a society) into doubting the evidence of their own senses with constant, subtle denials of the truth. How is it that the president of the United States has gotten away with over 10,000 lies or distortions since taking office?  Dissembled truth hangs around like a shadow until people forget what was criticized or challenged, and it seems as if the obscurity has always been the truth.  That is his objective. 

At least Pompeo’s choice of terminology calls attention to his motive and objective:  to weaken or disregard the corpus of human rights law negotiated, codified, ratified, elucidated, implemented over decades by the international community.  To distract the American people from these concrete legal obligations.  Natural law refers to a narrow set of civil and political rights unhinged from the social and economic rights that constitute half the corpus.  It is another example of the doctrine of American exceptionalism; that the U.S. need not abide by international treaties and obligations  Among its chartered duties, the CUR will guide U.S. diplomats and foreign policy decisions and actions with respect to human rights in international settings. The choice of unalienable resurrects natural law when only white, Anglo-Saxon men with property and/or other wealth had rights.  It relegates LGBTQ persons, people of color, non-Christians, immigrants, the poor, women, once again invisible, and worse – it has the capacity and even the intention to render them unpersons

Language is hardly innocuous. Will middle America recognize the import of unalienable rights?  Pompeo expects not; and perhaps he and the CURists don’t care.  This is an initiative that has far less to do with rights than to Make America Exceptional Again.  As we consider the nefariousness of the initiative, we might note the definition of a cur.

https://lawprofessors.typepad.com/human_rights/2019/07/unalienable-explained-the-meaning-of-the-state-departments-new-commission.html

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