Legislating Human Rights: The Case for Federal Legislation to Facilitate Domestic Judicial Application of International Human Rights Treaties

In scholarly discourse about rights, it is often assumed that democracy is bad for rights. Rights protect individuals. Democratically enacted laws reflect the will of the majority. The “tyranny of the majority,” as John Stuart Mill warned long ago, threatens the rights of individuals. It is not necessarily so. There are important examples in recent US history where majoritarian democracy produced legislation strengthening protection for individual rights. The Civil Rights Act of 1964, the Voting Rights Act of 1965,the Americans with Disabilities Act of 1990, and the Religious Freedom Restoration Act of 1993 are just a few examples of rights-enhancing federal legislation supported by broad-based democratic majorities.Of course, in the past two decades Congress also enacted important legislation, such as the Antiterrorism and Effective Death Penalty Act of 1996 and the Prison Litigation Reform Act of 1995, that restricted protection of individual rights. Even so, this Article contends that: (1) the time is ripe for federal legislation to facilitate domestic judicial application of international human rights treaty obligations; and (2) such legislation would yield substantial domestic and foreign policy benefits for the United States. The first claim may seem shocking, even preposterous. In the 2010 elections, Republicans scored one of the biggest electoral landslides in the past century. Moreover, Republican lawmakers are generally hostile to the domestic judicial application of international human rights law, as evidenced by recent legislative efforts at both the state and federallevel to bar judicial reliance on international law to resolve domestic controversies