Professor David Sloss has recently published his article Universal Human Rights and Constitutional Change, 27 William & Mary Bill of Rights Journal 1183 (2019) (with Wayne Sandholtz). Here is a short excerpt from the Introduction:
This Article marries international human rights and comparative constitutional scholarship with scholarship about constitutional change in the United States. It suggests that American constitutional scholars can gain a richer understanding of the dynamics of constitutional change by drawing on insights from international and comparative research. Conventional wisdom depicts the United States as insulated from transnational forces that led to the global diffusion of human rights norms. We contend that the conventional wisdom is wrong. Specifically, this Article suggests that three distinct phenomena are closely related: the creation of modern international human rights law (the “internationalization” of human rights); the incorporation of human rights norms into national constitutions in numerous countries (the “constitutionalization” of human rights); and the transfer of regulatory authority over human rights from the states to the federal government in the United States (the “federalization” of human rights).
The underlying theory is simple: The power of ideas is an important factor that contributes to legal change, and ideas do not respect national boundaries. The period from 1948 to 1976 witnessed a global diffusion of an identifiable set of ideas, which we call the “political morality of human rights.” The global diffusion of the political morality of human rights was an important causal factor that contributed to the internationalization of human rights, the constitutionalization of human rights, and the federalization of human rights in the United States. The leading scholarly accounts of the civil rights revolution in the United States offer many important insights about the dynamics of constitutional change. However, they are incomplete insofar as they fail to account for the global diffusion of human rights norms as an important factor contributing to constitutional change in the United States. To be clear, we do not claim that international human rights law—as law—caused constitutional changes in the United States. Instead, we contend that the diffusion of human rights norms as a global political morality was an important causal factor that contributed to the federalization of human rights in the United States. Moreover, the process of federalization significantly strengthened domestic legal protection for fundamental rights in the United States.