In this chapter and in chapter 4, we trace the influence of American ideals and solutions abroad, in an attempt to find out how they have been understood and applied. To blunt some opposition to looking abroad, we will focus on values with clear American roots, and follow them in American hands to the international stage. Chapter 4 examines the implications courts abroad found in those American values. This argument will not satisfy Justices Scalia or Thomas but it should inform reasonable minds.
World War II affected everyone in the United States who was serving in the military, producing for the war effort, supporting the troops, or making do with rationed foodstuffs and products made from the iron, steel, rubber, and other components needed for the military. Democracy needed to be defended territorially against foreign enemies and against sabotage and revolution at home. War pushed the United States toward unity, repression, control, and both tolerance and prejudice.
Squelching freedom and murdering millions, Hitler and Stalin dramatically altered what it meant to protect democracy. Injustice abroad led to a redefinition of what it meant to be democratic. Strong currents in U.S. law rejected the German model and protected human rights, equality, and democracy. In the 1940s and well into the 1980s, the Supreme Court expanded freedom, protected the people, and shaped a vision of a more perfect democracy. Germany turned “law” into a route to the gallows but the Supreme Court rejected the “third degree,” then the main technique for criminal investigation across the world, and insisted on careful criminal procedures.1 The Court connected prejudice and the powerlessness of young black men with the likelihood of unjust convictions. Members of the Court understood that criminal justice, equal rights, and democracy depend on each other. In a wide variety of cases the Court made the protection of human rights fundamental to American democracy, and largely led global development of humanitarian law, to great worldwide admiration.
While the Nazis persecuted Jews, the U.S. Supreme Court developed the protections of the First Amendment religion clauses; but not at first. In 1935 Lillian and William Gobitis, aged twelve and ten, were expelled from the Minersville, Pennsylvania, public schools for refusing to salute the flag.2 To the children, who were Jehovah’s Witnesses, saluting the flag violated the biblical injunction against idolatry. In 1940 Frankfurter wrote for seven justices in Minersville School Dist. v. Gobitis, that the legislature should decide what “program or exercise will best promote in the minds of children who attend the common schools an attachment to the institutions of their country,” that is, lead them to be patriotic. National unity justified coercion. He argued their decision complied with the teaching of Carolene Products because members of the Jehovah’s Witnesses could try to change school rules politically.
Justice Harlan Fiske Stone wrote years before, “all human experience teaches us that a moral issue cannot be suppressed or settled by making its supporters martyrs.”3 Dissenting now, Stone touched on the threat of war: “Government . . . may compel citizens to give military service . . . and subject them to military training despite their religious objections. . . . It may suppress religious practices dangerous to morals, and presumably those also which are inimical to public safety, health and good order.” But: “The very essence of . . . [constitutionally protected] liberty . . . is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion.” Gobitis generated criticism along with violence directed at Jehovah’s Witnesses. West Virginia then required the flag salute. Officials expelled children who were Jehovah’s Witnesses and threatened to confine them in reformatories for “criminally inclined juveniles” and to prosecute their parents for causing delinquency.4 By then the United States was at war with Nazi Germany, which had already overrun most of Europe. Religious intolerance would no longer find a home in the Court .
West Virginia State Bd. of Ed. v. Barnette,5 overruled Gobitis. Justice Jackson explained why, in language that has become an icon of First Amendment jurisprudence: in America “no official . . . can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”6 Speech could not be coerced for unity.
Both unity and religious tolerance led to the wall of separation between church and state. Everson v. Board, decided in 1947, addressed state-provided nondiscriminatory free school bus service to public, private, and religious schools. The Court connected the Establishment Clause to the history of religious strife, explaining that religious war, persecutions, torture, and murder had been going on for centuries before and during the colonization of America. Punishments were inflicted for speaking disrespectfully, nonattendance at church, expressions of disbelief in church doctrine, and failure to pay taxes or tithes to support them.7 Given that history, the Court held the First Amendment required a wall between church and state, separating governmental from religious functions. While strongly endorsing separation, the Court pointed out that nondiscriminatory provision of nonreligious, public services like busing, do not breach the wall.8
A year later, in McCollum v. Board,9 the Court applied Everson to reject a multifaith arrangement for separate religious classes in public schools during the school day to children with parental consent. The First Amendment prohibited funds for religious education itself.10 The Court’s decision was crucial for the common school movement. If nondiscriminatory policies alone satisfied the First Amendment, state support for religiously segregated education would have been constitutional. Instead, public funds supported unified education in community schools.
The Court’s most spectacular wartime failure was in sustaining convictions under the Japanese exclusion orders.11 Fear and prejudice contributed to the internment of Japanese Americans—imprisoning them in camps or housing them in horse stables or similar accommodations for the duration of the war—without charges, hearings, or the ability to secure their businesses or goods and effects. Most had to start over after the war. Documents have since been uncovered showing that the government lied to the Court, concealing evidence showing no military need for rounding up and incarcerating 120,000 Japanese Americans from the Pacific states.12 Decades later Congress appropriated funds as compensation, though they were meager. The decisions are now remembered as a shameful error on the way toward the systematic rejection of Nazi racism.
Nazi beliefs about genetics labeled Jews, Gypsies, homosexuals, and others as “unfit,” except for slaughter or medical experiments in concentration camps, testing the effects of torture and weapons on prisoners. German doctors injured, infected, and operated without anesthetics to test so-called cures. They tried to alter people physically, or change the orientation of homosexuals.
Nazi atrocities ended American infatuation with eugenics, sterilizing, or executing the “unfit.” In 1942, the Court used a sterilization case, Skinner v. Oklahoma, to reinstate protection for fundamental rights under the due process clause. Skinner overturned an Oklahoma law, which required sterilization of some prisoners who had been convicted three times. After expressing disapproval of distinctions in the Oklahoma law, the Court addressed the significance of the sterilization remedy. Its language fairly smoked with disgust at Nazi forays into biological “purity”: “We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear.”13 Germany flaunted a theory of racial superiority, and snubbed Jesse Owens, the African-American who won gold at the 1936 Olympics in Berlin. The Supreme Court soon handed down groundbreaking civil rights cases addressing intolerance and inequality. African Americans had been barred from voting in southern primary elections. The Court attacked racially exclusive primaries in the so-called white primary cases, beginning in the 1920s,14 although stagnating in the 1930s.15 Before the war ended, the Court denied that a state could merely repeal its discriminatory statute and let political parties do as they pleased; states bore responsibility to provide actual equal access to the voting booth.16
Shelley v. Kraemer held courts could not constitutionally enforce racially restrictive real estate covenants.17 Without court action, private contracts may be unenforceable. Attorneys recognized immediately that private individuals can often do what government officials, including judges, cannot. Judicial enforcement of such decisions would not violate the Constitution. An additional premise beside court action must determine which private actions or agreements could be enforced. This is known to lawyers as the “state action” issue, and a satisfactory distinction has eluded the courts. Nevertheless, no court has suggested that racial covenants, or racially restricted primaries, are ever going to be enforced.
Another series of decisions between 1938 and 1950 held that African Americans could not be segregated in state institutions of higher education because the education offered was not equal. Inequalities that mattered included school reputation, faculty quality, and the ability to get to know other future local practitioners of one’s profession.18 Those decisions demonstrated that separate could not be equal, although it still took courage in 1954 for the Warren Court to announce the logical conclusion in Brown that segregation is “inherently unequal.”19
Apportionment of seats in the Illinois legislature had not changed since 1901, although the proportion of people living in cities had changed drastically. That affected all urbanites—immigrants who had flocked to cities, blacks who had come north, and workers in big urban factories; all of whom were represented in much lower proportions than farmers and rural residents. Similar malapportionment affected legislatures all over the country. Despite the importance of the vote to democratic government, and the Court’s other efforts to update its treatment of democracy, the justices would not budge on malapportionment. Justice Frankfurter described it as a “political thicket” inappropriate for courts.20
The Court had resurrected the equal protection clause, protecting equality in graduate schools, housing and most pertinently in primary elections. It had made clear that African Americans had the same right to vote as whites, but, apparently, they had no right to have their votes counted equally with people in other districts. Logic is one of the drivers of the law and this was contradictory. The Court would follow the logic of what it had already done. But democracy would continue to elude those who remained underrepresented for nearly two more decades.
The Supreme Court also delayed making the Bill of Rights applicable to the states. That issue was raised in Adamson v. California, which reached the Court in 1947.21 On the basis of the historical work of Horace Edgar Flack,22 Justice Black explained how the Thirty-Ninth Congress incorporated the Bill of Rights in the “privileges or immunities” clause of the Fourteenth Amendment, thereby requiring the states to live up to national standards.23 The Court rejected Justice Black’s argument.24 Led by Frankfurter, the Court would only apply the Bill of Rights if it were essential to ordered liberty, the test designed in Palko. Although Justice Black lost the historical argument, beginning a decade after Adamson, the Court incorporated the vast majority of provisions of the Bill of Rights within the prohibitions of the Fourteenth Amendment.25
International legal developments, like developments in the United States, moved in opposition to the Nazi experience. The Nuremberg Trials, the formation of the United Nations, and the preparation of the Universal Declaration of Human Rights were all aimed to assure that Nazi totalitarianism would never happen again and that no other power would inflict such damage on the world. Rather than reluctant guests at an American party, countries that had joined the Allied powers were enthusiastic participants.
Treasury Secretary Henry M. Morgenthau Jr., a confidant of President Roosevelt, returned from Europe seeking retribution. U.S. government lawyers wanted formal trials that would demonstrate Nazi transgressions unequivocally. They questioned, however, whether Nazis could legally be tried for crimes that hadn’t previously been defined by international or other relevant law, and struggled to construct charges that would pass those strict standards, in order to establish the legitimacy of the proceedings. Barely a month before the German surrender and before their plans could be readied for the president’s approval, Roosevelt died. The lawyers would have to take their concerns to President Harry S. Truman and respond to the flood of moral concerns that came with the end of the war.
In the 1940s, movie houses showed Movietone and Pathé News clips between double features. They were my first images of the concentration camps. GIs from all races, creeds, and parts of the country liberated survivors at Auschwitz, Dachau, Bergen-Belsen and other camps. Newsreels showed piles of stiff, naked bodies. Those who survived were so emaciated they looked more like the walking dead. America and much of the world were outraged. Nazi racism spared few minorities. They were particularly venomous toward Jews, but gays, Gypsies, dissidents, and so-called non-Aryans as well felt the brunt of their murderous rampage throughout central and Eastern Europe. The Soviets, having sustained huge losses fighting the Nazis, were determined to see them punished. The Allies shaped the Four Power London Charter out of which came the Nuremberg Principles, to be applied at the Nuremberg Trials of Nazi war criminals from 1945–46, later codified by the International Law Commission of the United Nations in 1950. The principles were limited to crimes with a connection to peace or war, “war crimes,” and “crimes against humanity.” War crimes included “murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population . . . [and] murder or ill-treatment of prisoners of war . . . killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.” Crimes against humanity included “[m]urder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds . . . in execution of or in connexion with any crime against peace or any war crime.” Both provisions included specifics alongside the generic “ill-treatment” and “inhuman acts.”
Nazi depravity temporarily united the United Nations, from its founding in 1945 and across the emerging Iron Curtain, to prevent a Nazi or similar regime from rising from the ashes of the Third Reich. Hitler and the Nazis, along with Stalin and the Soviets, had been responsible, directly or indirectly, for the death of some sixty million people. Nazi slaughter accounted for some two-thirds of the Jewish population of prewar Europe. The entire world was affected by the war and German and Russian war crimes. Germany had occupied almost all of continental Europe, from France through much of European Russia. Troops throughout the world suffered casualties. Delegates shared the hope that this new international organization and its work could help to prevent the reemergence of such a regime.
The UN Universal Declaration of Human Rights (UDHR) reflects the world’s reaction to Nazism and determination to prevent its repetition. It took two years, two General Assembly sessions, and many commissions and committees to translate revulsion into the Declaration. Eleanor Roosevelt chaired the seventeen-member UN Commission on Human Rights, with representatives from every continent, all major religious blocks, and countries at various stages of development. UN staff provided a report relating draft sections to provisions of then existing national constitutions. The UDHR would be tied to both preexisting and subsequently enacted constitutional language of member states.
The delegates were quite familiar with Nazi brutality. One high official described Nazism as “applied biology,” referring to the Nazi’s differentiation between the “master race” and “useless eaters”—the old, infirm, and terminally ill in nursing homes, asylums, and hospitals who were starved or executed along with despised minorities, and those who opposed or showed little attachment to the regime. Brutality toward non-Aryans extended to labor and sex slavery. And Nazi differentiation between German Aryans and everyone else brought delegates from the rest of the world together. Virtually every clause in the document reflected those reactions. It was drafted in the hope that specifications of liberties and protections for human rights would help sustain free and democratic government and block the brutality of tyrants.
Nazis thoroughly perverted law. Crimes were vaguely stated; guilt often depended on the courts’ and prosecutors’ whims.26 Delegates, by contrast, were determined to ban so-called ex post facto laws, which punished actions that were legal at the time they were taken. Delegates also wanted to eradicate evils addressed by the war crimes trials in Nuremberg and Japan. However, it was not clear whether prior law incorporated the Nuremberg principles. The Nuremberg principles state fundamental rules whose violation was inherently wrong, a concept that is known to lawyers as malum in se, that also means that everyone, Nazis included, should have understood the wrongfulness of such acts. But that justification of the Nuremberg rules would be controversial. To protect both the trials and the ex post facto prohibition, the delegates stated fundamental rights which predated the UDHR in the law of some countries, if not all, put a form of ex post facto clause in Article 11, and condemned acts or omissions which were illegal “under national or international law”—a compromise that arguably but ambiguously incorporated the Nuremberg principles. They also drove home requirements of fairness and procedural regularity in Articles 9–11, prohibiting “arbitrary arrest, detention or exile” and requiring “a fair and public hearing by an independent and impartial tribunal” and “all the guarantees necessary for his defence.”
American courts had long gone further than the UDHR in finding unwritten fundamental rights,27 later grounded on the Fourteenth Amendment. Although that became controversial by the early twentieth century, three areas of unwritten or at least inexplicit fundamental rights remain constitutionally protected: the rights to travel, privacy, and vote. Delegates were wary of the American approach. Instead of privacy, they addressed marriage and procreation by requiring gender equality and consent. Muslim delegates objected; Saudi Arabia abstained.
In the UDHR, equality is a moral imperative underlying the entire document. Twenty-eight of the thirty articles begin with “all,” “everyone,” or “no one.” Article 30, applies to “any State, group or person.” Article 16, about marriage, uses “men and women,” “the intending spouses,” and “the family” as implicitly universal. In doing so, the UDHR explicitly entitles everyone to all the rights outlined. The Declaration also asserts “[a]ll are equal before the law,” proscribes discrimination, and requires “equal protection of the law.”28
The Nazis treated non-Aryans as “legally dead,” without rights or claim to their goods, contracts, jobs, or persons. That led to Article 6, which protects the right to be recognized “as a person before the law.” “Code” countries, whose laws were loosely based on a Roman code, once recognized “civil death,” but it had largely disappeared.29 In reaction to Nazi practices, the UDHR made it clear that one’s personhood could not be denied or abolished.
Other Nazi abuses are similarly condemned in language adjusted to incorporate new and different experience. Slavery, servitude, and the slave trade are prohibited “in all their forms.”30 “Cruel, inhuman, or degrading treatment” are prohibited whether common or unusual.31 “Arbitrary interference with [one’s] privacy, family, home, or correspondence” are prohibited but the Declaration adds “honor and reputation,” which receive no constitutional protection here.32 Protection for “freedom of movement” is analogous to our right to travel,33 and the UDHR explicitly protects property.34 Protections for asylum, and “nationality” respond to Nazi dislocation.35 Article 18 protects freedom of religion, without addressing religious establishment, but protects the right, in public or private, “to manifest one’s religion . . . by teaching, practice, worship, and observance,” thereby limiting what established religions can require. The right to change one’s faith, controversial because of views expressed by Muslim representatives, was included by majority vote as a part of religious freedom.
American wartime propaganda stressed the “four freedoms,” including freedom from want. The Constitution, however, is silent on welfare rights. State constitutions have incorporated welfare rights, beginning with a right to education. During the Great Depression, states took responsibility for the needy. During the war, caring for the needy became a war aim, contrasting with Nazi efforts to eliminate the frail and vulnerable. The UDHR made caring for the needy obligatory. It adopted neither a socialist version of collective responsibility, nor a free market stance that left welfare entirely to individuals. The UDHR protected rights to education and to work—including the rights to choose where to work for a fair wage with reasonable hours, holidays, and vacations, as well as the right to organize and to protect those rights—and it made the state responsible to assist where those necessities were otherwise out of reach.36
Thus the UDHR went beyond the U.S. Constitution, although without tying political rights or the democratic form of government to any degree of economic equality.
Soviet definitions of democracy made the word nearly unusable in the UDHR. Nevertheless the Soviet delegates agreed that people are entitled to self-government. By World War II, the general rule had become universal adult suffrage, although still racially limited in the United States. The UDHR stated explicitly: “Everyone has the right to take part in the government of his country” and “elections . . . shall be by universal and equal suffrage and . . . by secret ballot.”37 Each of the articles dealing with self-government begins with the pronoun everyone.
When the UDHR was adopted in 1948, separate but equal was still the general obligation under the equal protection clause as defined by the U.S. Supreme Court. But the Court continued to make progress against racial exclusion in southern primaries,38 home ownership,39 and education.40 By clarifying the contradiction between separation and equality, it continued undermining Plessy v. Ferguson.
Delegates disagreed whether enemies of democracy were entitled to advocate their ideas. Russians questioned whether Nazis had speech rights. Some, including the Soviet Union, did not accept electoral competition. Nevertheless, the UDHR protected democratic rights by which voters choose—whether as an individual right to make up one’s own mind, the people’s collective right to self-government, or aspects of electoral competition which had somewhat different implications in the delegates’ minds. It also protected freedom of expression and information,41 freedom of association and assembly,42 and access to public office43 as well as against some hate speech,44 as did many postwar constitutions, particularly in deeply divided countries like India. Overall, despite Russian objections to some democratic language, the UDHR condemns devices that entrench power and deny popular control. Two principles underlie the structure of the self-government provisions, universal inclusion in the governing electorate and political competition.
The word democratic appears only in Article 29, which prohibits restricting rights except to “secur[e] . . . the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” Similar language has been incorporated in the constitutions of Germany, Canada, Greece, Japan, South Africa, Sweden, and Turkey.
Finally, Article 8—protecting “the right to an effective remedy” for violating fundamental rights—is unique. Rights without remedies are mere prayers. The UDHR insists on the reality. The UDHR and the principles it adopted remain part of international law.
By the late 1940s, law reflected global moral revulsion to the Nazi war crimes. The legal standards established in Washington, DC, and in Nuremberg, and the UDHR developed by the UN Commission on Human Rights and adopted by the United Nations—then meeting in Lake Success, New York—would have a long reach.
The UDHR mirrored the founders’ emphasis on dispersion of power, education of the entire population, and hostility to monopoly. Noteworthy examples of economically egalitarian thinking in the United States include the war and excess profits taxes, which treated war as a common obligation and not as a business opportunity.45
Scientists began studying the relationship of democracy to the melting pot in World War II. Black regiments served in World War II; many distinguished themselves with courage and skill. By the end of the war, black soldiers served in white regiments to meet shortages of available manpower.46 The military deliberately mixed white soldiers regardless of the language they spoke, where they came from, or where they prayed. For the War Department, Samuel Stouffer polled soldiers during the war to discover the war’s impact on the men, including attitudes toward men of different racial and religious backgrounds with whom they served. Through his tears, my father-in-law described witnessing a race war among American troops in France when a white soldier killed a black soldier crossing the white’s ship even though the black soldier was acting under orders. Within moments soldiers of both races were shooting each other across the dock. Stouffer found incidents like that did not define what most of the troops brought home in their hearts.47 Truman famously integrated both black and white troops during the war in Korea. By 1951, both black and white troops in integrated units expected race relations to improve while whites in segregated units did not.48 Serving together changed the attitudes of many soldiers for the better.
The domestic moral universe was also changing. Baseball broke the color bar seven years before Brown, although it was not an easy victory. Jackie Robinson endured vicious racial attacks and took seriously his role as African American spokesman on political and racial issues.
Waves of refugees from Southern and Eastern Europe reinforced some prejudices. Severe quotas, from the 1920s through the 1950s, favored Northern European immigrants and virtually excluded Asians. Blacks, referring to the depth of racism, often remarked “they won’t even let Jews in.” In the 1950s, the Forest Hills Tennis Club, host of the national tennis tournament, refused membership to Victor Seixas, the Jewish 1950 national singles champion, despite roots in seventeenth-century New York. Sport and private clubs continued to bar blacks and women, including those who dominated their fields.
Nevertheless, America was becoming more open. More Americans of all races and backgrounds went to college. Colleges relaxed their Jewish quotas. Many northern colleges accepted both black and white students, and well-respected and established Negro colleges and medical schools continued to provide opportunities. Women’s education gradually extended beyond teaching and nursing. The Servicemen’s Readjustment Act of 1944, informally known as the GI Bill, vastly increased the mobility, education, and productivity of American workers.49 These new paths to college gave many the chance to improve their social status after World War II, leading to middle-class, sometimes distinguished, lives, and a much broader distribution of income in America.50
However, while blacks moved to northern cities after World War II, the Federal Highway Administration built roads that opened the suburbs. The Federal Housing Administration then guaranteed mortgages for whites but not blacks, and discouraged banks from lending to blacks living in the suburbs and in the cities.51 Whites but not blacks could realize the American dream of a house in the country, making the suburbs white.
Meanwhile the Truman and subsequent administrations managed “slum clearance”; blacks just called it “Negro clearance.” Poor and black areas looked dilapidated to whites, who tore them down. Black businesses were cut off from their customers. Under eminent domain rules, businesses received no compensation for the loss of loyal customers—the backbone of the sales value of any retail business. Forced out, they had to start over. Black America went down two divergent tracks—college-educated blacks became the new black middle class. Once factories moved to the suburbs, working-class blacks were headed for oblivion. The consequences of that side-by-side integration and segregation were powerful, driving American politics to decades of new extremes.
In 1945, those consequences were well in the future. Veterans changed America immediately. Before the war, local officials regularly used bribes and threats, zoning variances, tax assessments, and other government benefits and burdens for political gains or favoritism.52 Soldiers coming back from World War II had less taste for dirty politics and the courage to resist, and the GI Bill proved to be a more powerful tool to a better life.53 Politicians needed new ways to hold on to power.
The economic changes in this period influenced the quality of American politics and American democracy changed radically.
Mid-century constitutions embody contemporary views of democratic government while pulling people out of the depression, war, colonial and Nazi racism, and abuse, and building on the UDHR, the Nuremberg principles, and the Four Freedoms.
Constitutions historically specified the distribution of governmental powers, and protected human rights. The twentieth century added economic concerns, although with eighteenth-century origins. The French Constitution of 1791 provided for public aid for abandoned children, the infirm poor, and “to furnish work to the sturdy poor who have not been able to procure it.”54 The French Constitution of 1793 proclaimed: “Public assistance is a sacred duty. Society owes subsistence to unfortunate citizens, either by procuring them work, or by ensuring those who are unable to work the means of existence.”55
By World War I, prolabor ideology had gained strength in much of Europe, partly in reaction to the Russian Revolution. The 1919 Weimar Constitution of Germany shows dual capitalist and communist influences, promising combined employer-labor management on “collectivist principles,” a labor code, the right to organize for better wages and working conditions, and forms of labor and management negotiation and cooperation.56 It also provided individual, family, child, and education rights, building on nineteenth-century traditions.57
Social welfare provisions abroad invite comparison to the long-held American belief that dispersion of wealth was important to protect democracy as well as to twentieth-century developments in the United States that culminated both in domestic policy and the Four Freedoms. Social welfare provisions in foreign constitutions also provide a basis for exploring in chapter 4 how courts have interpreted that language and how their interpretations relate to democracy.
In Ireland, the Great Depression led lawmakers to include in the Irish constitution a statement of “principles of social policy . . . intended for the general guidance of the . . . [the legislature which] shall not be cognisable by any Court.”58 The principles sought “a social order in which justice and charity shall inform all the institutions of the national life,” including “an adequate means of livelihood” for “men and women equally . . . through their occupations.” The Directive Principles subordinated unrestrained capitalism to distributive justice “to subserve the common good,” via competition but not monopoly, and via management of credit for “the welfare of the people as a whole,” all to the end of “economic security.” The state should supplement “private initiative” for “efficiency . . . and . . . to protect the public against unjust exploitation.” Ireland pledged “to safeguard with especial care the economic interests of the weaker sections of the community, and, where necessary, to contribute to the support of the infirm, the widow, the orphan, and the aged” and to protect workers and children from abuse, being “forced by economic necessity to enter avocations unsuited to their sex, age, or strength.” The manner and extent of implementation were left to the legislature. Ireland would not be alone.
American state constitutions require public schools.59 Relief for the poor is traditional in the United States but not generally incorporated in constitutional language.60 New York’s 1939 Constitution required the legislature to provide for the needy. Although it lacked the Irish language barring court implementation, the clause directed legislative action and, like the requirement of a school system, lacked specifics—the legislature had to decide what it could and should do—implying that it was primarily for legislative consideration. Seventeen other states have similar welfare language.61
Japan’s Meiji Constitution of 1889 created a legislature and protected rights to relocate, to criminal trials, and regarding entry, searches, property, religion, speech, association, and petition.62 All were limited as provided by law, paralleling the Magna Carta’s restriction of the executive to the legislatively approved “law of the land.” Japan in the 1920s had a vibrant political culture based on universal manhood suffrage.63
Japan’s 1946 Constitution was jointly designed by General McArthur’s team and Japanese leaders. Japan used the British model for parliamentary government, with judicial review but judges approved by voters decennially.64 It reduced the emperor to ceremonial powers under the Cabinet or the Diet.65 Article 9 renounced war, aggression, and military forces capable of war. With a catalogue of rights that are generally linked to democracy, their bill of rights makes “fundamental human rights . . . irrevocable and inviolable,” including equal, political, criminal, judicial, expressive, and religious freedoms.66 Article 15 defines elements of popular control over government, including the people’s right to choose and dismiss public officials, universal adult suffrage, a secret ballot, voter independence, and the obligation of “[a]ll public officials . . . [to] the whole community and not of any group thereof.”67
Notable provisions addressed workers’ rights,68 matrimonial equality,69 the right to an education, and a ban on child labor.70 Property rights are protected as “defined by law, in conformity with the public welfare.”71
Article 25, “Welfare Rights,” had European sources and Japanese support to protect “the right to maintain the minimum standards of wholesome and cultured living,” and obligates “the State . . . [to] promotion and extension of social welfare and security, and of public health.”72 Like the clauses in the Irish and New York constitutions, Article 25 set important objectives for legislative and administrative implementation.73
Italy’s 1948 Constitution gave government the responsibility “to remove all obstacles of an economic and social nature which . . . [limit] the freedom and equality of citizens, prevent the full development of the individual and the participation of all workers in the political, economic, and social organization of the country.”74 It “recognizes” a right to work and governmental responsibility to “[promote] those conditions which render this right effective,”75 to “[safeguard] health as a fundamental right of the individual . . . and [guarantee] free medical care to the indigent,”76 a living wage,77 and social insurance or public assistance “in case of accident, illness, disability, old age, and involuntary unemployment.”78 By “recognizing” obligations, the Constitution may be merely wishful, but Italy did not adopt the Irish Constitution’s specific bar to judicial action and used much more specific language.
Germany similarly protected popular sovereignty, personal rights, and economic position. As the Allies took control, the United States required that Germany be democratic and federal, defining the essentials of democratic government as competition, popular control, and civil liberties.
In April 1945, the Joint Chiefs of Staff ordered the military governor “to promote the development in Germany of institutions of popular self-government” and federalism. They told the military governor:
Your Government does not wish to impose its own historically developed forms of democracy and social organization on Germany and believes equally firmly that no other external forms should be imposed. It seeks the establishment in Germany of a political organization which is derived from the people and subject to their control, which operates in accordance with democratic electoral procedures, and which is dedicated to uphold both the basic civil and human rights of the individual.79
The Joint Chiefs, obviously determined to avoid regeneration of German military power, repeatedly stressed their opposition “to an excessively centralized government,” insisting that a central authority have only “carefully defined and limited powers.”
In 1945 at Potsdam, President Truman, Soviet Premier Stalin, and British Prime Minister Clement Attlee agreed to decentralize Germany in a democratic state with competitive political parties, representative and elective principles, and freedom of speech, press, religion, and, subject to military security, trade unions.80
In Moscow two years later, U.S. Secretary of State George Marshall stated that a properly democratic German state meant popular sovereignty, frequent popular elections with freely competing, voluntary parties treated equally, together with the kinds of political rights reflected in our First Amendment and “other equally basic rights of man,” including “equality under the law” and protection from arbitrary criminal processes.81
Similar ideas were already present in the 1919 Weimar Constitution, except that it had a strong executive with emergency powers.82 The constitutions of the individual Länder, or German states, which were drafted by Germans with minimal interference before the Grundgesetz, or Basic Law, of the Federal Republic of Germany, also make clear that Allied notions of democracy were quite compatible with native German ones.83 They stressed democracy, liberty in the Kantian tradition, and fraternity in the Rousseauean tradition of mutual dependence and support. The Bavarian constitution stressed both liberty and fraternity: “Schools shall not merely convey knowledge and ability, but shall also develop sympathetic hearts and character. The highest objectives of education are reverence for God, respect for religious convictions and human dignity, self-control, a keen sense for and ready acceptance of responsibility, a willingness to help others, and receptiveness for all that is true, good, and beautiful.”84
The Hessian constitution announced, “Concepts which endanger the foundations of the democratic state must not be tolerated” in the schools, and “The teaching of history must be directed towards a true, unvarnished presentation of the past. Special attention is to be paid to the great benefactors of mankind, to the development of the State, economics, civilization, and culture, rather than to warlords, wars, and battles.” Both mutual responsibility and individual rights are protected by the “right to make an adequate living by means of his [sic] labor” and the “right to adequate housing.”85
All Länder constitutions “allow for state planning and some socialization, especially of utilities and transportation, and provide for land reform.”86 They explicitly rejected Nazism and militarism, but denied protection to those tried or disfranchised under the denazification and demilitarization laws.87 They entrenched democracy in clauses barring constitutional amendments that would change the basic democratic character of the governments.88
The Länder followed the earlier Weimar Constitution in providing emergency powers89 but barred the legislatures from delegating powers, in reaction to Hitler’s misuse of that opportunity.90
Germany’s 1949 postwar constitution, called the Basic Law, shows the influence of the Weimar Constitution and incorporates some of its language, rather than the language or structure of the American Constitution.91 It declares, “The Federal Republic of Germany is a democratic and social federal state.”92 All three—democracy, social welfare, and federalism—had roots in German history.
The Basic Law elaborates on Germany’s self-definition as a “democratic . . . state,” with popular sovereignty: “All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive, and judicial bodies.”93 Popular sovereignty organizes the Bundestag, the lower house of the German legislature, which “shall be elected in general, direct, free, equal, and secret elections.” The sovereign public includes the entire population: “Anyone who has attained the age of twenty-one years is entitled to vote,” a provision that later was changed to eighteen.94 Furthermore: “In county and municipal elections, persons who possess citizenship in any member state of the European Community are also eligible to vote.” The constitution apportions power by popular strength,95 although it leaves the details of elections to legislation by the Bundestag, subject to the requirement of equality. The Bundesrat represents the Länder, but the number of seats is weighted by population.96
The Basic Law protects the political rights of competition and expression,97 specifically including unions and parties.98 Elections are held periodically—the Bundestag serves no longer than four years.99 The president and the chancellor are selected by the legislature.100
Like the European Convention on Human Rights and the constitutions of Canada and South Africa, the German Basic Law explicitly incorporates the concept of democracy in mandatory language in several provisions and thereby clearly puts it before the courts for interpretation. To protect German democracy from Nazism, the Basic Law declares parties unconstitutional that “seek to undermine or abolish the free democratic basic order” or threaten “the existence of the” country.101 Restrictions on constitutional protections are only permissible “to protect the free democratic basic order,” Federation or Länder security.102 Protections of “the free democratic order” run through the Basic Law, requiring the courts to protect democracy.103 Conversely, using rights “to combat the free democratic basic order . . . forfeit[s]” them.104 The courts must protect “the essence of a basic right.”105
The Four Freedoms and welfare state traditions reappear protecting economic justice and welfare, including a mothers’ right “to the protection and care of the community,” protection of “illegitimate” children, “the right freely to choose . . . [one’s] occupation or profession . . . place[s] of work and . . . training,” and the right to form unions.106 Public schools are provided along with the right to found and operate private ones.107 Property rights are restricted: “Property entails obligations. Its use shall also serve the public good.”108 The public may own “land, natural resources, and means of production,” conditioned only on just compensation to prior owners.109
Länder constitutions must follow “principles of a republican, democratic, and social state governed by the rule of law.”110 Authority over public welfare and economic regulation, labor, social security, and unemployment insurance is concurrent,111 while other social insurance is federal.112
In addition to political and economic rights, an extensive set of civil rights—including freedom of religion, “free development of . . . personality,” “life and physical integrity,”113 privacy, and freedom of movement—are protected.114
The entire set of “basic rights” is grounded in the Kantian principle of “human dignity”; human rights are “inviolable.” Moreover, “inalienable human rights . . . [are] the basis of every community, of peace and of justice in the world.” And they “bind the legislature, the executive and the judiciary as directly applicable law.”115
Going further in several respects than the U.S. Supreme Court’s understanding of the Fourteenth Amendment, the Basic Law requires equality regardless of “sex, parentage, race, language, homeland and origin, faith, . . . religious or political opinions [or] disability.” It imposes an obligation to “promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist.”116
The Basic Law includes fewer explicit protections for Germany’s very different criminal process but its protections overlap many provisions of the U.S. Constitution, including the ex post facto and attainder provisions of Article I, judicial provisions of Article III, and procedural provisions in the Fourth, Fifth, and Eighth Amendments. Germany also abolished capital punishment, and requires notification of someone acting on a prisoner’s behalf.117
Allied ideas about democracy, carried across European battlefields, are thus defined and elaborated in the postwar German Basic Law. In its use of the language of democracy it invites judicial construction, and its provisions for universal suffrage and popular sovereignty elaborate the concept of democracy in common with several other postwar constitutions.
Many of the trends that had driven the constitutional language elsewhere came together with force in India. Millions of Indians fought in World War II, mostly on the side of the Allies, despite India’s still unresolved drive for independence. Indians were keenly aware of the tragedy in Europe. In 1973, the Supreme Court of India explained:
After World War II when the disastrous effects of the positivist doctrines came to be realized there was reaction in favour of making certain norms immune from amendment or abrogation. This was done in the Constitution of the Federal Republic of Germany. The atrocities committed during Second World War and the worldwide agitation for human rights ultimately embodied in the U.N. Declaration of Human Rights on which a number of the provisions in Parts III and IV of our Constitution are fashioned must not be forgotten.118
As the result of its organization in pursuit of independence, the Congress Party dominated Indian politics for decades, in contrast to the Federalists in America, who were ejected after only twelve years.119 Congress Party leaders were less concerned with controlling the abuse of power than the founding American generation because its Indian leadership expected to be in control and wanted power to enact major social change.
Equally important, the Muslim minority was not large enough to force sufficient constitutional protections.120 The creation of Pakistan as a Muslim nation at the same time that India became independent increased Hindu dominance in India.
The Indian Constitution, adopted in 1950, was drafted by a national elite that was schooled in the struggle for independence, familiar with legal developments across the globe, and led by lawyers educated in England. Determination to lift the lowest among the Indians socially and economically was shaped as well by Congress Party principles in the fight for independence.
Benegal Narsinga Rau, a career public servant and judge, became the constitutional advisor to the Constituent Assembly responsible for drafting the Indian Constitution.121 Well educated in the constitutional law of many countries, he studied them anew; in 1947, he traveled to England, Ireland, Canada, and the United States—countries that either used to be or still were subject to the British Crown—to talk with experts in those countries. Of the U.S. Supreme Court, Rau met the present and former Chief Justices Vinson and Hughes, and Associate Justices Frankfurter, Murphy, and Burton. Frankfurter made a big impression on Rau with his insistence that courts be as restrained in civil liberties as in economic cases.
Rau described the dilemma facing constitutional draftsmen. If they created enforceable rights on the American model, they risked court decisions that intruded on judgments legislatures should make. Yet, language deferring to legislative judgment risked emasculating protections entirely. And language not judicially enforceable risked becoming a dead letter, an object only of derision. He illustrated each possibility with examples from American cases, all fresh in memory from recent battles over the courts’ proper role. The British model was based on parliamentary supremacy with no judicially enforceable restrictions on Parliament. India, having been part of the British Empire, was familiar with that model. That left the Constituent Assembly with stark choices.
Before Frankfurter’s appointment, the U.S. Supreme Court held major state and federal legislation “unreasonable,” and therefore unconstitutional violations of the due process clause. Most of those cases were not about process but about economic policy that the Court disliked. The Due Process Clause in the Constitution improved on the Magna Carta, which promised merely that no one would be punished but by the law of the land, that is, by legislation. The Due Process Clause required that criminal process must be due, that is, appropriate, and reflect a search for truth. But Frankfurter persuaded Rau that due process was a capacious formula that allowed courts to do a great deal of damage.
In India, many disliked the absence of procedural protections available elsewhere. Rau countered that legislatures, not courts, should weigh protections against other concerns. To protect their social and economic program, Congress Party leadership backed Rau and rejected the phrase due process of law. The Assembly instead took the phrase according to procedure established by law from the Japanese Constitution. Like the ancient Magna Carta, it protected against the king, but not the legislature. That decision, repeated on many issues of criminal prosecution, left the Indian Constitution without many of the protections available elsewhere.122
Multiple clauses, however, require equality. British Fabian socialism influenced Congress Party leadership regarding India’s impoverished masses. The Indian National Congress resolved in 1931 that “in order to end the exploitation of the masses, political freedoms must include real economic freedom of the starving millions, and that the organization of economic life must conform to the principle of justice.”123 The 1950 Preamble omitted “socialist” rather than tie the country to a particular economic solution.124 Nevertheless, the Preamble described a broad-based social agenda. India would be a “DEMOCRATIC REPUBLIC,” securing “to all its citizens”:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual.125
According to Rau, “equality before the law” came from the Weimar Constitution and “equal protection of the law” from both the Weimar and the American constitutions.126 That dual guarantee immediately precedes prohibition of discrimination on grounds of “religion, race, caste, sex, [or] place of birth,” effective both against government and private places of public accommodation. Rau took Justice Frankfurter’s advice “that legal provision might occasionally have to be made for women, for example, to prohibit their employment for certain periods before and after childbirth,” an example suggesting no distinction between protecting and prohibiting action by women. India’s Constitution permits “special provision for women and children.”
Equality provisions continue. Discrimination in government service is prohibited based on “race, caste, sex, descent, place of birth, [or] residence” but affirmative action “in favour of the Scheduled Castes and the Scheduled Tribes” is authorized. Untouchability is abolished, its practice forbidden and criminalized, a provision that passed with shouts of “Mahatma Gandhi Ki Jai,” which translates as “Hail victory to the Great Souled Gandhi” who had been assassinated by another Hindu as the nation was being established.127
The next article abolished titles, completing the section devoted to equality but the section on fundamental rights continues by protecting religious and linguistic minorities. And the Indian Constitution reinforces equality in the apportionment of legislative seats, proportional representation in Parliament and the right to vote for all adult citizens, although courts were barred from most electoral disputes. The Constitution also reserves legislative and administrative positions for members of the Scheduled Castes, Scheduled Tribes, and the Anglo-Indian community. In all, the Constitution has quite a bit to say about equality and affirmative steps to achieve it.128
The Indian Constitution adds sixteen articles to improve the welfare of the millions of impoverished Indians which, however, “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”129 Rau explicitly borrowed the Indian Directive Principles from Ireland. He recommended making them judicially unenforceable because their guarantee depends on what may be practical and therefore they are “not normally either capable of, or suitable for, enforcement by legal action.”130
Rau’s approach was criticized as ineffective. He responded they would be educative. Dr. B. R. Ambedkar wanted the principles to be justiciable. Ambedkar—by caste an “untouchable,” not a member of the Congress Party, and critical of many of its positions—played a major role in writing the Constitution, chaired the drafting committee, and served as the first law minister as well as on many relevant committees. Ultimately he supported the Directive Principles because he realized that no party was guaranteed to head the government, so those principles could help to steer the state toward public welfare.131
Before the Constitution went into effect, Ambedkar made the connection between economic and political rights and democracy. When the Constitution would go into effect, India would “enter into a life of contradictions.” It would have equality in politics and inequality in social and economic life. He wondered how long that could continue. If too long, they would put “our democracy in peril . . . or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.”132 Politically India would have one person per vote in 1950, well before the U.S. Supreme Court recognized that principle.
The Directive Principles were longer and broader than the Irish precedent, part of an ambitious blueprint for remaking Indian life, society, and economy from the bottom up. The Directive Principles address income inequalities, gender justice, workers’ rights, the caste system, nutrition, public health, public welfare, and public assistance, plus the environment, historic places, separation of powers, and the promotion of international peace and security—a lengthy wish list. Although judicially unenforceable, the principles were backed up with enforceable injunctions on equality, education, and representation elsewhere in the Constitution.
Indian Supreme Court Judge H. R. Khanna was celebrated for decisions blocking the Parliament from undermining the democratic constitutional framework to keep Indira Gandhi in power, and for his 1976 dissent insisting that prisoners who had been detained without trial had the right of habeas corpus.133 Speaking to the Indian Law Institute, Judge Khanna put Ambedkar’s insight into a larger context: “Since the . . . French Revolution, there has been a growing awareness of the close link between political freedom and social justice.” He continued: “[T]he content of political freedom can be impaired by the absence of social justice. Unless there was adequate protection for social and economic rights, classical individual liberties like the right to equality, liberty of person, and freedom of speech might lose much of their significance and even face a serious threat for their own survival.” And he expanded the context to the formative events of the twentieth century: “The aftermath of the first World War also highlighted the fact that peace in the world can be established only if it is based on social justice. A number of modern Constitutions accordingly embodied within themselves declarations of principles which emphasize the duty of the State to strive for social security and to provide work, education and proper conditions of employment for the citizens.”134 The founding generation of America understood that democracy depends on a republican society with sufficiently equal and independent people. Ambedkar and Judge Khanna explained its centrality to the Indian Constitution. And Judge Khanna tied the Indian experience to European and American constitutions. Thus, American contributions to democracy were expressed halfway around the globe.
The European Convention on Human Rights, adopted in 1950, incorporated many rights specified in the UN Universal Declaration of Human Rights adopted two years earlier, making them binding on members of the European Union and enforced by the European Court of Human Rights. The Convention makes explicit the connection between those fundamental freedoms, political democracy, justice, peace, and European unity.135
Articles 2–7 protect life and liberty in criminal and other proceedings and against slavery, including protections similar to those of the Fourth, Fifth, Sixth, Eighth, and Thirteenth Amendments to the U.S. Constitution. They are necessary for democracy so that the criminal process cannot be used for political ends, and to protect the welfare of the public.
Articles 8–11 use democracy as a standard for permissible restrictions on human rights. For example, Article 9 par. 2 allows limitations of rights only if they “are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.” Articles 8–11 all say “necessary in a democratic society” but add different considerations.136
Two years later the Council of Europe added Protocol No. 1 to the Convention. Art. 3 of the Protocol spelled out some requisites of democracy: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The courts will understand “people” to include universal adult suffrage.
Canada and South Africa later adopted interesting and influential constitutions. By Canadian and U.K. statutes in 1982, the United Kingdom relinquished power over Canada, and Canada adopted the Charter of Rights and Freedoms.137 Building on language in the German and Indian constitutions and the European Convention, the first section makes protected “rights and freedoms . . . subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The Charter protects such rights as religion, speech, assembly, association, and other fundamental freedoms along with rights in the criminal process.138 Section 3 guarantees the right to vote to “every citizen of Canada.”139
The Charter treats equality at length, in ways reminiscent of the Indian Constitution. It protects equality “before and under the law” and “to the equal protection and equal benefit of the law without discrimination based on race, national, or ethnic origin, colour, religion, sex, age, or mental or physical disability.” Continuing, it protects efforts to “ameliorat[e] . . . conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”140 And the Charter commits Canada to “promoting equal opportunities for the well-being of Canadians . . . economic development to reduce disparity in opportunities; and . . . providing essential public services of reasonable quality to all Canadians” as well as regional equality.141
American-influenced free world values also bore fruit in the South African Constitution, which expresses the democratic ethos throughout. As stated in the Preamble, the Constitution was designed to:
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person;
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
Democracy was more than a method of counting votes. It was intended to reflect the will of the people, and was tied to social justice, human rights, equality, and improvement of the lives of all South Africans.
The first section continues the democratic refrain, connecting democracy with inclusion and competition in order to secure an accountable, responsive government: “The Republic of South Africa is one sovereign democratic state founded on the following values: . . . (d) Universal adult suffrage, a national common voters roll, regular elections, and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”142 The South African Bill of Rights links democracy with dignity, equality, and freedom: “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality, and freedom.”143 For South Africa, democracy includes all adult citizens in an open, competitive, and participatory process. The right “to vote in elections for any legislative body” and to campaign for or hold public office belongs to “every adult citizen,”144 along with the rights of speech, press, assembly, demonstration, picketing, petitioning, association, “academic freedom and freedom of scientific research.”145 The South African Constitution provides for multiparty competitive democracy via proportional representation.146
The Bill of Rights includes elaborate provisions for equality,147 and a set of economic rights including freedom of trade, occupation, profession, and fair labor practices; a healthful, sustainable environment; elaborate property rules which include consideration for the dispossessed, housing, health care, food, water, and social security; rights of children which include “nutrition, shelter, basic health care services, and social services”; and the right to education.148
Like Germany, India, Canada, and the European Convention, South Africa made democracy central to any limitation of rights protected “in the Bill of Rights [which] may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom . . . [as well as five other listed factors].”149
The 1996 Constitution reemphasizes the point in Section 39(1), which sets out how the South African Bill of Rights should be interpreted:
1. When interpreting the Bill of Rights, a court, tribunal or forum
a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
It continues by requiring that courts:
b. must consider international law; and
c. may consider foreign law.
Then using the Bill of Rights for wider purposes, the Constitution adds:
2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport, and objects of the Bill of Rights.
The Constitutional Court was given power to determine the constitutionality of acts of national, provincial, and local legislatures and to certify amendments of provincial constitutions for consistency with the national Constitution.150 Democracy is a theme throughout the document.151
In short, this era of constitution writing created documents that used democracy as a standard, provided for electoral competition, inclusion of all people, and incorporated social and economic rights as part of a democratic framework. The goal of social and physical integration was less clear abroad than in the United States where it was becoming increasingly powerful, often to the exclusion of economic rights deemed important abroad.