Appropriation and the rewriting of rights

• Huckerby, Jayne ^[1] ; Knuckey, Sarah ^[2]
  1. [1] Duke University

     Duke University

     Township of Durham, Estados Unidos

     
  2. [2] Human Rights Institute and Smith Family Human Rights Clinic, Columbia Law School , New York, NY
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 21, Nº. 1, 2023, págs. 243-265
• Idioma: inglés
• Texto completo no disponible (Saber más ...)
• Resumen

  • The protective reach of human rights has expanded over time. However, some have argued that this expansion constitutes illegitimate rights inflation, and for some conservative stakeholders, the modern development of rights has been at odds with their positions on issues such as reproductive rights and marriage equality. Against this backdrop, the Trump Administration launched the Commission on Unalienable Rights in 2019 to “reexamine” rights. It might be expected that such an initiative would reject human rights. However, it embraced rights discourse, positioned it as central to US values and policy, and called on the United States to pursue rights with “renewed vigor.” This article offers a decoding of this apparent embrace. We argue that rather than renewing commitments to rights, the Commission appropriated human rights. It reworked the human rights canon from within by elevating some rights over others, and by narrowing rights in line with conservative takes on where rights come from, who they should protect, and which rights matter. This article offers a framework for analyzing how appropriation happens, and where and in what ways it is contested. We identify four core elements to appropriation and spaces for challenging it: messenger and motive legitimacy; process legitimacy; substantive legitimacy; and norm diffusion. This framework makes visible the sites and processes of appropriation under the cover of protecting rights, that in practice seek to roll back understandings of right and their sources. While the Commission was disavowed by the subsequent US administration, conservative efforts to redefine rights are ongoing—including through promotion of the Commission’s work—and share many of the same normative underpinnings of the Commission’s establishment and rollout. Making apparent the strategies and mechanisms of appropriation through this case-study therefore enables recognition of future conservative moves to appropriate rights and provides insights into how to resist such efforts.