From NSA to race, a protector of rights needed
Shortly after World War II ended, American reformers proposed a bold constitutional change: the creation of a new legal body — a tribune of the people — charged solely with protecting the natural and civil rights of individuals and groups. This office, serving as a public advocate, would safeguard against totalitarianism and act as a powerful instrument for human rights.
Since its first modern usage in Sweden, many countries — including Colombia, Costa Rica, Estonia, France, Norway, and Poland — have established such an ombudsman for the people in the form of a national defender of rights, commissioner for human rights, or chancellor of justice.
More than 60 years later, the time has come for the United States also to enact this reform.
At few points in American history has its citizenry faced more significant questions over individual rights and liberties. Consider, for example, ongoing debates over federal government surveillance and land management programs; the detention, interrogation, and killing of suspected terrorists and persons of interest; the treatment of prisoners, immigrants, and foreign nationals; and the rights of religious, racial, ethnic, and sexual minorities.
All of these debates reach far beyond a single case brought by individuals in the US courts. They have an impact across the daily lives of all Americans, and yet our current legal system offers insufficient institutional protection or advocacy for the citizenry as a whole.
Popular lore holds that courts are the bulwark of individual rights. In fact, history demonstrates that judges rarely resist mobilized majorities. Judges — even those with life tenure — are willing to enforce rights when doing so does not depart significantly from mainstream cultural attitudes and political preferences. Because courts are generally passive and conservative institutions, they must be constantly prodded by others to understand that rights are important to a number of stakeholders, to consider all relevant law, and to realize that rights can be defended without undermining democratic values and political priorities.
Under this current system, Americans are left on their own to understand the complex body of domestic and international law. Those who are unable to afford a lawyer or espouse unorthodox legal views face daunting odds in having their arguments taken seriously. The existing Civil Rights Commission, created in the 1950s, has a narrow mandate as a fact-finding agency — its voice is diluted because it operates as a multi-member board.
Occasionally, government lawyers can help. At key moments in history, the solicitor general of the United States has been a powerful voice in support of racial equality, voting rights, and the rights of sexual minorities. In reality, however, that office’s legal positions are constrained by the policy agenda and constitutional vision of the administration. The Department of Justice has a civil rights division, but its agenda is limited and its head reports to the attorney general.
As currently constituted, government lawyers simply are inconsistent defenders of individual rights. In 2011, Acting Solicitor General Neal Katyal issued a public apology for his office’s historic role in overstating the military threat posed by Japanese Americans to justify their wartime internment. This extraordinary statement underscored how politics can overwhelm the judgment of executive branch lawyers in times of crisis. Even in the best of worlds, legal perspectives remain captured by interagency processes and constituent concerns.
For now, advocacy groups fill some of the gap as well, but their voices are all too often fractured and lack institutional heft. Paradoxically, as more amicus briefs are filed in the Supreme Court, the Justices have relied increasingly on the expertise of government lawyers.
A tribune of the people, called from among the citizenry but enjoying a measure of independence from each branch of government, would institutionalize respect for rights. With time, his or her recommendations on how best to protect rights might enjoy the same prestige accorded the solicitor general’s perspective today. Just as the solicitor general must be “learned in the law,” so the tribune would become expert on laws protecting rights and liberties and give opinions on such matters. Unlike the solicitor general, however, the tribune must be freed from the narrow departmental role of “assist[ing] the attorney general” and encouraged to dispute government policy.
The tribune must be allowed to appear before the courts. Beyond litigation, he or she could play a crucial role in Congress and the states shaping public debate over rights. The best chance to influence a law is before it is passed: by educating citizens, counseling policy makers, and testifying before hearings.
The challenge is to create a national institution that can be an active participant in debates over rights broadly rather than serve as merely an opposition leader or single-issue lobbyist. To be fully independent, this new position would have to be perfected through a constitutional amendment. But short of this, a quasi-independent office could be created through presidential appointment and Senate confirmation. Ideally, a tribune would serve a term of three to five years, which would foster commitment and accountability without rendering the position unattractive.
More than just an advisor, the tribune could ultimately serve as the conscience of the nation, urging Americans to be our best selves when crucial liberties are at stake but when a president’s political instincts tell him to stay silent.
Robert L. Tsai is a law professor at American University and author of “America’s Forgotten Constitutions.”