Mike Pompeo’s Originalist Foreign Policy

This past week, Secretary of State Mike Pompeo unveiled the report of the State Department’s Commission on Unalienable Rights. The report, written by a panel of academics convened by Pompeo, supposedly strengthens the State Department’s “efforts to protect and promote human rights” around the world by clarifying the “founding principles” of the United States.

This justification is a pretext. While pretending to strengthen protection for human rights abroad, the Commission’s report gives ammunition to partisans who aim to weaken core constitutional protections within the United States.

Pompeo and the Commission’s report embrace an “originalist” vision of America’s founding. Originalism is a doctrine in constitutional law that holds judges should identify and apply the “original meaning” or “original intent” of a provision when resolving constitutional disputes. While there are liberal originalists, prominent conservatives nurtured and championed the theory, positioning it as a neutral methodology to limit judicial overreach. In debates over constitutional meaning, originalism privileges the founders over modern citizens and their contemporary values.

Before Pompeo’s report, no diplomat had thought to apply “originalism” to framing principles for U.S. foreign policy. But Pompeo, a Harvard-trained lawyer, has brought them together under the banner of the Commission.

He said the Commission was necessary because the United States “can’t confront Beijing or other gross human rights violators throughout the world without understanding the roots of our foreign policy, though the lens of our founders’ intent.” The report references the “founders” 15 times, arguing for a foreign policy centered on “the point of view of the founders.” It declares that the founders believed the “foremost” unalienable rights were those to private property and religious liberty.

This language is textbook originalism. It assumes the founders — a fractious group — had a shared “point of view.” It suggests modern observers are capable of identifying this shared “point of view.” It situates the “founders’ intent” as the lodestar in resolving modern challenges.

It also is susceptible to the same sorts of partisan abuse that corrupt so much originalist reasoning in constitutional law. Pompeo uses the cover of the founders to hide his subjective, values-driven political choices, just as many judges use the cover of originalism to hide their subjective, values-driven judicial choices. Originalism allows Pompeo to advance key political goals under a veil of objectivity, just as it allows judges to legitimize their constitutional decisions.

While the rights to private property and religious liberty are central to America’s constitutional tradition, there is no consensus that they were (or are) the “foremost” rights among a panoply of important ones. Take private property rights. The Constitution’s textual treatment of the right to private property, through the Fifth Amendment’s Takings Clause, the Fifth and Fourteenth Amendments’ Due Process Clauses, and Article IV’s Territorial Clause, is indirect.

Alexander Hamilton declared at the 1787 Constitutional Convention that “one great obj[ect] of Gov[ernment] is the personal protection and security of property.” He did not say it was “one of the two greatest objects.” Even if he had, his comment would not settle the matter, given that participants in the debates over the Constitution and the Bill of Rights had competing priorities and understandings of property. And since the New Deal, Americans have accepted a constitutional order that gives the government great latitude to redistribute and regulate private property — even on seemingly trivial questions, like the amount of wheat a farmer can grow for personal consumption.

The report’s characterization of property rights does not capture these nuances. Instead, Pompeo wields “originalism” as a crude political weapon. As secretary of state, Pompeo has routinely denounced the specific threat of Chinese communists and of socialism generally. The United States, per Pompeo, faces a “substantial threat to our health and way of life” from the “Chinese Communist Party” whose “socialism” leads to death and destruction. As the United States edges closer to a Cold War with China, and his boss campaigns for re-election by inveighing against socialism, Pompeo’s invocation of the founders bolsters a political narrative.

After describing private property and religious liberty as America’s “foremost” rights, the report minimizes rights that protect marginalized groups. It characterizes “abortion, affirmative action, [and] same-sex marriage” as “divisive social and political controversies,” not fundamental rights.

The Supreme Court, of course, has ruled that abortion and same-sex marriage are fundamental rights protected by the Constitution. Properly-structured affirmative action programs have been recognized as constitutional for over 40 years. Judges, in the words of Justice Sotomayor, must “apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

The Commission’s report, however, does not just downplay these important rights. It rejects the modes of constitutional reasoning that allowed the Supreme Court to establish them. The report speaks darkly of “activists” who are “determined to bypass ordinary politics and domestic democratic processes” by illegitimately deploying “the language and structures of international human rights to advance agendas that are not widely shared in the community of nations, and sometimes not even within activists’ own nation.”

While not all progressive judges take international norms into account in every decision, considering international human rights frameworks is one form of progressive constitutional reasoning. And legal activists sometimes turn to it when pushing for change.

Consider Obergefell, the canonical Supreme Court decision that held same-sex couples have a right to marry under the Fourteenth Amendment’s Due Process and Equal Protection Clauses. In the lead-up to the decision, gay rights activists argued that the laws of other democracies should inform the Supreme Court’s interpretation of the Fourteenth Amendment. They noted the Netherlands had legalized marriage equality in 2001 and other countries with similar legal traditions to our own followed. Supporters of marriage equality urged the Supreme Court to recognize the “emerging global consensus” of equal marriage rights.

To an originalist, none of this mattered. Obergefell was a simple case. “When the Fourteenth Amendment was ratified in 1868,” Justice Scalia wrote in dissent, “every State limited marriage to one man and one woman.” Because “the People who ratified” the Fourteenth Amendment “did not understand it” to prohibit gay marriage, same-sex couples were not entitled to a constitutional right to marry. Case closed.

Justice Kennedy, who wrote the Obergefell opinion, rejected this rigid form of reasoning. He cited an extensive “deliberation” that created “an enhanced understanding” of the gay couples’ marriage rights. His opinion shows that modern Americans — not only the founders or ratifiers of the Constitution — contribute to the process of constitutional adjudication. And part of that process can involve considering international and comparative law.

Conservative legal scholars have long warned that the use of international and comparative law in constitutional adjudication threatens the viability of originalism. Robert Bork, whose seminal 1971 essay “Neutral Principles and Some First Amendment Problems” shaped originalist thought, warned “international law poses a real threat to every nation’s ability to make its domestic laws and to act abroad as its national interests dictate.” Justice Scalia, perhaps the Court’s most famous originalist, accused his colleagues of supplanting America’s founding principles with “the views of foreign courts and legislatures.”

With the Commission’s report, the State Department joins this chorus. The report deploys the apparatus of foreign policy to protect the prized methodology of America’s conservative legal movement. By elevating property rights and religious liberty over other constitutional rights, they hope to disassociate American jurisprudence from accepted international human rights norms. Simultaneously, they attempt to foreclose domestic activists from making non-originalist arguments for constitutional change.

Pompeo released the Commission’s report at a time when the tension between originalism and the international human rights consensus is particularly pronounced. This past week, the Trump administration executed three federal prisoners. For originalists, these executions were clearly constitutional. Justice Scalia, for example, observed that the founders accepted capital punishment and even tolerated grisly executions for minor crimes. He believed originalism made resolving death penalty cases “easy.”

This originalist argument stands in stark contrast to the jurisprudential treatment of capital punishment in democracies with similar legal traditions and customs to our own. The United States is the only Western country that regularly executes people. According to Amnesty International, 142 countries have abolished capital punishment in law or practice. As noted by Justice Breyer, the United States has joined a dwindling list of autocracies — including China, Saudi Arabia, and Iran — that execute large numbers of people.

Against this backdrop, domestic activists have increasingly incorporated international law into constitutional arguments against the death penalty. These arguments reject the basic tenets of originalism. But they have found a receptive audience among liberal members of the Supreme Court, who have narrowed the permissible applications of capital punishment. Justice Stevens, one of the first justices to embrace this type of argument, believed that America’s outlier status among “most countries in the Western world” was relevant to Eighth Amendment analysis.

This is what Pompeo and the Commission fear. They worry about domestic legal activists mobilizing around progressive interpretations of the Constitution — and judges agreeing with them. Tethered to a constitutional methodology whose outcomes are increasingly untenable in the twenty-first century, Pompeo and his Commission invoke the founders to silence Americans demanding a Constitution that reflects modern — and increasingly global — values.

In recent weeks, Americans demanding a Constitution that reflects modern understandings of equal protection and due process have protested in historic numbers. Pompeo used the unveiling of the Commission’s report to smear them. “Justified outrage at the actions of a rogue Minneapolis policeman,” he said, “has given way to outrageous efforts to erase American history by tearing down statues of our nation’s founders.”

Pompeo gets it all wrong. The heart of the American constitutional project has never been the “nation’s founders.” It has always been grassroots activists who protest, organize, and insist America live up to its lofty constitutional promises — just as it has always been legal activists who have been able to turn the “justified outrage” of ordinary people into binding court decisions and laws. To “protect and promote human rights,” we should look to these people, and not to a government Commission and its tendentious report.

Duncan Hosie is a rising third-year student at Yale Law School.