In Conversation with John Shattuck: “Rights, if you can keep them” 

“There are ways and means of bringing the energy of the movement to bear on the political system. It’s a long process. It doesn’t happen overnight, but it does happen.”

Teodora Miljojkovic, RevDem assistant editor, interviews Professor John Shattuck, international legal scholar, diplomat, human rights leader and previous CEU rector. In his early career, Professor Shattuck was a visiting lecturer at the Woodrow Wilson School of Politics at Princeton University and lecturer at the Harvard Law School. In the early post-Cold War years, Professor Shattuck, while serving as the US Assistant Secretary of State for Democracy, Human Rights and Labor, had a key role in the negotiations of the Dayton Peace Agreement and he was instrumental in the establishment of the International Criminal Tribunal for the former Yugoslavia and Rwanda. Today, Professor Shattuck is a senior fellow at the Carr Center for Human Rights Policy at Harvard University and Professor of Practice at the Fletcher School at Tufts University. Teodora and Professor Shattuck discussed the book “Holding Together – the Hijacking of Rights in America and How to Reclaim Them for Everyone” by Professor Shattuck, Sushma Rahman and Matthias Riss from the Carr Centre for Human Rights Policy at Harvard University, which was published by The New Press. This followed the launch event for the book at the CEU in Vienna.

Teodora Miljojkovic: The book represents a comprehensive overview of the development, but also current state, of rights in the United States. Perhaps even more importantly, it provides concrete recommendations to policymakers and citizens on how to reclaim them. It is written in language that is accessible to everyone, rather than just a scholarly audience. I would like to start this interview with the reference that the book makes to a famous quote attributed to Benjamin Franklin. Supposedly, his rejoinder when asked what kind of government was being created at the 1787 Constitutional Convention was “Republic, if you can keep it”. The book shows that the task of “keeping it” requires incredible efforts –  not only through the lens of governmental decision making processes, but also on the very basic level of civic education and citizens’ participation in political life. The data from the book shows that many American citizens do not have proper access to such education and participation. So, my question is: where should the process of reclaiming rights start? Should it proceed from top to bottom or the other way around? Obviously both are necessary and important, but where can the wave of change in terms of human rights protection really start, both generally and specifically in the context of the US?

John Shattuck: Well, thank you for that question. It’s a very good one and a very deep question too, I might add. 

Democracy requires engagement by all people. That’s probably the biggest single challenge that any democracy faces, because people are lazy, and people don’t really pay attention. Or they say that somebody else is taking care of the problem, whatever the problem may be. But actually, that doesn’t work in any democracy. 

A democracy like the one in the United States is very, very diverse. It has people from all over and from many different nationalities, and this, of course, underlies the ways in which Americans have come together. This requires a great deal of what I call ‘civic education’. That is, I think, what Benjamin Franklin was talking about. He was saying, “well, fine, we’re going to write a constitution. We’re going to do all that we can to give you the requirements of a government but then you have to go out and do something about it.” And the only way to do “something about it” is to really know your responsibilities. 

Over the years democracies, including in other European countries, have tried to encourage their educational systems to promote certain kinds of education about how government works, the responsibility of citizens to vote, and the duty not to discriminate against their fellow citizens. These are all the basic things which are rights and are also responsibilities. But that’s not so easy to teach. I would say that is particularly the case these days – this now goes into a more contemporary cultural point. 

So much emphasis is put on what we call STEM (science, technology, engineering and mathematics). That’s very good because the world is so complicated and students have to learn all the technical aspects of life in order to be able to succeed. But the problem is that that’s pushed aside some of the more basic values, education issues, philosophical issues, and also practical issues have been pushed aside. 

For example – how does the government work? There is a shocking statistic that we reveal in the book that only about 50% of the Americans who graduate from high school know the various different parts of the federal government –  I don’t mean all the various agencies, but the core institutions of the presidency, the judicial branch, and the legislative branch and how they work. 

If citizens don’t know the parts of the government, then they’re not really going to really think about how to participate in that practice by voting. 

We need to spend more money on civic education. 

Civic education funding has been cut over the last 20 – 25 years because of the emphasis on science and technology that I mentioned before. We’ve slowly seen some change on this in the US funding system. But the system is complicated because it comes not only from the very top of the Federal Government, but also from the states. Most education in the US is funded through local school boards that are paid for by local taxpayers. So it’s a very complicated problem. But, in the end, I think that Benjamin Franklin’s challenge was very important and hopefully it’s a challenge that can be met. Now your basic question was –  should reform start from the top or from the bottom? The answer is both, of course. You answered it yourself. But I would emphasize the bottom more than the top, in a sense. Writing laws and constitutions is something that is done by people who are elected to office. Sometimes they do it well, sometimes they do it badly. Sometimes they take away the democracy. I would argue that’s what’s happened next door in Hungary.

One of the reasons why CEU had to leave and come to Vienna was that the constitutional system of Hungary was changed from the top down when the constitution was rewritten to remove some of the independent, autonomous elements of the civil society and other aspects of life in Hungary. We don’t need to go into that at this point. But ultimately it’s really all up to citizens. As I told the CEU students last night when I gave my talk about the book – in the end it’s up to all of you.

At the end of every one of my CEU graduation moments, as the students left and they were very glad to get their degrees, I would say that I only have six words of advice to you – go out and save the world. 

You need to do that. Everybody needs to take responsibility. That doesn’t mean you need to become the president or become a senator or become anything in particular, but you do need to take responsibility for your interaction with other people. In the end, that’s what human rights are all about.

Yes, of course. And I also think that these interviews and talking about these things is very important to share these ideas with a wider audience. It is a good thing about technology nowadays that we can use it for the good purpose of educating citizens, even in these civic matters which have been left stranded.

I would now like to talk about the book itself. It discusses in detail the variety of threats to human rights in the US. I notice that a particular emphasis is placed on racial and gender injustice. This is no wonder, as these issues span across all areas of citizens’ daily lives. For example, we have the latest developments in the US on women’s rights, namely the leaked reports suggesting that the Supreme Court is considering overturning Roe v Wade[N.B. This interview took place before the Supreme Court judgment rescinding the constitutional right to abortion].

According to the Nationwide poll conducted in July 2020 by the National Opinion Research Center at the University of Chicago, 72% of Americans support a woman’s ability to make decisions affecting her body and personal life. This is striking in light of the turn to judicial reasoning restricting abortion rights when a vast majority of citizens are against that. Obviously something is not working in that democracy. 

What is the solution, in your opinion, to this obvious discrepancy between citizen opinion and the position of the final arbiter of the law? Could the solution be restructuring of the court, which many scholars are currently debating? Or should the change be political in terms of agendas and campaigns?

Another very good question. I think that we have two parts to the answer, which is never definitive because it is only the best answer that we have at the moment. In terms of what we show in the book, first I want to emphasize the enormous amount of research that has been done. I did not do it all myself by any means. We had 17 Harvard research assistants who each worked on a particular chapter. We had three colleagues, including myself, and a large team who were able to put together all this data. This includes particularly the polling information, but also the information coming out of what we call “town hall meetings”, where we met with groups of citizens in three different cities around the United States: Phoenix, Arizona, Atlanta, Georgia, and Detroit, Michigan. These are all cities that are highly contested within in the political system. So, we really got tremendous input from the research that was done, and it’s a Harvard product which tends to make it more credible for some people. 

The research points towards not only this very important issue of abortion and women’s rights, but also broadly to a disconnect between public opinion [and the Supreme Court]. The good news is that public opinion is generally supportive of the principles of democracy and human rights. 

This includes these principles even as they appear in the US Constitution, and even in some more detailed areas, which we can get to in a moment.

One of these areas is, of course, abortion.  Public opinion is strongly supportive of these rights and responsibilities, and yet the political system has increasingly over the last ten years or so been disconnected from what the citizens want. One of the answers is the position I talked about in the earlier question that it is the responsibility of citizens to take action, to mobilize, and to be part of a movement. Here, with respect to women’s rights, there is an enormous amount of mobilization and people coming together. I don’t mean just mobilization in the sense of  demonstrating in the streets, but mobilization as a means to find people who may not normally agree with you. There may not usually be agreement, but when it comes down to it they say “wait a minute, do we want the government in our bedrooms? Do we do we really want people to be making decisions about such basic questions as whether or not to bear a child?” You’d be surprised at how people’s views can change when they begin to discuss these issues. 

If it were simply a matter of getting out and saying “the Supreme Court is a disaster and we’re going to take it down and do everything we can to remove these justices”, then that would only further polarize the public. 

But actually it’s possible to find ways of connecting across the partisan divide. So that’s one broad answer to the question. There is a second broad answer that indicates that, yes, it is possible [to address the discrepancy between public opinion and the Supreme Court]. Even after this decision, its implications do not mean that the whole concept of a woman’s right to choose when and where and how to bear a child should be taken away. It comes back again to the political system because it would be entirely possible [to preserves this right] and the US Congress is actually contains a number of Democrats who have been pushing this position. It is actually possible for the Congress to overturn the court and to say “no, we actually think that a woman should have, under these circumstances, the right to make a decision about when and where and how to bear a child”. [N.B. This interview took place before the attempts within Congress to legislate on the right to abortion].

There are obviously very complicated issues concerning the length of term of pregnancy, and all the issues which the court has debated. And Congress would have to debate these issues too. So there would probably have to be some compromise in order to come up with a solution that could be done through legislation. It certainly can be done at the level of the state legislatures. 

The tragedy is that this decision means that there will be basically two Americas for women on this subject. There will be areas where there are no abortion rights and there will be areas where there are very broad abortion rights so women will have to travel from one state to another to have an abortion. Poor women, women of color, and others without the means to travel are going to be particularly discriminated against.  

So that’s the worst outcome as a practical matter. But as a political matter it is possible to organize and to use the techniques that I described at the beginning of the interview to find ways to reach across the partisan divide, and then to allow people to understand that at a certain level. After all, many of the far-right people who are advocating the abolition of abortion are also deeply opposed to government intervention.  If we try to help people to understand that there is an inconsistency here, then that can go a long way toward building a coalition of the kind that I’m talking about.

I think it’s really important that we emphasize here that, even after this judgment, it’s not the end. There are ways to keep this right. But, as you said,  in different states in the US there will be different standards on rights – in this case, specifically women’s rights. This is not just a practical problem. It seems to me that here we are approaching a blurring of the American “constitutional identity”. If the states have different standards on human rights, as we are asking ourselves, then what does America, as a whole, stand for on that issue? Which is the real America? Is it the one which supports human rights, or the one which doesn’t?

On that point, I think that we could discuss another huge US problem that we have witnessed in the last months and years –  gun rights and public safety. The tragic shooting at an elementary school in Uvalde, Texas has raised the biggest concerns recently, but it is important to mention that this is not the only example. It is happening almost every day. Considering the common core of the American constitutional identity, why do you believe that such strong priority is given to the Second Amendment right to bear arms when it obviously impacts upon the fundamental right to safety of individuals, including children? Another very interesting piece of data from your book concerns the legislative act on domestic violence that was not renewed during the Trump era exactly because it would prohibit people from holding guns. So we can see that women and children are not protected because of this priority to allow for the holding of guns. 

My question is how should American society and legislators reconcile this narrative of the Second Amendment as it pertains to American constitutional identity with the obvious dangers that gun ownership poses to citizens’ daily lives?

Very good question. And one that is at the top of the agenda right now. In fact, even as we speak [at the start of June], the US Congress is talking about this and you probably read that President Biden gave a very strong speech urging Congress to act as it needs to, and as it hasn’t acted for years and years. The Second Amendment is complicated. There’s really nothing comparable to it, at least that I’m aware of, in other democracies with constitutions that grant rights in the same way that the US grants rights through the Bill of Rights to the US Constitution. The Second Amendment has two parts. The part that seems unexceptional in a way is the one concerning a well-regulated militia, as this was necessary back in the 18th century, when Benjamin Franklin was writing the amendment, as there was no US Army. Anything that happened regarding the development of any military capacity in the United States happened through the states; they would each have a well-regulated militia, with the emphasis on well regulated

The Second Amendment is the only part of the US Constitution in which the word “regulated” is used, so it really should have meaning. It does not just say that anybody can come and take a gun and go out and fight whomever you’re going to fight. No, it is quite the contrary – the subject was a “well-regulated militia”. 

But then there’s a second clause to the amendment, which states that the right to bear arms shall not be abridged. And that second part of the agenda is the one that the gun rights advocates have taken and run with. And, frankly, the Supreme Court has tended to go in their direction. I think that it’s a fundamentally wrong interpretation of the Constitution. I’ve argued that, and many people take that same position. But the bottom line is that that’s not the position that the Supreme Court has taken. But, having said that, there are two other things which point in a the direction similar to what I said with respect to abortion and other issues. First, there is nothing in the Second Amendment that prevents  regulation of weapons to protect public safety, which is also a right in a broad sense of the word. 

The whole Constitution is written in order to provide for a federal government that will provide a general level of public safety to people. That’s why an army is necessary. So public safety should at least be as important, and probably more so, than any right to bear arms. 

That means that states and the federal government are fully authorized [to regulate guns]. Nobody has really challenged this, and there isn’t any constitutional basis for challenging it. Banning weapons would probably be more problematic because of the Constitution, and the right to bear arms, but regulating them is certainly authorized now. Then the second point that I would make is that the public wants regulation. The public is strongly supportive. For example, 70% of Americans support a ban on assault weapons, which is the subject of the very bill that is on the floor of the US Congress right now, which would ban the kind of weapon that has been used by these 18 year old kids who’ve killed people in Uvalde and also in Buffalo. Many of that 70% also believe that the right to bear arms should be protected. They see the balance between the right and the need to regulate and prevent the use of weapons that really can be destructive, particularly when used by young people. But I don’t want to put it just on young people. Old people as well, for that matter, shouldn’t be using these weapons.

So the opportunity is there to regulate guns, and I think the mandate is forthcoming from the people for this. The final question is, well, why hasn’t it happened? There are a number of reasons, and they speak to the flaws in the system. One reason is that we have an extremely active lobbying organization called the National Rifle Association, which has been very active in the Congress. It has been giving financial help to members of Congress who have supported its positions. It has terrorized members of Congress in a certain way by saying that, if you don’t support our positions, we’re going to actively go out and defeat you. And then there are these structural problems in the US political system, with the obvious one being the so-called “filibuster” in the US Senate which basically says that you can’t pass a bill without 60 votes out of 100, which is more than a majority. I mean, it’s a 60% majority and that’s absurd. Then you also have big rural states with relatively small populations that have two senators whereas big population heavy states like New York also only have two senators.

So you have these disproportionate checks and balances that were built into the system in the beginning, and they’re problematic today and are getting in the way of this kind of legislation. The final reason why all of this is happening, I think, is the rise of the extreme right and the populist extremism that is holding the country hostage. That’s literally what the subtitle of our book is – “A Minority of People”. I don’t think that they’re more than about 30%, because as I keep telling you there is about 70% that supports things like a ban on assault weapons, etc. 

But that 30% [with extreme views] has managed to use these structural flaws to hold the country hostage. So we need to fix the structure. We need to get the people to be more active. We need people to be more engaged and to press for their rights. We need to translate the 70% that supports gun control into actual legislation. 

It’s a big task, but I think it can be done. It just means that people need to get active. Democracy doesn’t work unless people are active.

And then we go back to deliberation and education. I appreciate that you have explained this perspective, because in Europe we just don’t understand what’s happening. There are so many layers to that story, and it’s not just about going out and regulating. So there are many factors, which is why it is an even more complex issue. This book is about the US, but we are witnessing that the hijacking of rights is not just a US matter. It has taken on a global dimension. I read the op-ed that you wrote a couple of months ago for Boston Globe on the Ukrainian fight for democracy, in which you stated that Putin’s model has been embraced by both his European and American acolytes. There are some facts to support this claim. When your book actually came out, the American Conservative Political Action Coalition met in Hungary. The co-director of the CEU Democracy Institute, Professor Renata Uitz, has referred to this event as the “Illiberals of the World Unite”. So how much could the hijacking of rights in the US have an impact upon Europe and vice versa? Do you think that this rule of law backsliding in the EU Member States has provided inspiration within the US? Do you think that these are parallel processes happening within their own contained contexts, or actually can we can see some similarities and both contexts are informed by each other?

I think it’s both. In my talk at the CEU to the students and others at the Shattuck Center, I mentioned that what’s happening is that some authoritarian politicians are having an influence on each other. I think that Viktor Orbán has had a major influence on Donald Trump in the US and on more. Indeed, I think that in the Orbán hijacking, which happened a good 12 years ago when Orbán was first elected, he began basically to take over the democratic process and diminish the rights and opportunities that people had to participate in the democracy, while at the same time using an electoral process to gain power. Orbán then learned that, basically, you don’t negotiate with your enemies. You just move ahead. You consolidate your power. You rewrite the Constitution if you can. You gerrymander the legislative process so that you can gain more seats. You get your cronies to buy various media outlets so that you can take over some and you can get more control over the media. You take over universities and use the funding that you get from the EU to basically thank your cronies for the work that they’ve done and allow them to become oligarchs. That’s an extreme version of it, but that’s basically what Orbán has done, starting 12 years ago. 

Orbán has had an influence on what we call the American populist movement, which is really the Trump movement, even though now it’s gone beyond Trump and It has many other participants in it. The relationship is clear, and it was demonstrated very clearly by the meeting of the National Conservative Political Action Committee in Budapest in May. 

It was at that time that Orbán spoke to the group and he said, “you know, when you take power, don’t follow someone else’s rules, follow your own rules.” That’s literally what he said. That is in fact, what’s going on right now on the American right wing.

Having said that, do I think that the US has been corrupted by Orbán? No, not necessarily. In terms of your questions about guns and abortion, there are very specific elements of problems in each country that give rise to these illiberal tendencies that we’re seeing today. But I hope that the contribution that our book makes is that it also shows rather definitively that it’s not just based on one poll, but two polls. And then it’s not just two polls, but it’s about town hall meetings around the country, even in very mixed areas like Phoenix. Arizona, Atlanta, Georgia, and Detroit. 

In all of these areas, the public actually subscribes to the very values underlying democracy and human rights and wants to see them implemented. 

Our book is kind of a set of demands that the public is making. It’s put in very nice academic terms, but it’s essentially saying “this is what we believe”. Why aren’t we getting the action we deserve? Then we analyze why the action hasn’t taken place. The reasons include some of these structural problems that I’ve talked about, as well as some of the political machinations of these right-wing leaders.  

They’ve stirred up much more domestic hatred. Hate crimes in the US have gone up during the Trump period. Certainly all of these shootings are horrific, but particularly the shootings that are hate shootings. We’ve had them at synagogues. We’ve had them in Buffalo, New York where African American shoppers at a supermarket were just gunned down by a person who thought he wanted to come and kill blacks. And there were Latino Americans in El Paso, Texas who were killed. I could go on and on. So what you have is the stirring up of racial animosity, which goes to the very heart of why American democracy has worked, because we are such a diverse society. And yet now the whole diversity concept is under attack. So we don’t just have the structural problems. We also have attacks that have been leveled by the populists against the underlying proposition that everyone is equal, non-discrimination should be the rule, and that people are entitled to due process of law, etc. That’s all under attack. 

So that’s not about Orbán necessarily. Although Orbán gave Trump and the American right some good ideas from their point of view. Putin plays a role here too. Putin basically thinks he’s legitimizing violence as a means of international relations. It’s a terrible moment if he succeeds because the rule of force is going to basically rule the world. But he’s not going to succeed. I think the West has been very good and not just the West but the democratic world, and even beyond democracies, at pushing Putin back. I think that what we have is Putin’s model of violence, which fits rather nicely in some ways to the American fertile soil for violence. 

One of the dangers in the US, of course, is that violence will increase to such an extent that some people say that we would have another civil war. I don’t believe we’re going in that direction. I think there’s too much public pressure in the opposite direction. 

But, anyway, I’m just using that as an example of why we’ve got to keep our eye on another autocrat – in this case, Putin – not just Orbán. There are interrelations, but in the end it’s all about the local societies. I have my own views about why Hungary was particularly susceptible to the Orbán model. But that’s not your question and that would take a longer time. 

Context matters, but when people see that in other parts of the world something similar is happening, they probably think that there is space for legitimation of what they are doing, as they are not the only ones. For the last question of this interview, I would like to refer directly to the previous question, but also return to the first question as well. 

As you said, civic education is the key and bottom-up forces are the most important. How can the bottom-up efforts to preserve and reclaim rights be globalized? Due to media and technology we are very informed nowadays and invested in what’s happening in other parts of the world. But the problem is that so many things are happening that, over time, it seems that people just stop caring because they are overwhelmed. How can we use this technology and the globalization of political discourses for the good purpose of reclaiming rights?

The global technology that we have, and the digital world that we live in has two faces. One face is the one you’re talking about, which we’d like to try to sketch out further and manage better to allow people to recognize each other, what their opportunities are, what they can learn from each other, and the ways in which people can be mobilized to claim their rights internationally. We’ve seen that the digital world has done a terrific job in mobilizing people. It happened during the Arab Spring period, which turned out to be tragically too short. That didn’t last for all kinds of reasons because of the strength of the autocrats who could come back and push it all back down. But the organization that took place on the ground was very much done through social media. The same has been true for many demonstration activities that have taken place in the United States and elsewhere. Social media has been very good because it’s also given voice to voices that otherwise wouldn’t be heard. These voices didn’t have access to being heard in the regular media, for examples in the normal newspapers or any other media that people sought access to in the pre-digital era.

So that’s the positive side of this. The negative side, which we know and increasingly see, is all of the disinformation and the way in which social media has facilitated the stirring up of animosities and hatreds. 

Many of the violent crimes that that we have talked about were stirred up in some ways by what people have read on social media. Certainly some of the white nationalists and the extremists who are going after African Americans and others in the United States are reading horrific information, which is disinformation. 

Even for something as basic as the election of an American President in 2020 was subject to disinformation about supposed election fraud, which was not found by any one of the judges or election officials who looked at this. So, the disinformation universe is threatening to overwhelm the positive face of the media and communications. Now, we’re talking here only about media and communications. I know your question is broader. What can we all do? How can we have a global environment in which human rights are further pressed ahead? Well, here, I guess what I need to do is rely on my long life and give you obvious examples of how things have, in fact, developed over time so that the human rights energy in the world, particularly among young people, but among all people I think can be understood.

I mean, you don’t have to go back terribly far in the United States to see that, even when I was growing up, if you travelled in the South you would see separate restrooms, toilets luncheons facilities, and whatever else. Every African American in the South, and in many parts of the North too, by the way, were segregated. They were segregated in schools and the whole system of the legacy of slavery in the United States weighed very heavily. 

In some ways, things never really got that much better after the Civil War. Then there was the civil rights revolution, which I was very much involved in as a young lawyer. Nothing was perfect coming out of that. But what came out of that was a whole set of laws. And this very much shows the connection between the bottom and the top. The civil rights movement was a movement of people on the bottom.

Hundreds of thousands of people were active in various places and states, culminating in the Voting Rights Act of 1965 and the Civil Rights Act of 1964 and various other acts along the way. The same could be said for the rights of women. If you go back to 1920 American women couldn’t vote. We still had this idea that somehow it was only men who should vote. It was just incredible when you think of it today from a contemporary perspective. But that all resulted from a huge amount of organization and pressure. And then there was a constitutional amendment in 1920 that allowed women to vote.

There are ways and means of bringing the energy of the movement to bear on the political system. It’s a long process. It doesn’t happen overnight, but it does happen. 

And I don’t think it’s inevitable that it happens. A dear friend, John Lewis, who is a former great civil rights leader in the United States said that democracy really isn’t not some state, some place, some wonderful garden. You can’t go and sit down and say “oh, we’ve reached democracy now! Everything is going to be fine.” He was like Ben Franklin in that sense, because he said that democracy is an act and it’s something that everybody has to keep pushing for and every generation has to play its part.

When you’ve lived this long life and you’ve seen all this progress, you realise that it doesn’t happen overnight. It’s important to take that perspective into account, but not the perspective that there’s always going to be progress because there isn’t. 

Right now, we’re in a period where we’re going backwards, but I believe that there is always going to be energy. I don’t think people will give up now. If they give up, that’s it. Then nothing else can happen. 

And sometimes that does happen in authoritarian countries, the people just give up. Not everybody, though, and as you must know from your own family background, I would think that there’s still energy out there. And it needs to keep finding its ways. It’s like water. Where can we find the little holes where we can go through? So that’s the philosophical answer. But it’s an answer.

This transcript has been edited for length and clarity.

In collaboration with Oliver Garner.

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