The Protection of Fundamental Human Rights as a Vehicle of Integration
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When independent political entities, or states, undertake to create some sort of closer union—be it a confederation, federation, or supranational community—a process of integration is set in motion. This process will vary in duration depending on its ultimate goal, which may itself change during the process. Experience seems to show that the question of common values protected by the legal system cannot be avoided if the process of integration is to continue towards the creation of a union to which all citizens feel a common allegiance. In the United States, we recall, a civil war was fought over what was basically a human rights issue: the question whether there could be different positions on slavery in the various states of the union. In Europe, of course, no civil war as such has been fought over purely human rights questions, but the violations of fundamental human rights in the last two World Wars did help lead Europeans to realize the need to commit themselves to a declaration of fundamental values which all European nations should aspire to protect. Fundamental human rights can express a common set of minimum standards below which human rights conditions must not fall anywhere in the developing union of states. This presupposes, of course, the condition that these rights bind all public authorities in the union, for only then will fundamental rights have a clear unifying and integrating impact. It is one of the dominant themes of this chapter, however, that the application of uniform standards protecting fundamental rights to all public authorities (local, state and federal) may be a goal attained only after a long and difficult process of legal and historical development. In the United States, we will see, the Supreme Court did not issue any important opinion in the area of freedom of speech until 1919; it did not even hint that the free speech standards it was elaborating for the Federal Government might be binding on the states until 1925; and it did not really begin to apply such standards to the states until 1931, sixty-three years after the adoption of the fourteenth amendment. Similarly, in the field of criminal procedure, the Supreme Court reviewed only a handful of important state cases prior to World War I, and began to develop a significant jurisprudence only after 1936. It is another of the themes of this chapter that throughout the course of the integrative process, the level of applicable minimum human rights standards may vary considerably, from time to time, from place to place, and from one class of rights to another. In our primary example, the United States, the national minimum standard for freedom of speech on political matters in public places is high, although some states place their own standards even higher. Where arguably obscene speech is involved, however, the national minimum standard has waivered. Before 1957 there was no such standard. In that year a low minimum standard was introduced. By 1964 the standard had crept up to so high a level that little or no discretion was left to the individual states, which were left free to bar only the most blatantly pornographic materials. Then in 1973 the federal standard was lowered somewhat to allow states to prosecute a slightly broader category of obscene material if they wished to. It is interesting to note in this regard that a number of different minimum standards may even exist simultaneously in the same area of law. Thus the U.S. federal minimum speech protection standard in the area of libel is high where speech about a public official is involved, but lower where speech concerns a private citizen. In Europe, similar fluctuations in attitudes toward human rights protection can be detected. Germany, one of the earliest European experiments in unification, provides us with comparable examples. The first attempt to introduce a federal Bill of Rights in Germany was in 1848, when the draft Constitution adopted by the Paulskirche Parliament following the 1848 Revolution included a catalogue of fundamental rights, made with the clear intention of unifying particular human rights conditions in the different German states. But the failure of the Revolution also meant the end of the 1848 Constitution and of its famous Bill of Rights. The two succeeding federal constitutions—the Constitution of the North German Confederation of 1867 and of the Reich of 1871--contained no Bill of Rights, despite the strong demands of some liberal depu- ties from those states which offered he least protection of rights under their state constitutions—such as the two Mecklenburgs—that such federal guarantees be introduced. The main justification for such non-inclusion was clearly the desire to protect the individual states of the union against the far-reaching changes in their internal systems which would have been brought about by a federal Bill of Rights, for although most states had their own constitutional Bill of Rights, by the mid-nineteenth century the level of protection and the legal remedies available varied greatly from state to state. Despite the lack of a federal constitutional Bill of Rights, however, several important federal statutes adopted between 1867 and 1874—concerning the free movement of persons, access to industrial activities, and the freedoms of religion and of the press—soon created a subconstitutional system of federal guarantees for fundamental freedoms. It is worth mentioning that the extension of protections to the freedom of movement, as well as to the right to settle and undertake industrial activities under the same conditions in all the states of the federation, was a step very similar to the one taken by the Member States of the EEC when they adopted the Rome Treaty. From 1919 to 1933, and particularly after 1949, the protection of fundamental rights in the German federal system was assured through a Federal Constitutional Bill of Rights binding federal as well as state organs.
Source Publication
Integration Through Law: Europe and the American Federal Experience
Source Editors/Authors
Mauro Cappelletti, Monica Seccombe, Joseph Weiler
Publication Date
1986
Volume Number
1: Methods, Tools and Institutions—Book 3: Forces and Potential for a European Identity
Recommended Citation
Frowein, Jochen Arb.; Schulhofer, Stephen J.; and Shapiro, Martin, "The Protection of Fundamental Human Rights as a Vehicle of Integration" (1986). Faculty Chapters. 1400.
https://gretchen.law.nyu.edu/fac-chapt/1400
