Examining January 6th: Rights, Human Rights, and the Human Rights "Age".

• Author: Dorfman, Ben

By the time readers get this, events may have faded partially from view. Still, I would imagine that not a small number of us were shocked by the events unfolding at the American Capitol on January 6th. A short recap:

* First, among the many theories promoted by, if not the Trump government, then Trump himself, were claims made immediately in the wake of 2016 that the President lost the popular vote due to illegal ballots and significant voter fraud. In a November 27th tweet--iterating claims Trump would make a number of times--the then-President-Elect argued that if one deducted the "millions of people who voted illegally," he would have beaten Hillary Clinton handily, by which he meant again in the at-large vote as well as the Electoral College. (1) It's a controversial point around American elections; can minority Presidents be said to represent the popular will? Some accept the idea in the face of American federalism. (2) For Trump, however, it was taken as a threat to his legitimacy. When George Bush lost the popular election to Al Gore, it was by half a million votes. When Trump lost to Clinton, three million more Americans voted for the person who didn't win as opposed to the one who did. Only skullduggery could be behind it, Trump maintained--a point which he would insist on, come what may. (3)

* Still, faced with skepticism towards such claims, post-the-Inauguration, Trump instituted a presidential advisory commission on electoral as a manner of bolstering his arguments and addressing theoretical irregularities in America's voting system. (4) However, finding few such things, the commission was abandoned in January 2018, with several members going public to suggest the project as problematic from the start. "It was the most bizarre thing I've ever been a part of," one member argued, as what they were doing except the President's bidding was unclear--and even in that context, few were clear about the mandate. (5)

* With the run-up to 2020, however, the issue emerged again. On August 17th, the President said that "the only way we're going to lose the election is if the election is rigged." (6) Of course, investment in such discourses may have been heightened due to Covid where, in the face of the fact that movement in public space need be limited, a number of states expanded access to absentee voting and mechanisms like vote-by-mail. Indeed, partly because such methods were widely used, tallies of results took longer with it but a few days after the election that outlets first declared a winner. (7)

* Now, doubt about the results was likely to come in any case as, throughout the campaign, Trump had been cagey about whether he would accept a defeat. (8) Still, any daylight was seen as a massive crack, as this gave way to a month and a half of litigation, Trump pressuring officials, claims he won by a "landslide," and, at its most extreme, arguments from his lawyers that the companies who made voting machines were linked to Hugo Chavez and the Clinton Foundation. (9)

* Naturally, the coup de grace came on the day Congress should meet to certify results (January 6th). Around midday that day, Trump held a rally at the Ellipse in which he claimed that unnamed forces "had rigged an election like...never...before." In the face of ne'er-do-wellism, he said, his supporters should go to the Capitol and "fight like hell." (10) Now, of the 30,000-plus Trumpists gathered in Washington that day, most didn't take him literally; they were content to make their voices heard through generalized freedom of assembly. However, roughly a thousand did, and between 1 and 2 p.m., the two faces of the Capitol were occupied, and the building was breached. By the mid part of the afternoon, the House and Senate were evacuated as pro-Trumpists ransacked offices and even occupied the well of the Senate. Indeed, over and above violent battles with police, as it came out later, things turned quite dark. Some protestors sought to "hunt down" and "hang" Vice President Mike Pence and Speaker of the House Nancy Pelosi, and, in the commotion, five people were killed. (11)

Now, the shock, such as it was, came at a number of levels. For one, while the U.S. has a history of issues with inclusion (we all know the histories of segregation and slavery), the country is one of the world's oldest democracies and, for many, a premier symbol of international liberty. As the historian Gordon S. Wood notes, the "experiment in [American] republicanism" gained influence in the 1780s, with the nation's reputation as a democratic leader having persevered up to the present day." The American "empire," Wood maintains, concerns "liberty;" it's the nation's greatest export. (12) Might January 6th put that in doubt? If Americans couldn't pull off an election sans violence, what did it say about the nation, if not democracy itself? As several outlets noted, the U.S. fell victim to the kind of issues oft-associated with nascent republics and developing states. (13)

Then, of course, there were the divisions within the nation. Culture wars aren't new. They were fought during Vietnam, around bussing some years later, as well as anytime anyone brings up issues such as abortion and/or guns. (14) Still, not only are there arguments over values, but it seems that today, Americans live in different realities. Few Democrats saw fraud; 95 percent saw Biden's election as legitimate. However, one poll argues that 72 percent of Republicans think Biden was illegitimately elected, and another that 52 percent think Trump de facto won. (15) The country doesn't just appear to be, but is at war over truth: what drives the country, do its systems works, and is there's a "cultural revolution" underway to undermine American life (Trump's assertion on Independence Day 2020)? (16) We live in "truth silos," it's been claimed. (17) The center-left functions with one set of facts while the center-right operates via something totally else.

Nonetheless, there may be further dimensions to what played out on Capitol Hill on that day--again, perhaps like alongside Kent State (1970) and Rodney King (1991), constituting one of America's more complex days. That's to say that, within the matrices of each sides' views or claims, we may have an instance of "dissensus," or, as the political philosopher Jacques Ranciere developed it, not just conflict but argument over what's "given," (18) i.e., what societies debate. Generally, however, they do so over concepts on which they agree. For example, for both Democrats and Republicans, democracy is important. At the level of claims, anyway, though the appeal might be to the American Constitution, the Universal Declaration of Human Rights (UDHR, 1948) may capture the idea when it says that "everyone has the right to participate in the government of his country, directly or through freely chosen representatives." (19) Free speech has meaning as it's a democratic tenet; it's hard to run a republic minus freedom of assembly or expression. (20) Indeed, invoking the UDHR again, "self-realization" may also be a point as the free exchange of ideas concerns the personality's "free...development." (21) Again, fraud claims gained no official credence--America's court system universally threw them out. (22) Still, it may well be the case that more than a few rioters saw themselves as at the Capitol that day to defend the "rights of man."

Now, it's curious, that--if one squints, one can almost read "human rights." Now, I'll immediately say with "human rights," I don't mean support for the UN, Organization of American States, or other "internationalisms." Rather, I rather mean privileges as "universal" or derived from "humanity alone." (23) In this context, human rights explicitize inalienability--that rights shouldn't be contingent on "judicial announcement, or some act of parliament." (24) Human rights involve us with "international imagination[s];" generalized ideas of sympathy and senses of global good. (25) However, they also concern claims present in a range of national constitutions--that individuals are "created equal" and all should be seen and heard. That's to say that there's a zone between the national and international in which we imagine privileges as "global" in the sense of native to all. (26)

The background for this concerns notions of an "age" human rights. For roughly two decades, it's been argued we live in the times of rights as "last utopia." (27) It's a la Fukuyama: that the East Bloc fell because it only provided "defective recognition," and, come the Cold War's end, global sought a new raison d'etre (28) As George Bush, Sr. put it at the end of the post-Cold War world's first international action, come the "new world order" people's rights would be defended at least minimal sense (what lawyers call jus cogens) (29) Here, rights equate with "humanitarian intervention" or "responsibility to protect." (30) That exists. However, it may be but one part of the picture. "Human rights" rights cut across the discourses of the "left" and the "right," and, as Costas Douzinas notes, they link the discourses of the "pulpit" and the "state." (31) Human rights are present when the gilet jaunes hit the street, and they're also claimed when Antifa establishes "autonomous zones." (32) Human rights link the vocabularies "developing world" with the "liberals of...Manhattan," and they're the mantra of corporate boardrooms as well as the Zapatistas. (33) For many, this designates a "culture" of rights: our "surroundedness" by rights claims due to the extensive dominance of human rights "talk." (34) Another has called this human rights' "lifeworld": our maintenance of intuitive relations with ideas of privileges made deeper by the "end of history." (35)

In this sort-of thought piece, which is partly about January 6th but also much else, I'll to make two moves: first, we can think human rights via international law (global covenants, treaties...