Right Turn Only?

Most Constitution-watchers agree that a successful call for a constitutional convention is unlikely in the foreseeable future, since it would require a super-duper majority of Congress to agree on something. If that happened, our elected representatives would probably be too enthralled with the sight of all those flying pigs out the window to pay much attention to business anyway.

Most progressive legal scholars think that’s just as well. A constitutional convention, they believe, would be a jurisprudential disaster. The Bill of Rights would be up for grabs. The essential function of a constitution–restraining the power of the majority and its elected representatives–could easily be thrown out the window by a bloodless majoritarian coup. The only serious proposals for a Constitutional Convention are being made by the Far Right, and include such unnverving suggestions as the abolition of the income tax, the restoration of a property qualification for voting, the establishment of Protestant Christianity as the national religion, the elimination of the “natural born citizen” requirement for the presidency, the Right to Life Amendment, the Defense of Marriage Amendment, and the elimination of birthright citizenship.

So the progressive response to calls for a constitutional convention has been a simple and oft-repeated “no.” While not unreasonable, that leaves the Left with nothing intelligent to say in the admittedly unlikely event that a constitutional convention actually happens.

Progressives need an agenda for a constitutional convention, for two reasons. The first is the reality of any negotiating situation: the party that begins with the status quo as a negotiating position is


to end up with less. The only way to have even a chance at maintaining the Bill of Rights in its present shape, if a Constitutional Convention actually happens, is to demand something that will be perceived by the other side as even more radical.

And the second is that the Constitution in its current form really could use some changes.

First, of course, is the Equal Rights Amendment, which needs no introduction and very little comment. Illinois and several other states have such amendments in their constitutions and have used them quite successfully to combat sex discrimination through state litigation.

Next is the power to initiate military action and international alliances. Currently, the President has the power to commit troops to military action, but only Congress can declare war or vote funds for it. The technology of both communications and warmaking has far outstripped this anomalous political mechanism, set up when the speed of the horse and the sail was the limiting factor for both. The War Powers Act, enacted to resolve this dilemma, may itself be dubiously constitutional. Similarly, no treaty is valid unless ratified by Congress, but the President can accomplish by executive order virtually everything the treaty-making power can achieve.

And these awkward dilemmas are merely a special case of the greater conundrum bequeathed us by the Framers–when does the system of “checks and balances” among the three branches of government encroach on the “separation of powers”? This is no mere academic debate; it was crucial to the Watergate proceedings, for instance. What did the federal courts have the right to order the President to do? Could the executive branch resist the power of the judicial branch to demand evidence? And so on.

Next is the equally awkward dilemma woven into the fabric of the First Amendment, between “free exercise” of religion and “no establishment.” As a practical matter, the Supreme Court has dealt with it so far by importing into the public realm as “secular” observances, piece by piece, one ritual or artefact of mainstream Protestantism after another, under the “free exercise” rationale, while barring similar concessions to other religions under the “no establishment” clause. It’s okay to require businesses to close on Sunday, because Sunday isn’t a religious day of rest any more, it’s a secular observance. It’s okay to make Christmas a national holiday, for the same reason. It’s even okay to display statues of the Virgin Mary, the infant Jesus, and miscellaneous angels and shepherds, on public property, so long as they are, as constitutional scholar Alan Dershowitz says, “flanked by two plaster animals in sufficiently bad taste.” (He calls this the Pink Flamingo Rule.) But it’s


okay for a federal contractor to provide that all its Jewish and Seventh-Day Adventist employees automatically get Saturdays off, when its other employees have no such “privilege.” That’s discrimination against the others on religious grounds.

Then there is the Second Amendment, dealing with the right to keep and bear arms. Much of the current dispute about its meaning (from the point of view of an ex-English teacher) results from the fact that the nominative absolute (“…a well-regulated militia being necessary…”) has dropped out of use. So the Second Amendment needs to be rewritten in modern grammar. Some gun control advocates find such a prospect terrifying, but it is difficult to conceive of any way the Amendment could be redrafted that would be any


than the way the NRA and the Supreme Court interpret the current version. (Well, okay, incorporating into the Second Amendment the Kennesaw, Georgia ordinance requiring every citizen to own a firearm could be worse…)

Additionally, there are the affirmative rights not clearly protected by the Constitution, at least as read by the current Supreme Court. Most crucial would be an unambiguous enactment of a right to privacy as such–a limitation on the right of state and local government to intrude into people’s personal lives. The Warren Court found this concept obvious, and used it to protect the right of married and unmarried people to procure and use contraception; the Rehnquist Court eroded it by holding that a state government can forbid consenting adults to engage in “sodomy” in the privacy of their own bedrooms. The Roberts Court seems a bit squishy on privacy too.

    Education has never been held to be a fundamental right.

A state or local government which is unwilling to provide equal school facilities to all races and nationalities can stop providing any schools at all (as a couple of states and several localities did in the ten years following the Brown v. Board of Education decision.) And there is no constitutional ban on governmental discrimination against the poor as such, so that public school systems which (like banks) provide adequate resources only for those who don’t need them, are under no constitutional mandate to do otherwise.

Even more startling from the point of view of classical political theory, the Supreme Court has stated in DeShaney vs. Winnebago County (1982) that state and federal governments have no constitutional duty to protect the citizen against private violence. (But, presumably, any protection it does provide must be equally distributed among racial, religious, and ethnic groups.)

Beyond these specific shortcomings, there is a basic flaw in the Fourteenth Amendment and the legislation implementing it, which forbid violations of individual rights only where they involve inequality and discrimination against specifically defined groups. Thus, the rationale for banning sexual exploitation on the job is that the boss who requires sexual favors from one gender but not the other as a condition of advancement is discriminating against people of the former gender. This rationale would leave the exploited employee with no recourse against sexual extortion from a bisexual boss.

Similarly, state-run colleges and universities that are not permitted to discriminate by reason of race, religion, sex, or handicap, can quite freely discriminate on the basis of income and socioeconomic class. There is no right to be free from sexual extortion on the job; there is no right to education as such. There is only the right not to be extorted or barred from school by reason of race, religion, etc.

In short, we need to re-examine, from the ground up, the whole notion of “fundamental rights.” The “equal protection” model, at best, sets up a lowest common denominator which, on occasion, can quite legally be set at zero. And, by defining a limited number of unacceptable bases for distinguishing between applicants for a particular benefit, it sets up an inevitable conflict between the groups specifically protected from discrimination and other, often equally disadvantaged, groups with no such protection. The result is the unedifying spectacle of a whining contest, to determine who has suffered the most discrimination most recently and is therefore most entitled to redress.

For instance, the federal courts have held that an otherwise perfectly qualified person can be denied admission to professional school or a professional license because of being fat, having a “sloppy personal appearance,” or having an “abrasive personality.” The only bases for legal attacks on such policies have all had to do with sex discrimination, and were available at all only because so far, the only victims have been female. The courts have, not unreasonably, responded that they were offered no evidence that a fat, sloppy, or abrasive male would have been treated any differently. Absent proof of ethnic or sex discrimination, they were powerless to act. More recently, efforts have been made to give obesity the legal status of a disability, thereby placing fat people in a group with at least some official protections. Such jerry-built rationales should not be necessary. Once the bona fide occupational qualifications for a particular license or position are established, anyone who is denied access for any other reason (other than “we’re not hiring right now” or “we already hired somebody else”) should have a legally cognizable claim. That is, people should have a fundamental right not to be denied employment except for bona fide occupational or economic reasons.

A clearly defined system of fundamental rights to which all citizens and residents of the U.S. are equally entitled, would obviate many of these problems. Likewise, a clear delineation of the ways in which government may and may not forbid violations of individual rights by other individuals and private organizations is crucial to the continued viability of our polity.

All of these omissions could be remedied by a good job of redrafting. An even better result might be achieved by taking seriously the Preamble to the current constitution, which mandates the government, not merely to “provide for the common defense” and “insure domestic tranquility” but also to “promote the general welfare.”

These suggestions are not intended to be exhaustive. On the contrary, they should be a beginning of discussion. What matters from our point of view is that there should be some progressive agenda for a constitutional convention, to which serious study and thought has been devoted. There may be spinoffs and fringe benefits to the proces of debate and research setting up such an agenda. Much of it, for instance, could also be a basis for a legislative agenda, or for rewriting or amending state constitutions. We have nothing to lose and much to gain by doing it, even if no constitutional convention is ever called. And if, against all expectations, such a convention is convoked, we will not be caught with our progressive pants down, and may even achieve some of our own goals.

Red Emma

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