As I have commented in other diaries, the proposed Democratic position statement for the 2006 election is a good start, but does not go far enough in my opinion. I will support it as a necessary first step in the correction of a generation of poor governance, but additional steps will be necessary to move the nation in the direction of restoring our moral standing to hold up our government as a beacon of light, hope, and freedom to the public and to other nations.
Or at least take our minds off the interminable wait for indictments.
Since it is more responsible to propose something positive to the public rather than simply oppose current practices without proposing an alternative, I’d like to propose a series of mutually reinforcing reforms to address some of the underlying issues we face. This list is by no means comprehensive, but it represents steps in the right direction. I look forward to the input of others as we continue this conversation. The needs we must address as a nation as we recover from Republican mis-governance include:
Need to Provide Equal Protection Under the Law
Need to Protect the Right to Privacy and Public Right-to-Know
Need to Restore Integrity to the Election Process
Need for Available Health Care for All Americans
Need to Restrict the Abuses of Power by Corporations
Need to Preserve the Natural Resources of the Nation for our Posterity
I explore each of these needs and how Progressives might address them below.
Need to Provide Equal Protection Under the Law
The legal erosion of women’s rights – and the concomitant social contraction of what the role of women in society should be – illustrates that there is a need to codify the provisions for equal protection under law for all Americans in a fundamental way that cannot be eroded by future conservative presidents or congresses. It is time to finish the job with the Equal Rights Amendment. The wording, as passed a generation ago by 35 of the 38 states needed for adoption, is eloquently simple:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
A good overview of the ERA is available here.
A seven-year deadline for adoption was provided in the congressional bill forwarding the amendment to the states, this expired in 1982. However, efforts are being made to still get three more states to pass the amendment since 1992, when the “Madison Amendment” to the constitution was adopted 203 years after it was first proposed:
A “three-state strategy” for ERA ratification was developed after 1992, when the “Madison Amendment” to the Constitution was ratified 203 years after its passage by Congress. Acceptance of this ratification period as “sufficiently contemporaneous” led ERA supporters to argue that Congress has the power to maintain the legal viability of the ERA’s existing 35 state ratifications. The ERA’s time limit is open to change, as Congress demonstrated in extending its original deadline. Precedent holds that rescission votes are not valid. Therefore, Congress could accept state ratifications that occur after 1982 and keep the existing 35 ratifications alive. A bill in the 108th Congress (H.Res.38) stipulates that the House of Representatives shall take any necessary action to verify ratification of the ERA when an additional three states ratify.
The legal analysis for this strategy is outlined in “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States” (William & Mary Journal of Women and the Law, Spring 1997). The Congressional Research Service has concluded that acceptance of the Madison Amendment does in fact have implications for the three-state strategy premise. Since 1995, ratification bills have been introduced in six of the unratified states: Florida, Illinois, Mississippi, Missouri, Oklahoma, and Virginia.
A push for the adoption of the Equal Rights Amendment would put the public on notice as to which end of the political spectrum has human rights and freedoms at heart, and which end is held hostage by religious zealots and special interests. Potentially coinciding with the reversal of Roe by a supreme court driven to the far right by Bush’s nominees, this effort could be part of the backlash that helps the country turn the corner in a progressive direction.
We may well be able to pass the ERA as it stands fairly quickly, since the precedent in the Madison Amendment case would be hard to turn around 180 degrees to outright reject the ERA, even for the court with Bush’s appointees on it. By the way, the “Madison Amendment” refers to the following:
Amendment XXVII
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
While some courts have found that the ERA does not protect gay rights, its shortness leaves room open for interpretation (especially in conjunction with other amendments) by a future more liberal supreme court that could choose to protect gay rights, as was the case in Canada. I don’t think we want to wait that long, but I’m going to leave the debate open to the community here as to the best approach for protecting gay rights – the courts, the constitution, through laws. I’m not sure which approach would be most effective and/or most feasible.
The passage of the Madison Amendment, however, seems to have potentially breathed new life into the ERA, so I think it’s worth going for the ERA both on principle and because it might actually be lower hanging fruit than we had thought.
Need to Protect the Right to Privacy and Public Right-to-Know
There is a serious need to re-establish the right to privacy in law following the erosion of privacy in financial information, medical information, etc. with the advent of computerized and interconnected databases. The PATRIOT Act only further eroded the right to privacy. While the courts have supported the notion that a right to privacy is implied by several existing amendment, such a “penumbra” protection is ill defined and subject to restriction by any of the branches of the government. A more explicit statement of the right to privacy is needed, including such issues as medical privacy, genetic surveillance, public video cameras, internet privacy, electronic surveillance of communications, the right to travel freely without a national ID card, and on and on and on. The problem is how to encapsulate it succinctly into a constitutional amendment… Or to get a court that reads the current Bill of Rights as providing more than a “penumbra” protection for privacy.
Privacy issues are covered by sites such as Privacy International, and I would encourage people to explore their site to see both the variety of ways in which the right to privacy is being eroded in the US and abroad and actions which might be taken to ensure such rights.
While developing efforts to protect personal privacy, there is also a need to protect the public’s right to know – the government is increasingly secretive in its actions, and it is only when the public has a clear window into the workings of government that abuses can be identified and rooted out promptly. These two rights are like two sides of a coin, because even the most well intended law, like the Freedom of information Act, has proven itself no match for the government’s ability to stir up restrictions on freedoms using national defense as a cudgel.
Need to Restore Integrity to the Election Process
In order to restore public faith in the electoral process and encourage public participation in elections, the following reforms should be enacted:
Elections will be held over a three-day period, with polls opening and closing concurrently across all time zones. For the Eastern time zone, polls will be opened from 3 PM Thursday to 3 PM Sunday; for the Pacific time zone this would correspond to noon Thursday to noon Sunday. Workers cannot be scheduled to work all three days of this election window; they must be given off either Saturday or Sunday to go to the polls.
(This change will allow greater access for working people to the polls, and will prevent early announcement of election returns from affecting turnout in western regions of the country. Interestingly, it may mean no professional sports on the Sunday of the election.)
Public funding of federal elections will occur with each candidate receiving a set cash allotment based on the most recent census results for that congressional district or state. In order to access public funding, third-party candidates may present petition signatures to the secretary of state representing 8% of the population of a district (or each district in the state).
The carrot or the stick: Do we want to make voting mandatory? Do we want to offer some kind of incentive for voting, like a tax rebate? (If you’re on record as voting, you’ll be issued or mailed a voucher to include with your tax return: But how to prevent fraud?)
TV and radio stations must allocate a minimum number of hours to broadcasting candidate debates as part of their “fee” for the use of the public airwaves. Commercials may not interrupt such broadcasts, but “sponsorship / underwriting” of the debates is allowed (as is typical for programs on Public Television).
Ballots are automatically impounded after any election closer than 10% difference.
Recounts to be performed by an independent commission of elected officials.
Machines must generate a paper trail in addition to an electronic tally. In the event of discrepancies between the two when it cannot be verified which tally is accurate (printers can jam or malfunction, too), the paper trail shall be taken as the official vote count.
Do we want to look at proportional representation? I’m very open to the idea, but need more information from folks in areas where it’s in use: How does it work in practice? Any problems we need to avoid?
How do we wrap all these specifics together with a bow and present it to the American people?
Need for Available Health Care for All Americans
While laws are nice, I believe a civilized nation should express in its constitution the values of community “that made this nation great” – so why not a constitutional amendment? Conservatives will say “Responsible people take care of themselves.” To which I answer defiantly: Selfish people take care of themselves. Responsible people take care of each other! Do we want to see a Katrina-like response by the federal government to a bird flu pandemic? Is dealing with such threats less important than making a power grab for the oil fields of the Middle East? As progressives, is that what we stand for?
Amendment No. NN to the Constitution of the United States
Protection of the Public Health AmendmentPreamble
The health of the citizens of the nation being essential to the physical, economic, and general welfare of the nation, and a responsibility that civilized people accept as a part of living in society with their neighbors, access to medical care shall be provided in perpetuity by the government of the United States.
Section 1
The government shall provide access to medical care for citizens of the nation, including the prevention, treatment, and tracking of disease, and to encourage the adoption of practices beneficial to the good health of citizens.
Section 2
Congress may pass statutes as appropriate to implement and enforce this amendment.
Citizens, individually and collectively, shall have an inalienable, enforceable right to petition the courts for themselves and on behalf of their posterity, in cases where government inaction poses a threat to the continued health of the nation.
Need to Restrict the Abuses of Power by Corporations
Thom Hartmann has provided in-depth coverage of this issue. If you’re totally new to the discussion, the links at his site are a good introduction to the subject.
Basically, we need to legally challenge the notion of corporate personhood on the grounds that the Supreme Court’s 1886 decision (Santa Clara County v. Southern Pacific Railroad Company) did NOT lead to such legal protection, and that such misreading of the case law is in error. The concept of corporations as “persons” with extensive rights and fewer legal responsibilities than flesh-and-blood people has led to no end of mischief in the following 120 years. Many of the problems we face, from elections being bought, to out of control lobbyists, to environmental, privacy, and public health issues are caused or exacerbated by the inability of the government to effectively rein in large corporations. Corporate personhood is a legal privilege that is granted by the people, through their government, for the purpose of effecting some social good in a cost-effective manner. It is not an inalienable right of corporations to exist. They are not discussed in the constitution, and did not have many of their current rights for most of the first century of this nation’s history.
If a corporation does not act in the public interest, it is the right and obligation of the public, and their representatives in government, to rein in or abolish the corporation. Is there justice in a nation where we annually kill many poor (largely minority) people for murdering one or two people, but allow tobacco corporations, for example, to continue to exist as entities even though there is abundant evidence their product kills millions? If the tobacco industry were a nation, we’d compare it to Pol Pot’s Cambodia or Idi Amin’s Uganda. And that is only one example – how about the chemical industry? If corporations had to look over their shoulders, we might have far less pollution and far fewer risky products on the market, or at least much more honest labeling and advertising.
We can propose a constitutional amendment here, or laws in the interim. We might make the reversal of subsequent misguided interpretations upholding corporate personhood the progressive equivalent of the litmus test that the right has made of Roe v Wade for the approval of Supreme Court justices. Why should the right be the only political force allowed to wave the bloody shirt to stir up a battle?
Need to Preserve the Natural Resources of the Nation for our Posterity
The group Defenders of Wildlife have a very interesting discussion of proposals to amend the constitution to provide explicit protection for our natural resources. They point out that a number of nations have provided for environmental protection in their constitutions – in fact, France recently adopted such an amendment, in addition to the nations they site on their web page. Also, a number of states have adopted provisions in their state constitutions to protect the environment.
So why is a constitutional amendment needed? DoW puts it like this:
Relying on ordinary statutes alone is insufficient because normal legislative processes are systemically biased in favor of current benefits as opposed to the long-term future. Common law is also insufficient. It falls far short of addressing the comprehensive need for protecting species and habitat. As for our Constitution, as currently written and interpreted it overwhelmingly favors other values, especially private property rights.
A constitutional amendment will provide limits to the degree which a future conservative administration might backpedal on this issue – as we have seen in the last five years, fundamental environmental laws that we never thought would be open to question are being eroded, from the Endangered Species Act to the Clean Air Act and the Clean Water Act. This erosion benefits the wealthy few at the cost of not only our environment, but also public health, through increased cancer cases, asthma, etc. A burden that falls most heavily on the poor, who cannot afford to move away when such a facility is sited in their community and who may not be able to afford legal representation to fight for their health.
Amendment No. NN to the Constitution of the United States
Protection of Natural Resources AmendmentPreamble
The preservation of natural resources, including the air, water, land, flora, fauna, and the productivity thereof, being essential to the life, health, and general welfare of the citizens of the nation, shall be protected in perpetuity by the government of the United States.
Section 1
It is the responsibility of the government to provide wise stewardship of natural resources, including the prevention, and where necessary repair, of the deleterious effects of pollution or unsustainable use upon the common inheritance of the nation, and to encourage the adoption of practices beneficial to the protection of said resources.
Section 2
Congress may pass statutes as appropriate to implement and enforce this amendment.
Citizens, individually and collectively, shall have an inalienable, enforceable right to petition the courts for themselves and on behalf of their posterity, in cases where poor stewardship poses a threat to the continued health of the natural resource(s).
Some comments on the above:
Section 1 puts the government on notice that it must address environmental issues in both a proactive, and where necessary reactive manner to maintain the integrity of the resource, independent of economics. Section 2 addresses the issue of “standing” in environmental cases: a court cannot say that a person or group is not affected by a decision affecting the environment or a species and so does not have “standing” to bring suit. We are all part of the interdependent web of life, and while a damage to someone may appear to be a “de minimis” harm, it is demonstrably incorrect to say we are unaffected by environmental pollution, even on the far side of the earth. And today’s de minimis harm may turn out to be tomorrow’s tragedy, as the histories of the pesticide and herbicide industries show, and as the issues of pharmaceuticals in wastewater is becoming recognized to be. This amendment assures there are doors of access readily available to effectively address such discoveries in a timely manner, if congress and the executive are sluggish in acting.
Note that the public health and natural resources amendments are mutually reinforcing, as in many instances practices that harm the environment also threaten public health and vice versa. Even if only one of these amendments were to pass, the benefits of the other might still be obtainable through legal action. If someone out there can propose a succinct way to address both issues in a single amendment I’m certainly open to that idea, although I like the separate environmental amendment as it gives legal standing for lawsuits to protect species and resources even if there is no public health threat involved.
Interestingly, it is possible to argue that the public health amendment might be used to argue in favor of a dam across the Grand Canyon, for example, to provide power and water to the people of the Southwest, while the natural resources amendment would argue against such a dam. I’d like to find a way to avoid this kind of conflict, if anyone out there has a suggestion.
One final thought
If you’re thinking I’ve about gone as far out on an idealistic limb as it’s possible to go, let me tell you that, in fact, I consider even these proposals to be short of everything we need. Consider just two needs that I’ve totally ignored in the interests of “practicality”, and then tell me I’ve gone as far as it’s possible to go:
The Need to Abolish Nuclear Weapons / Recover & Dismantle Old Weapons
The Need to Abolish War / Amend Constitution to Renounce War (a la Japan)
I’ve also not touched at all on the importance of the commons, those areas of our existence that are neither the realm of government nor private ownership – which have far too little legal representation or protection.
I’ll be back with more ideas as I have a chance to develop them.
