Fixing America
The greatness of America lies not in being more enlightened than any other nation, but rather in her ability to repair her faults.
— Alexis de Tocqueville
How We Fix the US Constitution.
I built and fixed housed for over 25 years, raised a family and now I fix and upgrade personal computers and networks, so I love fixing things. There’s a quote on my website:
“I like fixing things,” he said as he worked. “The world is always breaking, here and there, this way and that. Fix a bit of it, and I feel like I’m helping.”— Bruce Coville
In Heidi Schreck’s one-woman play, “What the Constitution Means to Me” she hammers down on how the Constitution has failed all of the women in her family from her Grandmother on, seeming to be a document she now realizes that it was “designed to do from the beginning, which is to protect the interests of a small number of rich, white property owners”. And yes, from slavery to voting rights to civil rights that seems to be where it comes from. It was so flawed the entire country fell into Civil War to fix one of the Original Sins of the US Constitution:
Article I , Section 2 House of Representatives, Clause 3: Seats
“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons”
3/5ths . . . an entire race consigned to a fraction.
Heidi Schreck comes at this from her own grandmother who married a man who beat her and raped the children, a woman with no recourse in the law. Then she recounts her own sexual encounters laced with “centuries of fucking inherited trauma.” until she comes to the truth:
“The Constitution isn’t here to protect you; it’s to protect them and their property. You used to be the property. One day, you might be again.” — David Cote, Observer.com
Before 2016 I would have been on the side of the Constitution being a perfectable document that ultimately “bends towards justice.” But we now know that isn’t always right. Yes, the tools are there, the Rule of Law, but democratic values have to be alive in the population to use them to bend toward justice. With an autocrat like Trump temporarily at the wheel, the arc seemed to have bent back on itself, empowering more and more conservative Supreme Court and US courts of appeals and US district court and other judges to take rights away that were once considered settled law even at their confirmations.
Tools for Tools
But like any tool, the US Constitution can at times seem not to be a force for good. It can be used for other things, to deprive innocents of life, Liberty, and Property, it can empower one race and sex over all others as it has been and it can make the minority who created it rulers over all others:
“[A]n American system of government that was meant to preserve minority rights has instead ended up enabling minority rule.” — Gautam Mukunda
So what is good about our Constitution? At its inception, it gave too little power to the Federal government, made it too hard to add changes (amendments), and left out all but propertied white men in its protections. Few actual rights were enumerated, thus the Bill of Rights that we keep adding to, bit by bit.
And yet the preamble says that the document will “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our posterity.” Has it really? Seems lately like there’s a lot less tranquility and a lot more gun-totin’ defense than is needed.
So like any tool, maybe it can be . . . sharpened. Like the appointee on the show West Wings who wrote a blurb on a dust cover for a book about reparations for slavery:
Jeff Breckenridge: You got a dollar?
Josh: Yeah.
Jeff Breckenridge: Take it out. Look at the back. The seal, the pyramid, it’s unfinished, with the eye of God looking over it, and the words annuit coeptis — he, God, favors our undertaking. The seal is meant to be unfinished, because this country’s meant to be unfinished. We’re meant to keep doing better. We’re meant to keep discussing and debating. And, we’re meant to read books by great historical scholars and then talk about them…
Why Celebrate Such a Flawed Document?
- Since 1787 we went through a bloody civil war because of Slavery, so the Thirteenth Amendment was enacted.
- Women have fought over decades, gallantly insisting on the right to vote which was enacted in the Nineteenth Amendment . . . then Asians in 1952 (the year I was born), then Native American women in 1957, and black women in 1965.
- In the 60s civil rights leaders stood on the Edmund Pettis Bridge and were beaten; MLK was ultimately assassinated so the Fifteenth Amendment was passed to protect the right to vote.
- From Loving vs Virginia which protected interracial marriages to the Supreme Court’s Gideon Decision that secured the right of defendants to have free representation. The Right to Appointed Counsel has always been in the Constitution, but “The Gideon case remains significant today because it established that no one could pick and choose who is and isn’t worthy of having the right to counsel because of the size of their wallet.”
- Brown V. Board of Education of Topeka in 1954, supported equal protection that is to be guaranteed by the Fourteenth Amendment making all students equal for the purpose of education, striking down segregation in the nation’s public schools also made it a catalyst for the civil rights movement, desegregating housing, public accommodations, and institutions of higher education.
- And now back to Heidi Schreck’s bone to pick, finally In 1973, the Court used the Fourteenth Amendment in Roe v. Wade to support the right to privacy in a woman’s personal decision to have an abortion. The Court then used the Equal Protection and Due Process Clauses to guarantee same-sex couples the right to marry.
But in every case, there was a backlash and we’re seeing it now . . . in politicians, courts, and the public! So in our current environment, it’s fixable?
“I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” — Ruth Bader Ginsburg, 2012
Our central document was at one time an inspiration for other countries to adopt such guarantees, but other countries have done a better job at ensuring individual rights in their documents.
- The US constitution is one of just 28 worldwide, for example, that doesn’t guarantee gender equality.
- Congress passed the Equal Rights Amendment in 1972, guaranteeing gender equality, but it still hasn’t been ratified.
- The US Constitution also doesn’t protect the right to health care, unlike 142 other global constitutions.
- A total of 160 constitutions worldwide guarantee a right to education, but the United States does not.
- Equal rights for people with disabilities and members of the LGBTQ community are not protected by the US Constitution.
- A constitutional right to health has been used to establish and preserve universal healthcare in Portugal.
- In Spain, the constitution’s guarantee of gender equality has helped realize the principle of equal pay for work of equal value.
- In Germany, the Constitutional Court found that the gender equality provision provided the foundation for an innovative parental leave policy, which incentivizes both fathers and mothers to take leave.
- The inclusion of LGBT+ rights within the post-apartheid constitution in South Africa not only made it the first nation do to so, but its adoption was followed with documented improvements in public support for LGBT+ equality.
- In Mexico, the Supreme Court cited the constitution’s explicit prohibition of sexual orientation discrimination in its landmark decision legalizing same-sex marriage.
- In Canada, citing the protection of equality for people with disabilities in the Canadian Charter of Rights and Freedoms, the Supreme Court ruled in 1997 that hospitals should provide interpreters for the deaf.
- Colombia’s constitution was used as the basis for a successful effort to abolish tuition fees for attending primary school—a barrier that had prevented many families from sending their children to school.
The Canadian and South African Constitutions are often cited as what our Constitution should be, ensuring rights within the document itself instead of relying on courts to adjudicate rights that can be revoked depending on the government in power or the judge on the bench. It’s hard to fix something if you have bad craftspeople. Our current Court seems intent on rolling back rights that we had come to believe we possessed, thus the flaw in our Constitution. A framework, but few actual rights which results in an “arc of . . . justice” that seems sometimes to bend back on itself.
Fix It or Replace it?
So fix it or replace it? I’m always down with fixing things, it’s what I do, but sometimes the problems of age, systems, and features put devices beyond the possibility of repair. Heidi Schreck who originally thought of the US Constitution as a “Living Document” that of course didn’t need replaced, has since come to believe we need a new Constitutional Convention:
“I have babies with two X chromosomes,” she said. “I really want them to be truly equal in this country when they grow up. I want them to enjoy that right, which they deserve. I want them to have a future … As a new mother, I am really hoping that we can, as a country, come through this very scary moment to something that looks better for the future.”
So is the genius of the US Constitution a real thing? A document that is a mirror of possibilities reflecting our actual belief in democracy and human rights that keeps getting fixed and renewed with the values of an ever-expanding group of citizens, including more of us in the notion of freedom and human rights?
But it also seems like it can be a funhouse mirror reflecting our worst impulses that forgets what the Declaration of Independence said that seems only partly enshrined in the US Constitution:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”
Maybe it comes back to how we take care of these particular tools. RFK thought it had to do with the owners:
“The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they are themselves protected by the law.” – Robert F. Kennedy
Let’s keep those tools sharpened and remember the original “truths” as we go back to work in 2024.
. . . and now for a song:
Joel