GAVEL AND SICKLE: A Path to Revolutionary Jurisprudence
Contributor: Alex Garrett
According to some on the Left, the Constitution is among the greatest obstacles to achieving socialism in America. “Burn the Constitution,” writes Seth Ackerman in Jacobin. “[I]t is a charter for plutocracy. It is a measure of our current ideological morass that liberals… masochistically embrace a throne-and-altar orthodoxy that subordinates the people’s will to a virtually unalterable diktat handed down by an ancient council of aristocratic, semi-deified lawgivers.” “As an ideology, the Constitution provides us with a kind of bourgeois fairy tale in which claims to equal rights and responsibilities are substituted for the harsh realities of class domination,” bemoans Bertell Ollman.
“Through the Constitution, the struggle over the legitimacy of any social act or relationship is removed from the plane of morality to that of law.”
“As ideology, the Constitution provides us with a kind of bourgeois fairy tale in which claims to equal rights and responsibilities are substituted for the harsh realities of class domination,” bemoans Bertell Ollman. “Through the Constitution, the struggle over the legitimacy of any social act or relationship is removed from the plane of morality to that of law.”
2 These criticisms are common across the progressive movement, with good reason. To be sure, the Constitution was designed by a self-interested ruling class, which explicitly endeavored to enshrine its own supremacy in the Supreme Law of our then-fledgling nation. As Edmund Morgan once noted, Jefferson and Madison intended to vest state power in a “natural aristocracy,” 3 with robust structural barriers to prevent the poor from accruing too much influence. The Constitution — especially before its Amendments were ratified — was not a truly egalitarian document; it was, at best, a single step along our continuing march from oppressive dynastic rule to the world we seek to build. It set the stage for 19th- and 20th-century.
Much of the Constitution is straightforward and inflexible, but well over a dozen sections are open to interpretation.
Americans to make bolder progress toward social control of public affairs. It has shown itself to be capable of slowly absorbing the force of mass social movements, either in the form of Amendments or Supreme Court decisions. I am interested in exploring the latter — the capacity of federal courts to engineer harshly progressive interpretations of the Constitution’s seven articles. Much of the Constitution is straightforward and inflexible, but well over a dozen sections are open to interpretation. I am examining these sections and their potential to allow for revolutionary change in the common law. If the socialist movement can introduce just a few of these ideas into the judicial mainstream, then change far beyond the scale of the Warren Court will be feasible.
The Constitution — especially before its Amendments were ratified — was not a truly egalitarian document; it was, at best, a single step along our continuing march from oppressive dynastic rule to the world we seek to build. It set the stage for 19th- and 20th-century.
If, for instance, a President Sanders has the opportunity to appoint Supreme Court justices, then we may have a real opportunity to reshape the Supreme Law of our nation without having to whip 60 votes in the Senate. Due to Mitch McConnell’s reckless reduction of the threshold to confirm Supreme Court justices, it may be possible in 2021 and 2022 to confirm far-Left justices without a single Republican vote. With these possibilities in mind, let us turn to Article I.
Article I: The Legislative Branch.
The liberals’ effort to endow Congress with the power to regulate all aspects of the economy is basically complete. If the House and Senate approved a host of democratic socialist reforms, they would almost certainly survive a judicial challenge. The Commerce Clause — allowing Congress the power to “regulate commerce among the several states” — has been broadly construed to allow for almost any form of regulation of the private sector, barring certain “rights” such as donating to Super PACs and refusing to pay union dues. At any rate, Section 2 of Article I contains an important provision that has often been overlooked: “The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.”
If the House and Senate approved a host of democratic socialist reforms, they would almost certainly survive a judicial challenge.
This imperative overrides the Reapportionment Act of 1929, which capped the size of the U.S. House of Representatives at just 435 seats. It would be practically impossible to follow this part of the Constitution to the letter; it is hard to imagine expanding the House beyond 10,000 members. Nevertheless, the Supreme Court could interpret Section 2 to mean that the House must be expanded to its reasonable logistical limits. Perhaps it is not necessary for the entire Committee of the Whole to be able to fit in the House to watch the State of the Union. We could accomplish a lot of progressive goals by expanding the House. Although the idea of having more politicians may not seem appealing, creating more congressional districts would drastically expand the congressional representation of cities, thereby reducing the political clout of reactionary rural areas.
The Constitution makes no mention of such a threshold for legislation. The federal courts should abolish the filibuster and return control of the U.S. legislature to the majority of Americans.
This would move the ideological median of the House to the Left and make it harder for Republicans to win united control of the government. Article I also provides indirectly for the abolition of the filibuster, which would make progressive policy more feasible. If the U.S. Congress is supposed to exercise “All legislative Powers” effectively, then a simple majority vote should be sufficient to get a bill through either house of Congress. The filibuster creates a de facto super-majoritarian threshold for the passage of legislation, which is unconstitutional. Where a supermajority is required, the Constitution says so; treaties and constitutional amendments, for example, require the approval of a supermajority of senators.
The Constitution makes no mention of such a threshold for legislation. The federal courts should abolish the filibuster and return control of the U.S. legislature to the majority of Americans.
[…] Article IV: Relations Among the States.
Two sections here are worthy of attention: Section 2 and Section 4. Consider Section 2, commonly known as the “Privileges and Immunities Clause”: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” This is a broad clause that appears to secure extensive “Privileges and Immunities” for US citizens. The Court clarified its meaning shortly after the Civil War. In the case of Paul v. Virginia, 75 U.S. 168 (1868), the Chase Court ruled thusly: It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.
It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States and egress from them; it ensures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws….
A Court staffed by Sanders could determine that this right to participate meaningfully in democracy is a Privilege secured by the Privileges and Immunities Clause.
It was not intended by the provision to give to the laws of one State any operation in other States. They can have no such operation, except by the permission, express or implied, of those States. The first portion, which broadens the protections secured by the Clause, should be upheld. The latter portion, which clarifies that the Clause should not spread state law from one state to another, should be relaxed in certain cases. For example, the Pennsylvania Supreme Court has found that citizens have a right to vote in fairly drawn districts — i.e., districts that are not “gerrymandered.” A Court staffed by Sanders could determine that this right to participate meaningfully in a democracy is a Privilege secured by the Privileges and Immunities Clause. Wherever state constitutions have progressive provisions or state supreme courts have passed progressive rulings, the U.S. Supreme Court should have an opportunity to extend the verdict to the whole of the United States.
A government may not be truly republican unless we have a system of proportional representation, which enables greater third-party participation. Any number of democratic reforms may be considered necessary conditions for this obscure clause.
Section 4 states, “The United States shall guarantee to every State in this Union a Republican Form of Government.” The Supreme Court could raise the threshold for what constitutes “a Republican Form of Government” to astronomical proportions, thereby demanding a host of democratic reforms. It may be determined that a government is not truly republican unless we have basically a parliamentary system for electing the House. A government may not be truly republican unless we have a system of proportional representation, which enables greater third-party participation. Any number of democratic reforms may be considered necessary conditions for this obscure clause.
Article V: Amending the Constitution.
The Constitution should be amended to make it easier to amend. An amendment should only require the ratification of two-thirds of each congressional chamber or two-thirds of state legislatures. Not both.
Article VI: The Supreme Law of the Land
Article VI has the potential to shake US foreign policy to its core. Section 2 states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Professor Noam Chomsky has observed numerous times that this provision renders much of America’s international conduct completely unconstitutional. Consider what Chomsky recently called the “conservative approach” to foreign policy:
- It’s useful, I think, to begin by imagining a conservative approach to foreign affairs. Such an approach would recognize that we have a Constitution, revered as a sacred text. It includes Article VI, which states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” One such Treaty, of unusual contemporary significance, is the United Nations Charter, the foundation of modern international law. Article 2(4) of the Charter forbids “the threat or use of force” in international affairs, with qualifications that we can put aside in the present context.
I recognize that there is a respected profession which assures us that these words don’t mean what they say, but I’ll naively assume that they do. A conservative approach would be to observe that the supreme law of the land is routinely violated by high officials, including the current president and his predecessor, who declare regularly that “all options are on the table” with regard to Iran, and who not only threaten but resort to force, including such textbook examples of aggression as the invasion of Iraq without credible pretext.
“The Constitution should be amended to make it easier to amend. An amendment should only require the ratification of two-thirds of each congressional chamber or two-thirds of state legislatures. Not both.”
The U.S. is a party to literally thousands of treaties — so many that one has to use the Department of State’s website to find a conclusive list. Still, I will attempt to summarize just three treaties that may help the courts secure a progressive domestic society as well as an antiimperialist foreign policy. I will list these in reverse chronological order.
1. UN Convention Against Torture
a. Defines “torture” as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
b. Broadly construed, this Convention could eliminate all cruel treatment of US detainees, including GITMO.
2. International Convention on the Elimination of All Forms of Racial
Article 2 of the Convention condemns racial discrimination and obliges parties to “undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms”. It also obliges parties to promote understanding among all races. To achieve this, the Convention requires that signatories:
1. Not practice racial discrimination in public institutions
2. Not “sponsor, defend, or support” racial discrimination
3. Review existing policies, and amend or revoke those that cause or perpetuate racial discrimination
4. Prohibit “by all appropriate means, including legislation,” racial discrimination by individuals and organizations within their jurisdictions.
5. Encourage groups, movements, and other means that eliminate barriers between races, and discourage racial division.
ii. Parties are obliged “when the circumstances so warrant” to use positive discrimination policies for specific racial groups to guarantee “the full and equal enjoyment of human rights and fundamental freedoms”. However, these measures must be finite, and “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved”.
b. Article V secures the following rights.
i. (a) The right to equal treatment before the tribunals and all other organs administering justice;
ii. (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution;
iii. (c) Political rights, in particular, the right to participate in the elections-to vote and to stand for election – on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service;
iv. (d) Other civil rights, in particular:
1. (i) The right to freedom of movement and residence within the border of the State;
2. (ii) The right to leave any country, including one’s own, and to return to one’s country;
3. (iii) The right to nationality;
4. (iv) The right to marriage and choice of spouse;
5. (v) The right to own property alone as well as in association with others;
6. (vi) The right to inherit;
7. (vii) The right to freedom of thought, conscience, and religion;
8. (viii) The right to freedom of opinion and expression;
9. (ix) The right to freedom of peaceful assembly and association;
v. (e) Economic, social and cultural rights, in particular:
1. (i) The rights to work, to free choice of employment, to just and favorable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favorable remuneration;
2. (ii) The right to form and join trade unions;
3. (iii) The right to housing;
4. (iv) The right to public health, medical care, social security, and social services;
5. (v) The right to education and training;
6. (vi) The right to equal participation in cultural activities;
7. (vii) The right of access to any place or service intended for use by the general public, such as transport hotels, restaurants, cafes, theatres, and parks.
3. Fourth Geneva Convention
a. Article 3 states that even where there is not a conflict of international character, the parties must as a minimum adhere to minimal protections described as: non-combatants, members of armed forces who have laid down their arms, and combatants who are hors de combat (out of the fight) due to wounds, detention, or any other cause shall in all circumstances be treated humanely, with the following prohibitions:
i. (a) violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment, and torture;
ii. (b) taking of hostages;
iii. (c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
iv. (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
THE BILL OF RIGHTS.
Many of the most progressive and popular passages in the Constitution are in the Amendments thereto. Though some Amendments have already gone virtually as far as they can, consider the following:
• Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The threshold for what constitutes probable cause should be raised. It should be almost impossible for police to search for ordinary people. Searches and seizures should be measures taken to convict white-collar criminals.
• Amendment VI: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” Article VI should have prevented our immigration detention crisis long ago. It is impermissible to incarcerate people who have not been duly convicted of a crime. All persons incarcerated for attempting to immigrate must be released.
• Amendment VIII: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Cruel and unusual punishments” could mean anything. This Amendment indirectly provides for police abolition and prison abolition. Incarceration itself is both unusual and cruel. Solitary confinement and the death penalty are especially impermissible.
• Amendment IX: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This Amendment allows for the creation of new constitutional rights that are not made explicit elsewhere in the Constitution. The Supreme Court could even rule that economic rights are unenumerated rights to which all Americans are entitled. We could draw these rights from any number of sources. Some of these overlap with the existing Bill of Rights, but some of these rights are sorely missing from American society.
§ FDR’s 4 freedoms
• freedom from want
• freedom from fear
• freedom of expression
• freedom to worship
§ Sanders’ 21st Century Bill of Rights
• The right to a decent job that pays a living wage
• The right to quality health care
• The right to a complete education
• The right to affordable housing
• The right to a clean environment
• The right to a secure retirement
§ The Bill of Rights of India
• Right to Life. Man must live before he can do anything.
• Right to Family Life.
• Right to Education.
• Right to Personal Freedom.
• Right to Religious Freedom.
• Right to Freedom of Thought and Expression.
• Right to Freedom of Movement.
• Freedom of Press.
• Right to Equality.
• Right to Justice.
• Freedom to Form Associations.
• Right to Cultural Freedom.
• Right to Contract.
§ Universal Declaration of Human Rights
• Article 1 Right to Equality
• Article 2 Freedom from Discrimination
• Article 3 Right to Life, Liberty, Personal Security
• Article 4 Freedom from Slavery
• Article 5 Freedom from Torture and Degrading Treatment
• Article 6 Right to Recognition as a Person before the Law
• Article 7 Right to Equality before the Law
• Article 8 Right to Remedy by Competent Tribunal
• Article 9 Freedom from Arbitrary Arrest and Exile
• Article 10 Right to Fair Public Hearing
• Article 11 Right to be Considered Innocent until Proven Guilty
• Article 12 Freedom from Interference with Privacy, Family, Home and Correspondence
• Article 13 Right to Free Movement in and out of the Country
• Article 14 Right to Asylum in other Countries from Persecution
• Article 15 Right to a Nationality and the Freedom to Change It
• Article 16 Right to Marriage and Family
• Article 17 Right to Own Property
• Article 18 Freedom of Belief and Religion
• Article 19 Freedom of Opinion and Information
• Article 20 Right of Peaceful Assembly and Association
• Article 21 Right to Participate in Government and in Free Elections
• Article 22 Right to Social Security
• Article 23 Right to Desirable Work and to Join Trade Unions
• Article 24 Right to Rest and Leisure
• Article 25 Right to Adequate Living Standard
• Article 26 Right to Education
• Article 27 Right to Participate in the Cultural Life of Community
• Article 28 Right to a Social Order that Articulates this Document
• Article 29 Community Duties Essential to Free and Full Development
• Article 30 Freedom from State or Personal Interference in the above Rights
OTHER CONSTITUTIONAL AMENDMENTS.
• Amendment XIV: “…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws….“Due process of law” should be redefined to refer to an extremely difficult standard. Depriving a person of liberty should be difficult. However, depriving a wealthy person of property (with or without “just compensation”) should be very easy. These matters are for the courts to decide.
• Amendment XXIV: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.” The burden of voter registration should, therefore, be the state’s, rather than the citizens. The state should register all citizens to vote, and voting should be mandatory. Otherwise, financial costs interfere with a person’s participation in democracy.