The Future of the Constitution

A reaction to Prof. Addams question about how I would change the constitution.

The Future of the Constitution In creating a new Constitution I would take a page out of the past and collaborate with the great minds of today and draft a version which could pass the scrutiny test of today’s ever growing world/nation. In doing so I would need to seek ratification and acceptance from the sates of the union which consist of about 37 more states than when the original document was put into effect 225 years ago. Would the ace of creating a new document create harmonious collaboration? Perhaps not. However it would certainly make each party show face and stand on the principles which modern society would what to govern their constituents in some cases uniformly, or individually. The question is who would benefit from changes in the Constitution, which articles would be changed; why change them, and would every state enforce the rights for their constituents, even if they are adverse to the new amendments?

 

These questions raise the issue of whether or not it would be worthwhile to change the constitution at all. It seems clear that the constitution was written by a certain race and class of individuals who drafted a document which was intended to protect the rights of certain individuals, not all. The fact that Africans were deemed by Anglo Saxons to be 3/5th human, and women not equal to white male land owners, and others who didn’t pass the racial/gender scrutiny of the framers, indicates that there was plenty of bias reflected in the original document itself. The problem throughout the years has been the process of remediation. Those who make the legislative changes (Congress) have only done so when extreme circumstances dictate such action to be taken. This is perhaps why we see so many correlations between laws of today and how they reflect much of the historic records of both U.S. history as well as U.S. jurisprudence. This is why I would take a page out of the South African experience and create a truth and reconciliation committee and allow for legislative forms of reparations to be granted while we are not at war among ourselves as a nation.

 

This country has had many civil wars, not just the one of 1861-1865, but the civil rights fight of the 1960s and 1970s, was too a civil war, among many others fought at different points in U.S. history. The American Revolution was another such occurrence. These battles cost many lives and great social upheaval. One of the geniuses of Constitution is that provides for Revolutionary changes without the use of bloodshed to accomplish the goal creating a legislative playing field which could avoid bloody conflicts among the citizenry. While the Constitution creates and establishes a political infrastructure which is subdivided into various branches, that very structure has the ability to be corrupted and exploited by any particular branch of government which could come into power. Only those members of society who have been harmed the most by these laws and branches of government can greatly attest to that fact the most. Yet these members of society have the smallest voice. Does not having a strong enough voice prohibit one from protesting the lack of “unalienable rights” granted by the declaration of independence as well as a variety of constitutional articles and amendments?

 

The framers seemed to envision a time when the Constitution could be used against that “planter class” and thus put in articles which reflect opportunities for one branch of government to supersede another in certain legislative matters. Unfortunately there comes many a time when the branches of government show collective indifference to a mass of people yearning for equal protection under the law for any variety of reasons. Whether it be seeking freedom from slavery, seeking equal rights regardless of ones race, seeking voting rights, or seeking civil rights, in too many past instances more than one branch of government has sided against the afflicted. This has led to mass protest movements who have had to make human sacrifices in order to resolve societal issues in extreme manners. Civil Disobedience was a tool used by the Civil Rights movement. Others have followed that model. The most effective tool however has been the use of the courts to rule on legislative matters which otherwise have gone on unresolved. This is where modernity steps in. During the Civil Rights era came the emergence of new media, and advanced forms of media which made it more difficult for political machines to spin lies and propaganda against the facts which lay before ones eyes. Seeing how a society treats a segmented portion of its populace created a global backlash which forced society to make some legislative actions it ought to have in the first place.

 

The speed in which technology could beam images around the world enabled those afflicted to move with the forces of global alliances. Does this make the media another branch of government? The media in this case helps make media consumers aware of their collective conditions and helps those affected by negative legislation. At the federal level, legislation which was to protect the Civil Rights of all citizens had to supersede those laws which unconstitutionally denied Civil Rights to minorities, mostly African Americans, throughout the 20th century. Thus, when the world got a chance to see these denials of rights in their global living rooms, the actions taken against those “outside agitators” enraged a global community and made the U.S. have to defend the Constitution by living up to it, even on behalf of those that even many federal legislators were opposed to. Pres. Lyndon Johnson could not have been in favor of making the legislative changes that his administration has claimed credit for. It was then the people who assisted in forcing legislators to act in the interest of all its citizens.

 

Now that we have entered the 21st century we see on the one hand how some of those legislative acts have benefited some portions of afflicted citizens. We see a new wave of citizens seeking address of their issues as well. The gay community seeks same sex laws which would bring them on par with traditional partnerships. Women want to protect their rights to chose on abortion issues. Some, however, are still hell bent on rolling back the gains of the Civil Rights era. Striping away gains such as affirmative action and other legislation which were designed to level the playing field in society for all to have equal rights has led to the cry that affirmative action is an entitlement which deprives whites of jobs and academic advancements previously denied to African Americans, and others. These arguments are being spearheaded by mostly conservative think tanks such as the Manhattan Institute with their biased articles written by Heather Macdonald and David Horowitz. These individuals are the prototypes who affect social legislative policies. Some might argue that so too had Martin Luther King and Jessie Jackson. Yet the civil rights movement was larger than both King and Jackson.

 

Some of the arguments which are being brought today attempting to reverse gains by the Civil Rights movement are not supported by the same set of facts which supported those of the Civil Rights era. There is no Jim Crow legislation preventing whites from enjoying the freedoms of the land. No red-lining, preventing African Americans from gaining access to capital. No public accommodation laws limiting whites from the right to enter a place of business from the back door, or service entrance. No miscegenation laws restricting one from marrying the person of ones choice. None of the laws that existed throughout most of the 20th century are being used against those who make claims of reverse discrimination. Instead the term reverse discrimination is being interpreted as giving equal rights to those who the larger society, (whites) prefer to restrict (blacks). In the 1990s there were a number of civil rights cases that were tried. According to the Bureau of Justice report of 2000 there were 42,000 complaints citing housing, employment, welfare benefits, and voting rights complaints filed in 1998. During the 1990s the reports claims that 1/3 of the cases litigated were won by complainants.

 

These complaints at that time rose from 9% in 1990 to 17% in 1998. What makes this statistic jump out is that the political climate began to change during these years. Democrats lost the House and the Senate, and were about to lose the White House. No small coincidence that the legislative turn to the right coincides with the findings of this federal report. The report further states that while these cases increased, the monetary payouts declined 83% in awards to complainants. No coincidence that 1990 politics reflected the post Reagan era in which Reagan appointed William Bradford Reynolds who did all he could to roll back civil rights gains and to promote the idea that civil rights for blacks should be interpreted as reverse discrimination against whites. Others charged that civil rights was intended to give damaged members of society rights previously denied. These facts were pointed out by Raymond Wolters’ “Right Turn” where he points out that the bulk of the right wing agenda seemed to primarily be to assail the minority and women populous with legislation designed to diminish their gains from the 1960s. Even Bob Jones made it compulsory that conservative candidates had to take a stand against civil rights, or affirmative action, in order to pass his litmus test. Bob Jones University had previously enjoyed tax free status until 1970 because they could no longer be subsidized while openly discriminating against black enrollment.

 

This is an example of what other Bob Jones types of institutions were being forced by legislation to transition into modernity. The case also is reflective of how these types were using the conservative political machinery to resist such change. It is possible that the voting rights bill and the Civil Rights act happened to quickly for opponents to get out in from of the new legislation politically. Blacks took advantage of their demographics to elect themselves or other politicians who legislated in their favor. Alan Grimes wrote in Equality in America that there were huge numeric advantages in various districts which favored the black communities which could not vote at the time of the books publication, 1964. He indicates that blacks definitely had the urban advantage, numerically. He pointed out a number of statistical data which showed for example how blacks in the 18th district in New York (Harlem) had the largest density (132,000), which favored both Adam Clayton Powell and Charlie Rangel. This type of numeric calculus was and still is being used to continue the practice of manipulating access to the polls.

 

Apparently certain groups were at ease when their constituency had legislative advantages over persons of the minority communities (blacks, Hispanics, etc.). Morroe Berger wrote in “Equality by Statute” of the “Buttressing the caste order” in which the description was given that persons of color were affected by the constitution on the federal level, and by legislation at the state level which in effect diminished the rights the newly freed slave, one step out of slavery. The laws of the land were being amended to protect the rights of those who had no previous protection from the law. Those who enjoyed the hegemony protested even back in the 1870s about special laws being created for the Negro race. This argument persists today in modern forms. Thus it is hard to even discuss making constitutional changes without putting it in racial terms. The race card continues to loom large because of the resistance to change by those forces who wish to maintain hegemony and refuse to live in a shared society. These problems of divisions based on race are manifested in the judicial branches of society.

 

This is what motivated me to do a documentary on Reparations. Boris Bittker wrote in The Case for Black Reparations that the issue is both “vital and volatile.” He and others including subjects that I interviewed for my film, state that Reparations is not just about compensating those descendents of slavery, but those damaged by post slavery wrongs committed in the 20th century as well. Some of the most egregious infractions included sterilizing black women to diminish future demographic growth. The other forms of damages revolved around issues of housing, education, and lending discrimination actions which harmed the growth and development of these afflicted communities. The case of Bessie Smith, and others like her, is a glaring example of discriminating against the injured seeking medical assistance only to be turned away because of race. Bessie Smith’s stature as a leading entertainer did not help her overcome this form of discrimination which cost her life. According to Bittker, Congress has plenary power to grant Reparations under the general-welfare and commerce clauses. He cites section 5 of the Fourteenth Amendment which is to enforce the equal protection clause. In other words Congress could have solved that issue long ago or even now, by Bittker theory.

 

This would be an opportunity to create a Constitutional Amendment which would be titled section 6 of the Fourteenth Amendment, which would read: “Congress shall address remedies for groups affected by intergenerational miscarriages of justice. The period of remediation shall include those affected from 1776 till 1968.” This amendment would be constitutional because it would not be specific to any one group, even though section 5 would allow such action. This amendment would open the door for other groups like the gay community, the Hispanic communities, the Chinese, and others who faced vicious hardships created by the racist legislation which created enduring suffrage from ruling forces of those times. Powerless to address those issues then would be one of the arguments that would seek to buttress the counter positions which could state statute of limitations, burdening newly immigrants from having to have their taxed wages pay for such a settlement, and so on. This would be a step that needs to be addressed merely because race has played such an important role on society on both a social level and legislatively.

 

Unfortunately society cannot legislate racial harmony. It can however ensure that a harmed group can be given the full protection under the law as a mandate under the Constitution. In doing so to the largest group of citizens discriminated against in this society, other can, as has been done, ride the coattails of such legislation to serve their needs as well, whoever they may be. So the future of the Constitution lies with the past. In order to sever the past it must be remedied to be cured so that society can go forward in the right direction. Thomas A. Krueger indicates that the answer to ending the nightmare of racism and oppression” lies within the minds of the political scientists of the world. So it seems that the real power is not in the hands of the people, but the legislative branches of society. Perhaps this semantically derived notion is born out in the Dictionary Act which plays off of parsing of words which say one thing, and mean something else. “People” could refer to one set of persons, or one singular entity (or what is, is).

 

Because the society has metastasized so much in the last 75 years the African American communities feel more pushed out than pulled into the mainstream of society. New immigrants from all parts of the world have entered this society and have benefitted from laws which were often established out of the protest movements of the 1960s, be they Civil Rights of Black Power movements. Now groups like those of the Jewish community, the Italian American communities, both the Chicano and Hispanic communities (legal and illegal), and the gay communities are copying the tactics of the 1960s movements, and are reaping results favorable to their causes. It starts though with the success of the Black communities fighting the hegemonic forces of society first and setting the groundwork for others to plow through. No matter who the new arrivals may be, if America can exhort any form of inequality against any race of people, as has been perfected and performed against the African American people for example, then any new arrival could potentially be affected by the same actions.

 

This is why I feel enacting Constitutional remedies to redress passed issues which have not been fully resolved must be in order to bring society in a forward direction. It appears that legislators are narrowly focused on pet legislation which maintains the status quo. Thanks to the results of the last two elections at the legislative branches we have seen where legislators have failed the American people. The legislature failed to guarantee all voters the right to select the candidate of their choice. This will only lead to apathy amongst the group society could least afford to lose; young white voters. The problems within the legislative branches are highlighted by today’s new media when problems occur. Sites like Youtube and the various websites posted by politicians, bloggers, and think-tanks are quick to seize upon every misstep a legislator makes, past and present. Things which were once hidden are now readily revealed.

 

As mentioned earlier, great minds would be employed to enact the Constitutional Amendment which I would seek to draft. Section 6 on the Fourteenth Amendment would be framed by framers of my choice who could include Cornel West, Bill Cosby, Professor Charles Ogeltree, Reps. John Conyers, Maxine Waters, and Noam Chomsky. I would encourage input from Native Pacific and other racial groups in the South West. These are but a few names, but I've seen them articulate themselves quite well during the annual State of the Black Union Address in which they carved out great plans for the Black community, yet they are not in the requisite positions of power to put their powerful words in action, legislatively. When the government acts in accordance with the judiciary duties most diligently is when monetary punishment is waged against those to whom this legislation would be targeted against.

 

That is of course unless the government wants to see protest movements return to the surface. Such legislation will not solve all social problems immediately. They will however begin the process of reducing the prison populations, ensuring higher performances in education, bringing in new voices into the framework of society, and right wrongs ultimately. Let’s face it, if the Constitution could be drafted to harm racial groups for more than a century, surely those afflicted should be best suited for designing the remedy. Those Americans affected by the British had no problem addressing the problems which caused them to revolt from their country of origin and form a new nation. This nation needs reform of it’s legislature in order to keep pace with the changing face of society without the bloodshed.

 

The conservative movement is losing its luster because the new face of America is not a part of the old face of America as it once was. Now people realize they don’t fit into the Right Wing plans. Because society is being infused by global citizens, it must abort the politics of xenophobia and adopt an attempt to be more tolerant of the various cultures now calling America home. This will have to be legislated in a way that protects people from people, and people from unjust laws. I mentioned who I would include as my Framers of the Constitutional changes I would enact. Having interviewed Cornel West already, the country would be in the most intelligent hands possible.