Why the Constitution Needs a Rewrite
What do you love about the U.S. Constitution?
As we grimly mark the 3rd anniversary of the infamous Supreme Court of the United States (SCOTUS) Citizen United rulingthat opened the corporate-funded floodgates, pilule empowering Billionaires to speak loudest in our elections, it is an important if not overlooked question.
For the rest of us who can’t afford our own SuperPAC, ‘corporate personhood’ has become shorthand for all that ails our flagging democracy. Amending the Constitution to abolish it and/or repeal Citizens United is certainly a movement gaining steam, and it has created space for casting a critical eye on the structural defects of our system. But if the bull’s eye is fixing government in the hands of the people, then it is time to ask: If the Supreme Court had never granted “personhood” privilege to corporations, would rights of people, communities and nature be protected? Would we have democracy? Would this one fix affect the wide scale change we seek?
Truth is, there is far more standing in the way of building sustainable, democratic and just communities than corporate personhood. To dismantle corporate rule we have to look at ALL the tools that the U.S. Constitution provides to the powerful few corporate rulers, enabling them to override the needs of local and state majorities and the natural systems upon which we depend. Maybe it’s time to do what Thomas Jefferson advised every generation to do and rewrite the Constitution itself.
While criticizing corporate personhood has reached the mainstream, questioning the Constitution is not just a conversation killer—but the ultimate taboo topic from the lunatic fringe. With so much at stake, it’s time to take open stock of this powerful document and contemplate: What do we really love about it, or find convoluted or missing?
What the Constitution AIN’T
Here we sit 225 years into the current Constitution—and from the onset of climate disruption to drone warfare to the Internet, the world has changed in ways that would boggle a Founding Father’s mind. Yet questioning the legend or wisdom of the framers can still be as electrifying as touching the third rail on the subway.
Now consider that the Constitution doesn’t make it illegal to kill the planet. Nature’s needs are not addressed in the document. In fact, it encourages and legalizes destruction it every day by treating nature or natural systems as owned property with a price. That’s a problem when you realize that nature nourishes all things, including us. As far as business goes, remember that 100 percent of the economy depends on the functions of nature just doing their thing. The life support systems of this country, continent and planet are not mere things for the property and commerce titans to profiteer, plunder and trash. Consider natural entities such as a river and all the life it sustains have legal rights to exist and flourish. Now take the idea of human rights and apply them to ecosystems. Legal rights of nature wouldn’t stop development—just the kinds of development that interfere with the existence and vitality of natural systems.
Chances are you, like most folks, “love” either thePreamble or the Bill of Rights … neither of which are actually part of the current Constitution, and neither of which affect the way decisions are made or who makes them. The “We The People,” Preamble encapsulates the dream of the Constitution for many, but has been ruled as mere poetry by the Supreme Court, and therefore cannot be used to make law, and bears little resemblance to the text that follows. The Bill of Rights is what most believe is the heart of the Constitution, but it was drafted as a tack-on concession to appease the masses who feared the new Constitution was a “conspiracy of the Well Born few against the sacred rights of their fellow citizens.” The Bill of Rights was left up to the unelected Supreme Court to interpret. Rather than using this unrivaled (and generally unquestioned) power to uphold these rights for the many, their decisions read like the wish list of the few: from ‘Separate but Equal’ to denying labor and environmental rights to creating corporate personhood.
If our own human rights come by virtue of being born, then they surely emanate from the natural world. And yet we treat the natural word as if our own rights don’t depend on the health of our planet. It’s like trying to take care of a single leaf on a tree that is dying all around us. We cannot protect nature as long as we treat it as a belonging, rather than seeing ourselves as part of the natural world. Nature needs legal rights in our Constitution. We would not be the first to do so; the Ecuadorian people ratified a new system of environmental protection based on legal rights when they rewrote their Constitution (lots of countries do this). Bolivia, New Zealand and some U.S. communities have paved the way for us. We can enshrine this as well.
When is the Constitution like a Hydra?
A deeper dive into our own history than we learned in school reveals that most Founding Fathers truly believed that the best form of government was one in which the wealthy made the rules, and set up the Constitution to put fat cats in charge to protect fat property and commerce, rather than liberty and justice for all. From day one, the Constitution embraced slavery and limited suffrage to only white men with property. And like a mythological many-headed hydra, when we finally ended the plantation system and freed the slaves (a time that looked like the birth of real democracy to many) out of thin air, the Supreme Court created and embedded corporate personhood into the 14th Amendment. No discussion, no vote, no accident, and nobody’s life was enriched but the corporate gentry.
So What IS the Constitution, anyway?
We now know it is NOT the Bill of Rights (though that would be nice). The Constitution is more of a flow chart for “how decisions are made” that currently is a set up to ensure the financially wealthy win and that real power is out of our grasp. Here is an example of how it works. Rather than recognizing rights for labor and nature, the Constitution houses these laws under the Commerce Clause, ensuring that decisions about labor and the environment have the stamp of approval from big business, and helps explain why we forfeit many rights upon entering the workplace, and why mountaintop removal is legal. It’s just good business, right? The fate of the environment then rests in the hands of a regulatory system that does more to regulate citizen input than corporate actions. Corporations and the courts routinely use the ever-expanding powers of the Commerce Clause to strip state and municipal governments of democratically elected laws designed to protect communities and natural systems from harm. (For a great history of the Commerce Clause see pages 18-37)
On the Road to Real Democracy
We’ve said it before, but consider this: the system is designed to be an underground burrow for a never-ending game of Corporate-Whack-A-Mole. Whether it’s regulatory law, the Commerce Clause, lobbyists’ laws, corporate personhood or…or… or… We can’t stop those damned moles from popping up; it’s the function of a rigged game.
As our movements in the U.S. rise, we’ll demand a major rewrite. It will take a while, but it will be exciting and important work. Wikipedia tells us that natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government. Think of natural rights as universal or inalienable (they can’t be given or taken away and they belong to all equally). Natural rights are considered beyond the authority of any government or international body to dismiss. The Declaration of Independence declares upholding and protecting rights is the raison d’être for our government and laws.
It is these natural rights that we need to own, to breathe life into, to bring them off the page the ways the Abolitionists, the Suffragettes, and the Civil Rights movements did. Rosa Parks owned her rights, no mater what the Constitution, the courts or the bus company had to say. We need to distinguish these rights from the more opaque “legal rights,” which are really more of a governmental grant of privilege, like a property right. Dammit, it’s time to have a real conversation about what we want—and how to use new law to stop degrading our only planet—no matter how crazy it may sound to some. We can change from a rigged property and commerce Constitution to one based on legal rights, sensible responsibilities and real public governance.
Upon cutting off one of the Hydra’s heads two grew back. One step forward and two steps back is a hopeless situation. The weakness of the Hydra was that it needed at least one head. The U.S. Constitution is the central head of our legal system. By changing that head to one we truly love, we can shift from hopeless to hopeful.
Randy Hayes, Rainforest Action Network founder, has been described in the Wall Street Journal as “an environmental pit bull.” He works from Washington DC at Foundation Earth, a new organization rethinking a human order that works within the planet’s life support systems.
Shannon Biggs, is the Director of the Community Rights program at Global Exchange, assisting communities confronted by corporate harms to enact binding laws that place the rights of communities and nature above the claimed legal “rights” of corporations.