September 2020

Constitutional Conflict

I like to use alliteration in my writing and I had considered titling this piece “Constitutional Crisis.” However, in less than four years the Trump administration has created so many such crises that they have practically rendered the term trite. Still, Constitutional Conflict sufficiently serves my purpose.

We hear a lot about rights in today’s society. Of course, the consideration of rights has long been a part of American life, whether we speak of human rights, voting rights, equal rights… the list goes on and on. But in almost every instance we use the term incorrectly.

The Declaration of Independence states that all people are created equal and that “they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” The enumeration of those three rights was not intended to be exhaustive, merely representative—a justification for declaring independence from an unjust and oppressive government.

Our own history, however, has been complicated when it comes to rights—even up to the present day. It is almost as if we were willing to slide into the same oppression exercised by King George III. And it did not take long. The original draft of the Declaration condemned slavery. But that condemnation was removed to gain the support of the Southern delegations and ensure their vote for independence.

Only twelve years after the Declaration of Independence, the US Constitution was drafted and it failed to guarantee all citizens, among other things, the right to vote. And here is precisely where the Constitution, current state legislatures and even the US Supreme Court have failed.

By their very meaning, rights are not granted by a king, a parliament, a congress or any law. They are inherent in nature, in being a person. Unfortunately, we tend to subvert logic, reason and even basic principles by subjecting them to the the agenda of partisan politics.

The concept of American democracy rests on the principle of one person, one vote. By that standard the women’s suffrage movement should have been unnecessary. No government, at least not within a democracy, has the power to take away any rights. Privileges, yes. Rights, no.

For example, no one possesses a right to serve in Congress. That is a privilege granted by the electorate. It can be conditioned, as constitutional age restrictions do. It can be revoked by the same citizens who grant it. But it is not a right. Driving a car is not a right. It is a privilege that is controlled by the state.

Voting is a right and it cannot be taken away. Unlike the suffrage movement, the Voting Rights Act sought to restrict illegal state government activities. It attempted to guarantee that no state could take away a person’s right to vote. That it took years of suffering and bloodshed before Congress passed the Voting Rights Act, is a blot on our nation’s history. That states are attempting to restrict that right today, is unconscionable.

Similarly, rights cannot be forfeited. Once again, that basic principle does not serve our political purposes. One of the problems with the death penalty is the idea that if someone commits murder they forfeit their own right to life. That, however, is obscene. The right to life is not only mentioned in the Declaration of Independence, the document also notes that the right is endowed by God and that it is inalienable.

The same holds true when people are incarcerated. They do not, indeed they cannot , forfeit their right to vote. And as noted above, it cannot be taken away. When they are released, that right is not restored to them. They never lost it. Unlike privileges, rights cannot be restricted. So poll taxes were declared unconstitutional.

In 2018 the people of Florida amended their constitution to restore voting rights to felons who had completed their sentences. First of all, it bears repeating that the right to vote could not have been surrendered or taken away even by the commission of a crime. What Floridians did, however, was to partially recognize that truth and correct a state injustice.

Immediately, the Republican led legislature realized that if more than a million former felons voted, the Republicans stood a good chance of being voted out of office. What to do? Deny the very definition of a right and pass an unjust law restricting that so-called right.

When the issue came up before the Supreme Court in July, the justices refused to intervene, just as they refused to intervene to protect voting rights in Wisconsin, Alabama and Texas. Just last week a federal appeals court upheld the illegal, illogical and unconscionable Florida law that restricts former felons from voting. I must stress and we must realize that this is not really an issue of law.

I suggest that each Supreme Court justice and each member of federal and state judiciaries be given two things: a copy of the Declaration of Independence and a dictionary. If any of them are serious about their work on the courts, they might also want to read the United Nations Declaration on Human Rights and maybe a philosophy book or two.