here to read
any of the commentaries in this series.
we do not have to start from scratch in constructing new human
rights. Much work has already been done, some of it by that 95.5
percent of humans who are not Americans. Many of the rights proposed
in the previous chapter I have taken word for word, or nearly
word for word, from existing international treaties. Where we
think it makes sense, we can ratify and enforce international
treaties that establish rights for all human beings. Shouldn’t
Americans have, at a minimum, the rights that others around the
world have or strive for? Shouldn’t we provide those rights to
foreigners visiting our country and expect those rights to be
maintained for our citizens traveling abroad? Shouldn’t we abide
by those treaties that we have already signed, and join other
nations in developing these rights, rather than standing in the
way? Isn’t there something fundamentally wrong with what we did
to the people of New Orleans in 2005 and subsequent years that
requires a reworking of the system that permitted it?
A major influence on the establishment of international rights
was the work of President Franklin Delano Roosevelt and his wife
Eleanor Roosevelt, who served as delegate to the UN General Assembly
and chair of the committee that drafted the Universal Declaration
of Human Rights. In his annual address to Congress in 1941, President
the future days, which we seek to make secure, we look forward
to a world founded upon four essential human freedoms. The first
is freedom of speech and expression—everywhere in the world.
The second is freedom of every person to worship God in his
own way—everywhere in the world. The third is freedom from want—which,
translated into universal terms, means economic understandings
which will secure to every nation a healthy peacetime life for
its inhabitants—everywhere in the world. The fourth is freedom
from fear—which, translated into world terms, means a worldwide
reduction of armaments to such a point and in such a thorough
fashion that no nation will be in a position to commit an act
of physical aggression against any neighbor—anywhere in the
world. That is no vision of a distant millennium. It is a definite
basis for a kind of world attainable in our own time and generation.
That kind of world is the very antithesis of the so-called new
order of tyranny which the dictators seek to create with the
crash of a bomb.
That kind of world has still not been attained, but it is still
attainable. Progress has been made here at home, although we’ve
also taken significant steps backward. The same is true abroad.
International rights and restrictions have developed over the
decades, inspired by documents like the US Constitution and the
Universal Declaration of Human Rights (UDHR). These new ideas
have been incorporated into treaties to which the United States
is, in some cases, already a party, treaties like the Geneva Conventions
and the UDHR. According to the US Constitution, those treaties
and every other treaty to which the United States is a party are
the law of the land:
. . 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, any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.
looking for ways to expand our Bill of Rights, we can turn to
the International Bill of Rights, which consists of three major
The Universal Declaration of Human Rights (UDHR), which the United
States voted in favor of when it was unanimously passed by the
United Nations in 1948;
The International Covenant on Economic, Social and Cultural Rights
(ICESCR), which went into effect in 1976 and has been ratified
by 159 nations but not the United States; and
The International Covenant on Civil and Political Rights (ICCPR),
which went into effect in 1976 and has been ratified by 162 nations
including the United States, although the US ratification included
major exceptions and qualifications that rendered it toothless.
There are also two additions to the International Covenant on
Civil and Political Rights called optional protocols. The first
has been ratified by 111 nations, but not the United States, the
second by sixty-six nations but not the United States.
These three documents establish the sorts of rights we have been
discussing, with the ICCPR focused more on legal and political
rights, such as the due process rights that were found in the
center of our US Bill of Rights at least prior to Bush-Cheney,
and the ICESCR focused more on social rights such as health, education,
and basic well-being. If the UDHR addresses life, and the ICCPR
liberty, the ICESCR takes up the pursuit of happiness (or, if
you prefer, the freedoms from want and fear). But the USA is being
left behind. I encourage you to read these and many other treaties
We might begin to correct our deficiencies by considering the
possibility of ratifying the second of these treaties and removing
the exceptions to our ratification of the third, as well as ratifying
the two optional protocols. Then we could legislate and enforce
strict compliance with the entire package. There are seven additional
major treaties aimed at protecting human rights:
The International Convention on the Elimination of All Forms of
Racial Discrimination, which has been ratified by 173 nations,
including the United States; however, the US ratification includes
The Convention on the Elimination of All Forms of Discrimination
against Women, which is accompanied by an optional protocol. The
United States is the only wealthy nation that has not ratified.
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, which is accompanied by an optional protocol.
The United States has ratified the convention, but not the protocol,
which creates enforcement.
The Convention on the Rights of the Child, which is accompanied
by two optional protocols, one related to armed conflict, the
other to slavery, prostitution, and pornography. The United States
and Somalia are the only two nations that have not ratified this
The International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families. No wealthy
countries have ratified this convention, only poor ones.
The International Convention for the Protection of All Persons
from Enforced Disappearance. This is a new treaty, not yet in
force. Thus far seventy-three countries have signed, and four
have ratified. The United States has done neither.
The Convention on the Rights of Persons with Disabilities, which
is accompanied by an optional protocol. The United States is the
only wealthy nation that has not ratified.
As you can see, of the above, the US has only ratified the International
Convention on the Elimination of Racial Discrimination, which
included major exceptions, and the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment of Punishment,
but only the convention, not the protocol. And, despite having
signed the Convention Against Torture, we are violating it by
failing to prosecute all acts of complicity in torture.
These treaties, combined with those above, would provide the United
States, if enforced, with the vast majority of the rights I discussed
in the previous chapter, and would do so in a way that united
us with the rest of the world. We should abandon our rogue state
status and join with the world community. In fact, we should lead
the way by fully ratifying and aggressively legislating and enforcing
all of these treaties. The United States would be obliged by the
above treaties to accord equal rights to non-Americans, to work
with other nations to eliminate world hunger, to report to the
United Nations on its progress in providing all of the rights
created by the treaties, and to take active steps in many areas,
including by working to end racial discrimination, ensuring that
the mass media disseminates material of social and cultural benefit
to children, and ensuring access and lack of discrimination for
people with disabilities.
There are other treaties that we should join and abide by, as
well. The General Assembly resolution on “Permanent sovereignty
over natural resources” and the “International Convention against
the Recruitment, Use, Financing and Training of Mercenaries” both
do what it sounds like they do, with obvious consequences
for US behavior in Iraq and elsewhere. The same goes for the “Principles
of Medical Ethics Relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.”
I’ve mentioned in a previous chapter the Rome Statute of the International
Criminal Court, which Clinton signed and Bush unsigned. It should
be signed, ratified, and enforced. So should the Convention on
the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity, and the Principles of International Cooperation
in the Detection, Arrest, Extradition and Punishment of Persons
Guilty of War Crimes and Crimes Against Humanity.
Even if we were to ratify and enforce all of the above treaties,
or most of them, and others like them, and new ones that we might
originate, we would also need to place enforcement measures in
our national code of law, and there would be an advantage to incorporating
key rights and freedoms into the US Constitution, including some
that are not established by the treaties above. Some of the changes
we need can only be made by amending the Constitution. Constitutional
amendments should not replace treaties, but can reinforce them.
Our Constitution was designed to be amended. Article V reads:
Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application
of the Legislatures of two thirds of the several States, shall
call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as part of
this Constitution, when ratified by the Legislatures of three
fourths of the several States, or by Conventions in three fourths
thereof, as the one or the other Mode of Ratification may be
proposed by the Congress . . .
Our original Constitution was not only written over two centuries
ago, but it was written with the influence of a very antidemocratic
spirit. We have amended the Constitution to include new groups
of people within the umbrella of “we the people,” and to make
other improvements, but we have not amended the Constitution in
the dramatic ways in which its authors certainly expected we would
need to. We’re dragging around with us a radically outdated structure
of government. And, yes, even today we fail to live up to some
of its better ideas, but that is in part because of the limitations
imposed on us by some of its worse ones.
At this point of crisis, in the midst of economic and political
turmoil, we are in need of serious change. I think we should seriously
consider working to move two-thirds of the states, through their
legislatures or through state conventions, to call a new constitutional
convention as one of several approaches to reforming our government.
It’s about time we made the first use of a tool that has been
sitting there gathering dust in Article V for over two centuries!
In fact, a group called Friends of the Article V Convention has
documented at least 754 applications already filed with Congress
by the states (at least one from each of the fifty states) calling
for a convention. But only four states have taken this action
since the year 2000. Some combination of the following may be
required to make a convention actually happen: new applications
must be grouped within a short period of time from two-thirds
of the fifty states, public pressure must be placed on Congress,
or lawsuits must be brought against Congress by the states. The
states’ applications need not be identical in language or raise
the same topics or propose the same amendments. But our goal should
be to propose and pass at the convention a group of amendments
that accomplishes comprehensive reform.
By proposing a coherent set of amendments, we can develop our
vision of a better nation, facilitating the work that will win
partial victories short of creating a constitutional convention—and
perhaps victories at the state level as well. In order to work
for a new national convention, we need not all agree on every
goal, only on the need for major reform. From any individual’s
point of view, of course, opening up the Constitution to major
changes will present the risk of making it worse. But if the convention
itself is designed to include some of the reforms (public financing,
public broadcasting, etc.) that we hope it will impose on the
Constitution, the risk may pay off.
States could put the question of supporting a convention to a
public vote or create requirements that must be met for citizens
to force such an initiative to a vote. A more deliberative procedure
might be tried as well. In 2004 and 2005, British
Columbia, Canada, made use of a tool called a citizen assembly.
The government randomly selected 160 people: eighty women and
eighty men representing each electoral district and native peoples.
The assembly was assigned to review a single major issue, in this
case the province’s system of representative government. It heard
from experts and held public hearings all over the province. It
recommended policy changes that included shifting to a multi-seat
proportional representation system. In 2005, 58 percent of the
public voted for the proposal, but 60 percent was required for
passage. However, the reform idea had gained momentum and appeared
likely to eventually pass. The citizen assembly idea has now taken
hold in Ontario, Quebec, and New Brunswick as well. In 2007, a
citizen assembly in Ontario recommended changing the province’s
electoral system to allow for proportional representation, but
the proposal was defeated in a public referendum.
A similar idea is “deliberative polling” as proposed by James
Fishkin. A representative random sample of citizens are brought
together in small groups to discuss their concerns. They are provided
with factual information related to their concerns, and the groups
are assembled for a three-day process of deliberation, during
which they can consult with experts and policy makers. The more
democratic the process is through which we create a constitutional
convention, the more democratic will the outcome be.
Many of the changes that most need to be made at the constitutional
level could quite easily garner overwhelming popular support.
These would begin with an appropriate second bill of rights. They
would also include restrictions on abuses of power, as discussed
in the first sections of this book.
Under a new and improved Constitution, the people should have
the right to know the laws of the land and to have the laws applied
equally to everyone. While I expressed reluctance above about
amending the Constitution only to ban signing statements, a major
revision of the Constitution should certainly establish that the
president has no right to use signing statements or any other
documents to encourage the violation of laws as passed by Congress
and signed into law and no right to spend public (or private)
funds on any activity authorized only by a signing statement,
and that the Supreme Court has the exclusive power to rule on
the constitutionality of laws.
The president and his or her subordinates should also be forbidden
to create laws by (even if publicly) signing any document, be
it an executive order, a memo, a determiniation, a finding, a
directive, a proclamation, or any of the dozens of other labels
applied to decrees from on high. Congress should give the president
explicit and limited rule-making powers. All rules should be publicly
available. And Congress should be understood to have the power
to overrule them.
Government employees should have the right to expose violations
of the law by superiors without negative consequences. The executive
branch should be required to comply with oversight requests from
Congress, a congressional committee, or the Supreme Court, and
in order to claim any privilege from doing so should be required
to present its case in closed session and abide by the decision
of the Congress or the congressional committee or the courts.
The vice president should be required to comply with all laws
and rules applying to the legislative branch and to engage in
no executive branch activity. The House, Senate, or any committee
thereof should explicitly possess the power to hold noncompliant
witnesses in contempt and to imprison them until the end of a
two-year Congress in the case of the House or a House committee,
or for a maximum of six years in the case of the Senate or a Senate
committee. And so on.
Another important goal in revisiting the Constitution would be
to deny the rights it conveys to corporations, while extending
humans’ rights into the workplace and into privately owned spaces
such as shopping malls. Corporations are not mentioned in the
Constitution, but at this point it is probably going to take a
Supreme Court decision or a constitutional amendment to strip
them of rights that should belong to us.
There has been progress on this front. Localities around the country,
including Humboldt County, California, have denied corporations
personhood and forbidden them from, for example, giving money
to political campaigns, or from dumping sewage sludge on farms.
We should follow these examples as well as legislating at the
federal level a repeal of falsely claimed corporate power. We
should repeal the antilabor Taft-Hartley Act, which limits the
right to form unions and to strike, and pass the Employee Free
Choice Act, which enforces the right to form a union. We should
bust up all corporate monopolies. We should not allow any corporation
to become so dominant that when it goes broke the government claims
an obligation to bail it out with our children’s money for our
own good. And we should prevent our government from engaging in
such bailouts, particularly without the approval of Congress as
required by the Constitution. But our hands will still be tied
as long as corporations are considered constitutional persons.
On December 20, 1787, Thomas Jefferson wrote to James Madison,
listing items he thought belonged in the Bill of Rights. He began
with these: “freedom of religion, freedom of the press, protection
against standing armies, restriction of monopolies, the eternal
and unremitting force of the habeas corpus laws, and trials by
jury in all matters of fact triable by the laws of the land .
. .” Yes, restriction of monopolies. Jefferson thought that was
centrally important, and I think he was right.
A great deal of useful information on the problem of corporate
personhood is available from the Program on Corporations, Law
and Democracy (POCLAD). One result of the legal fiction that a
corporation is a person is that the rights of real live people
vanish on private property, making it hard to talk politics where
people do their shopping or to talk union where we work. My friend
Mike Ferner, a member of POCLAD, complained (in an e-mail to me),
can’t walk up to a rail car sitting in a siding and try to measure
the radiation coming from the decommissioned reactor vessel
it’s carrying (a real incident a few years ago outside Toledo,
Ohio) without getting arrested for trespass, but corporations
can prohibit OSHA [the Occupational Safety and Health Administration]
and other agencies from making inspections without a warrant.
Citizens in Vermont can’t pass an initiative that requires dairy
product packaging to state if rBGH has been used, because the
dairy industry has “negative free speech” rights, meaning they
DON’T have to say something if they don’t want to; just as utility
companies can prohibit consumer groups from including conservation
messages in utility bill mailings, because the companies have
“negative free speech” rights. . . . Not to mention all the
decisions local governments can’t make (keeping out big box
stores, refusing to site or expand a toxic waste dump, keeping
out certain industries, etc. etc.) because of running afoul
of the Commerce Clause and subsequent SCOTUS interpretations.
Congress recently stripped us of our Fourth Amendment rights when
it “modernized” FISA. Maybe it can do the same for corporations.
Maybe citizens can be given the positive right to include community
messages in utility mailings. Until we can amend the Constitution,
maybe we can strip corporations, piece by piece, of the rights
they have usurped. And maybe we can restore the sort of death
penalty that we can all agree on: the people’s right, through
our elected representatives, to end a corporation’s charter.
One path to removing corporate personhood, without a constitutional
convention, might be through the Supreme Court. In October 2008,
Ralph Nader spoke with Supreme Court Justice Antonin Scalia about
this question and reported on that conversation:
asked him how the application of the Bill of Rights and related
constitutional protections to the artificial creations known
as corporations can be squared with a constitutional interpretation
theory of “originalism.” Justice Scalia said he had not put
much thought into unconstitutional corporate personhood, but
if a case was brought before him on the topic, he would be happy
to delve into it. Unconstitutional corporate personhood is the
central issue that prevents equal justice under the law and
provides privileges and immunities to corporations completely
outside of the framers’ frame of reference in that large hot
room in Philadelphia during the summer of 1787. The $700 billion
blank check bailout of Wall Street is the latest manifestation
of private corporate domination of our national government,
a situation that Franklin Delano Roosevelt foresaw as “fascism”
in a message to Congress in 1938.
Another major reason for a constitutional convention is the pressing
need for changes to the basic structure of our government, our
system of elections and representation, the design of the three
branches, and the need to limit the corrupting influences of media,
money, and parties. While we’ve grown accustomed to “spreading
democracy” abroad with bombs, we need to consider nonviolent approaches
to producing more democracy here at home.
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8 , 2009
published every Thursday
Bill Fletcher, Jr.
Est. April 5, 2002
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