is the title of this important New York Times op ed by William Forbath, who teaches history and law at the University of Texas.
Forbath points out that in both the opinion for the Court by John Roberts on ACA and the dissent by the other four conservatives, there is a vision of America, and a "doctrinal and rhetorical" line of attack against the policies of the New Deal and the Great Society.
And yet, that is almost certainly a misreading of the intent of Founders such James Madison, and ignores a broad sweep of our history.
Let me start with Forbath's opening paragraph:
WORK and opportunity, poverty and dependency, material security and insecurity: for generations of reformers, the constitutional importance of these subjects was self-evident. Laissez-faire government, unchecked corporate power and the deprivations and inequalities they bred weren’t just bad public policy — they were constitutional infirmities. But liberals have largely forgotten how to think, talk and fight along these lines.
One can fairly say that post-Civil War policy, the Progressive Era, the New Deal, and the Great Society all saw a requirement for fulfilling the principles of our Constitution, as stated clearly in the Preamble, for the Federal government to take on responsibilities that ensured both the promoting of the general welfare and the securing of the blessings of liberty.
Please keep reading.
I do urge you to read and contemplate the entire op ed. It is worth your time.
I want to focus on what I see as the heart of the argument, three paragraphs that I will quote uninterrupted. The words are offered as an alternative to the constitutional vision that underlies both the opinion by Roberts and the dissent by Kennedy, and specifically in criticism of modern liberals not offering a clear vision to oppose that pushed by conservatives such as those on the Court. Forbath criticizes the lack of a coherent response as follows:
That’s a major failing, because there is a venerable rival to constitutional laissez-faire: a rich distributive tradition of constitutional law and politics, rooted in the framers’ generation. None other than Madison was among its prominent expounders — in his draft of the Virginia Constitution, he included rights to free education and public land.
Likewise, many framers of the Reconstruction amendments held that education and “40 acres and a mule” were constitutional essentials that Congress must provide to ex-slaves. They also held that equal rights and liberty for white workingmen required a fair distribution of initial endowments, including free homesteads and free elementary and secondary education, along with land-grant-funded state colleges.
In the wake of industrialization, turn of the century reformers declared the need for a “new economic constitutional order” to secure the old promises of individual freedom and opportunity. America was becoming a corporate oligarchy, making working people wage slaves, impoverished and ill-equipped for democratic citizenship.
I want to focus specifically on the final sentence above:
America was becoming a corporate oligarchy, making working people wage slaves, impoverished and ill-equipped for democratic citizenship.
We are again becoming a corporate oligarchy, only this may require some clarification, because not all corporations are created equal: in the modern version, energy and financial services corporations are more privileged, and manufacturing is considered of less value, because it can be outsourced and off-shored to locations with lower wages, no concern for environmental degradation, no protection of the rights of workers. Even many of the new service jobs, such as call centers and online tutoring, can be similarly removed from within our borders. This creates downward pressure on wages, at the same time as the rights of workers to bargain collective is weakened both by law and by economic pressure, health care and education get more expensive, security for old age gets weakened with the disappearance of defined benefit pensions and pressures to limit the benefits of Social Security. Increasingly working people, including those with education and whose occupations would previously have had them considered to be working class, are becoming wage slaves.
Whether or not that makes the ill-equipped for democratic citizenship, we are seeing the instruments and structures of democratic citizenship being dismantled: elected school boards replaced by appointed governance structures, local schools being turned over to corporate interests, using artificially created financial crisis resulting from lack of regulation of the energy and especially the financial sector and the refusal to fairly tax corporations and the wealthy as an excuse for dismantling local government in Michigan, privatizing of what is left of the commons - not only schools but also sanitation and police and selling off publicly owned transportation and water services. Most of all we see it in the deliberate increased disenfranchisement of many - the elderly who lack financial resources, the young who are being crushed by the cost of higher education, the many who have the futures destroyed by one mistake resulting in artificially rates of felony convictions (increasingly because of the desire of those running private prisons to make a profit).
Bill Clinton was fond of quoting a passage from Proverbs 29:18: Where there is no vision, the people perish. While those words were as used by the former President somewhat out of context, they are relevant to what I am discussing. And they are very relevant to what Forbath has written.
What is our vision of America? What is our understanding of the Constitution and the Bill of Rights? What is the message we can deliver, not piecemeal in response to individual threats, but as a sweeping vision around which we organize.
I believe the country is hungry for such a vision, despite their being manipulated by fears of various sorts. I think in part the reason Obama was elected so strongly in 2008 was that his words presented a broader vision of what America could be. Young people responded as they often do when someone offers the promise of something greater than themselves - think no further than the response to the words of Jack Kennedy in his inaugural address: Ask not what your country can do for you - ask what you can do for your country - and remember how many were inspired to do things like volunteer for the Peace Corps, and even after his death how many were motivated to work for change in the direction of social and economic justice.
Forbath talks about FDR. Perhaps that is a fair discussion to consider in our time. Roosevelt did at times offer a sweeping vision, to a nation and a people crushed by depression, by economic fear. Like Obama, he did not always live up to the sweep of his vision - after all, the price for getting much of his New Deal program through was to allow exclusion from some of its benefits for those then called Colored or Negroes - it was the political price paid for gaining the necessary support from Segregationist Southerners. And yet that did not prevent Roosevelt from continuing his rhetorical attacks, from continuing to offer a sweeping vision, such as in the speech known as the Second Bill of Rights. His successor Harry Truman won an outright electoral college victory in a four-way race at a time when there were economic issues by attacking the "Do-Nothing Congress" that had refused to address the real need of the American people, much as the Republicans in the current Congress have been more concerns with rhetorical attacks on the President and mollifying or even riling up their base than looking at the needs of the people as whole.
If our Constitution cannot be interpreted in a fashion that protects the basic needs of the working people of this country, then it is a failure as a document.
It may have been created by men who were themselves of wealth and power. And yet, they had lived through turbulent times, crushing debt from one war (French and Indian) leading to a rebellion against an authority (England) that was not meeting their needs. Those people understood that while a nation needed economic vitality, it had to provide its people with something more - that is why the likes of George Mason, author of Virginia's Declaration of Rights, insisted the Constitution needed protection of the basic rights of people against the power of the government.
Jefferson also believed in the need for a Bill of Rights. Jefferson, the primary author of the Declaration, included along with that accomplishment his authorship of the Virginia Statute of Religious Freedom and his founding of the University of Virginia as the only accomplishments he wanted on his grave site. Jefferson felt that government must meet the needs to the people: if I may quote the appropriate words from the Declaration:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Happiness and safety are not merely issues of economics and military security. Those words about the pursuit of happiness are important - the aspirations of all the people matter.
It took as a nation and a society too long to move to fully implement that vision. Those excluded included Blacks, Native Americans, women. Nowadays some would exclude from that vision by religion or by national origin or how one's family arrived in this country, as if some of our now prominent people were not themselves descendants of "criminals" (as in Oglethorpe's Georgia) or entered or stayed illegally in the US generations before. Whatever one's origins were, it did not matter if one was prepared to fight on behalf of the security of this nation - although it took too long to fully recognize and use the fighting abilities of American Blacks as a regularly part of our military, to include women, to recognize that gays could be patriotic and shoot just as straight as "straight" people. And it has never mattered when the government collected taxes.
If our vision of America is not inclusive of all
If our responsibility to America does not require all to give back for the benefit of all
If we allow a definition of America to make some more "worthy" than others, be it by race, gender, wealth, age, sexual orientation, religion, national origin or any other distinction
If we allow a politics that presumes the only way to win elections is not to appeal to and inspire all the people but to demean and limit the political participation of those one views as less worthy or of a different political or religious perspective
If we do not offer a compelling and sweeping vision that is inclusive and inspiring
then the rest of our politics is pointless, and we will continue to see what is left of democracy be eroded.
Forbath calls it a Workingman's Constitution.
I call it the fulfillment of the Democratic promise, of the dream of what America could and should be.
I am unwilling to settle for anything else.
What about you?