The United States Constitution is a fascinating thing. It is probably the oldest still-operational framework for a constitutional democratic republic, and as such, deserves the pride of place it receives when we discuss the evolution of political systems. But the fact of its antiquity is also its main drawback: the Federal Constitution hasn't kept up with new scholarship on political rights, nor on the changing nature of civilization. This Constitution Series will outline drafts of further amendments to the Federal Constitution, with the express intent of making the United States of America the freest, fairest, most functional, and most prosperous nation in the world. No half-measures or stopgaps here!
Note that I am not concerned with what is politically feasible or what is likely to pass. Instead I am concerned with making the Federal Constitution a better, more functional, more progressive, more "out-in-front" document, just as it seemed in 1790, as compared to the other systems then present in the world. I will, however, be concerned with how to integrate the proposed amendments into existing law, and how they interact with the rest of the Constitutional text.
First let's talk about rights theory a bit. In our Federal Constitution, there are mostly first-generation rights. Think of the French motto "liberty, equality, fraternity," and you'll understand the generations of rights:
First-generation rights are concerned with restraining state action to preserve individual liberty, like when the government refrains from mandating a specific religion. They are sometimes known as "blue" rights.
Second-generation rights, in contrast, force state action in order to preserve individual liberty, such as when a government provides housing for low-income citizens. The Federal Constitution received several of these during Reconstruction (the Fourteenth Amendment's equal protection clause is a prime example) and the Progressive Era, but much second-generation scholarship came from Marxist and other socialist thinkers, and so many such rights did not become integrated into our Constitution. They are sometimes called "red" rights, for obvious reasons.
Third-generation rights are sometimes described as "group rights." A familiar example may be Native American reservations; disadvantaged or otherwise abused groups have a right to self-determination, says the third-generation rights philosopher. A right to enjoy the common wealth of nature is another example. While the United States Federal Government practices some of these rights, they are mostly absent from the Federal Constitution. The third generation is sometimes called "green" rights.
Having discussed rights theory (and wholly ignored the criticisms of the three-generations concept), let's move on to what I propose to be the Twenty-Eighth Amendment to the Federal Constitution, the first Amendment in a Second Bill of Rights (no relation). Here is the text:
No citizen of the United States shall be made to live without a wage adequate to the pursuit of happiness, received by the exchange of suitable labor.
This is clearly a second-generation right; fair labor and wage standards are something a government must enforce, rather than something a government can let be and have it flourish. But we must detail exactly what the text means, to prevent perfidious redefinition by opponents.
Given our current immigration debate, "[n]o citizen of the United States..." may seem a little harsh; shouldn't anybody living in the States receive a fair wage? Well, sure. No argument from me on that point. But legally, it would be difficult for the Federal Government to administer standards for noncitizen workers; the system is already heavily geared toward citizen workers through things like E-Verify. Moreover, many other Amendments (Fourteenth comes to mind) offer rights only to citizens, for an obvious reason: offering rights to all people turns into a sort of slippery slope fallacy. No national government can guarantee the rights of the whole world.
The next clause is "...shall be made to live without..." and the reasoning here is obvious: suppose there are people who elect not to work in a wage- or salary-earning business. Artists and novelists come to mind; so do entrepreneurs and parents. And so, anyone who elects to earn a living shall enjoy a high standard; if one elects otherwise, that's fine too.
Next, "...a wage adequate to the pursuit of happiness..." This is perhaps a bit overly poetic of me, but I feel the use of the phrase "pursuit of happiness" is a uniquely American way of demonstrating my meaning. What I'm getting at here is not just a basic income, and not just a living wage, but a living-and-getting-ahead wage. I have had direct experience with poverty all my life, and I can tell you the most soul-crushing and frustrating part of it: never being able to get one step ahead of the cycle. You can never quite put away enough money to get ahead, because you have to spend such a large percentage just staying alive. I do not propose we fund everyone's hobbies or blind dreams from government coffers; I do, however, propose that the nation will be a stronger and happier place if everyone has a little less to worry about.
What, then, is a wage adequate to the pursuit of happiness? A living wage varies from county to county, so what might it be for the whole nation? One method we might take is to recouple the minimum wage to inflation; the minimum wage peaked in purchasing power in 1968, at $1.60 an hour (in 2014 money, $10.88 an hour). We are sometimes counselled to squirrel away 10% of our income to savings, so let's add 10% onto $10.88, and get $11.96 an hour, or round it to $12 an hour. An alternate method is to recouple the minimum wage to average worker productivity, which would produce a much higher wage; this study indicated a productivity-linked minimum wage should have delivered $21.72 an hour in 2012, which would near $23 an hour by 2015, or $25.30 an hour with our 10% savings bonus added in. These are two extremes; the correct value is somewhere in between. But any wage adequate to individual goals (say, my goal of putting disc brakes and a rebuilt engine in my classic car) would lean toward the higher of the two.
The final clause is "...received by the exchange of suitable labor." I add this clause for two reasons: one, because it may be valuable to reiterate the importance of working for an income (but that's a bit patronizing), and two, because what's "suitable" will change over time as technology and the labor market evolve. Suppose, in fifty years, widespread cheap local additive manufacturing, cheap reliable robotics, and ubiquitous access to information makes most traditional industrial and service jobs obsolete; at that point, "suitable labor" may be entirely creative or artistic, or something we can't even imagine. If we were to leave out the word "suitable," then our current definition may be constitutionally linked to "labor" for as long as the Constitution persists - which would stifle that change. One of the most important additions we can make to the Federal Constitution is to improve its flexibility.
I'm sure this text won't satisfy everyone, even if we were all to agree on the goal inherent in it. But I offer it as a possible starting point.
Next in the Constitution Series: no. 2, the Twenty-Ninth Amendment, an amendment to ensure the right of Americans to education and health care. (That post won't be nearly as long as this one.)
Thanks for reading!