From "By What Authority," a publication of the Program on Corporations…

From "By What Authority," a publication of the Program on Corporations, Law and
Democracy (POCLAD), Vol. 9, No. 1· Spring, 2007.


               A U.S. Constitution with DEMOCRACY IN MIND
                            by Virginia Rasmussen and Greg Coleridge

Editor's note: We received a generous number of responses to our request for feedback on
last issue's article, "The U.S. Constitution: Pull the Curtain." The point most frequently made
cautioned us on haste, on We the People being "up to such a task." Were we not "opening a
can of worms?" One correspondent suggested that "current 'oilgarchs' would like nothing
better than for the people themselves to delegitimize the one document they can't... totally
erase."

We in POCLAD respect the warnings and recognize the danger of leaping onto unprepared
ground. Nonetheless, the Constitution seeps its way into current realities for both good and ill.
If more deeply understood it can serve us well in our work toward a worthier "founding"
document and democracy. At this time we might see this exploration as a learning tool, an
exercise. And isn't it a juicy one?

Introduction


                   "...it may be proved that no society can make a perpetual constitution, or even a
                   perpetual law. The earth belongs always to the living generation. They may
                   manage it then, and what proceeds from it, as they please, during their usufruct.
                   ...Every constitution, then, and every law, naturally expires at the end of 19 years.
                   If it be enforced longer, it is an act of force and not of right."
                                         --Thomas Jefferson in a letter to James Madison, 1789


The focus of POCLAD's vision is democracy. The work required to move toward a democratic society
is about us ­ our learning, rethinking and claiming the power to self-govern. That power is largely
expressed and experienced through law and in the mutual obligation law, in part, engenders. In many
would-be democracies, the nature and spirit of that law are captured in a Constitution.

If constitutional ground rules are weighted against people and in favor of property,
against life and for the material, our capacity to achieve a just and democratic society
is doomed unless we critique and change that defining law.

Constitutional change by the people of the U.S. is near impossible. It has occurred through
the amendment process, a demanding exercise in social movement-building over
generations. We can opt to argue and organize on behalf of more democratic judicial
interpretations of the Constitution, a noble if plodding single-issue approach that will leave any
real democracy constitutionally-impaired for centuries. Can we do better? Should we try?
At this time we're not calling for a Second Constitutional Convention, but extending an
invitation to reflect on a variety of questions were we to call such a gathering. Let's start at the
beginning. Who would be there and how would they be chosen? What elements would be
included and who would set the agenda? What processes of facilitation, discussion,
deliberation, conflict resolution, and decision-making would be used? What rights and
protections would be guaranteed for people and for nature's many life forms? How would
powers be delegated in a Constitution that allowed democracy to flourish and be sustained
over time?

Jamin Raskin, a teacher of constitutional law at American University, claims that the
Constitution "remains deeply compromised by its historical concessions to the political
institutions of white supremacy and the interests of elite rule." For Raskin, "defending the
Constitution requires changing it." There will be "a lot more constitutional growth" if we are to
make of ourselves a democratic people.

This imagining and reframing in fundamental, holistic ways can clarify our vision and show us
the smarter, truer path to change. It can help us make of the Constitution the "living
document" of Jefferson's imagination.

                                             The Preamble

The Constitution's opening holds the possibility, if not the promise, of democracy. It can serve as
tether and guide to later passages.


             "We the people of the United States, in order to form a more perfect union, establish
             justice, insure domestic tranquility, provide for the common defense, promote the
             general welfare, and secure the blessings of liberty to ourselves and our posterity, do
             ordain and establish this Constitution for the United States of America."


With the rights of sovereignty come the responsibilities of sovereignty. Can we find a way to impress
these responsibilities and obligations in a constitutional document? Should we? Placing our lives
and governance in the hands of our neighbors and country-mates raises serious doubt
today. It can only be done if each of us has sufficient trust in the other­ admittedly, a
tall order. What does such confidence entail? What should our educations include to build
that confidence? What kind of democratic skills must become part of our every day, thus
shaping assumptions about who each of us is and can be trusted to be? What do the earth's
sustaining processes have to tell us? Is it appropriate that any new Constitution address the
provision of the time and venues for tending this participatory democratic work?

                                        Rights Due the People

One of the central tenets of the Declaration of Independence is the right of the people to alter or
abolish any government that no longer serves them. Nowhere is this critical feature found in the
Constitution. Adapting the Declaration's language slightly, we might include:
             "We hold these truths to be self evident, that all people are created equal, that they are
             endowed by their Creator with certain unalienable Rights, that among these are Life,
             Liberty, Justice and the pursuit of Happiness. That to secure these Rights, Governments
             are instituted among people, 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. ...But when a long
             train of abuses and usurpations, pursuing invariably the same Object evinces a design
             to reduce them under absolute Despotism, it is their right, it is their duty, to throw off
             such Government, and to provide new Guards for their future security."

Our First Amendment provides people with valued protections from government intrusion. It has
served important aspects of democratic participation and dissent. But neither the Bill of Rights nor the
original Constitution grants the people the powers to govern in direct and defining ways. Access to
those rights and powers is held by a propertied and corporate elite in league with an economic
system designed to keep the governing few relentlessly safe and separate from the many.

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             Many of our state constitutions contain decisive language on behalf of a
             sovereign people and the prohibition of any kind of corporate governing rights.
             We have this valuable history to draw upon.

             "All political power is inherent in the people, and governments derive their just powers
             from the consent of the governed" (Arizona Constitution).

             "The people of this Commonwealth have the sole and exclusive right of governing
             themselves... Government is instituted for the common good, for the protection, safety,
             prosperity and happiness of the people, and not for the profit, honor, or private interest
             of any one man, family, or class of men..." (Massachusetts Constitution).
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Were we to have a convention for a constitutional rewrite, what rights would be guaranteed in
order to make freedom, justice and democracy real for all, children included? How
would we assure that the right to self-governance, to shape both the political and
economic decisions that define our lives, rest with the people? We can learn from the
grassroots work of Democracy Unlimited of Humboldt County (DUHC, www.duhc.org) and
include in our drafting process the denial of personhood designation or constitutional rights
and powers to any other than natural persons. Corporations do not qualify! See the Winter
2007 issue of By What Authority for more information on this work.

And how would we write into our founding law civilian control over military institutions and so-
called "intelligence" establishments, both of them now far beyond the reach of and
accountability to We the People? When military solutions are preferred over attention to policy
and political engagement, the least democratic of our institutions are empowered, soaking up
resources needed for people's needs and enabling ideologues to set national priorities.

The 1948 Universal Declaration of Human Rights, never ratified by the U.S. Senate,
addresses a magnificent array of rights in seven categories: civil, economic, cultural,
political, social, gender, and developmental. The articles are simply stated. Could we do
better than to draw from this work of Eleanor Roosevelt and her U.N. colleagues nearly sixty
years ago?

Here is a selection of those rights that we have yet to take for ourselves in this country,
including the right to define and control our political process, the right to majority rule in
presidential elections, along with the right to equally funded public education, to health care,
housing, meaningful work and a living wage:

   *   Everyone, as a member of society, has the right to social security and is entitled to... the
       economic, social and cultural rights indispensable for their dignity and the free development of
       their personality.
   *   Everyone has the right to work, to free choice of employment, to just and favorable conditions
       of work...
   *   Everyone, without discrimination, has the right to equal pay for equal work.
   *   Everyone has the right to form and to join trade unions for the protection of their interests.
   *   Everyone has the right to a standard of living adequate for the health and well-being of
       themselves and their family, including food, clothing, housing, medical care and necessary
       social services...
   *   Everyone has the right to education... technical and professional education shall be made
       generally available and higher education shall be equally accessible to all on the basis of merit.
   *   Education shall be directed to the full development of the human personality and to the
       strengthening of respect for human rights and fundamental freedoms...
   *   Everyone has duties to the community in which alone the free and full development of their
       personality is possible.


Additionally, we'd want to consider the people's power to recall elected leaders. Would these go
beyond the current requirements for impeachment? Would they be measures more directly accessible
to the people?

                      The Rights of Nature, Property and the Commons


                           "The right of citizens of the United States to use and enjoy air, water,
                           wildlife, and other renewable resources determined by the Congress to be
                           common property shall not be impaired, nor shall such use impair their
                           availability for the use of future generations."
                                           --Indigenous People's Seventh Generation Amendment
How do we, as participants in a diverse global community of communities, establish the limits
essential to a sustainable functioning of the parts and the whole? No longer can we see ourselves as
safe and apart from the limits imposed by a finite planet or the stress and deficiencies "of less happier
lands," to quote the Bard.

As the legitimate source of all governing authority, it is the people's right to draw
inspiration from nature and our diverse human communities in creating a Constitution
and a new kind of jurisprudence. We can, with sufficient courage, create a people-
earth law rather than allowing the "judges" to impose a kind of law that flows from the
patriarchal, aristocratic, empire seeking, slave-owning, corporate structures of the
past. The future, if there is to be one, must evolve from a democratic and earth-connecting
framework that reveres all of life.

Christopher Stone, in his classic essay, "Should Trees Have Standing?", asks what kind of
public authority would be required to "give some amount of review to actions that are
colorably inconsistent" with the legal rights we grant to members of the environmental
community? How will our new Constitution define property that can be held in private such as
clothing, the tools of one's trade, home and furnishings, and that which shall be held in
common? In what ways can we grant protections to both the natural and the social commons
­ water, land, language, works of creativity, the airwaves and media?

The Community Environmental Legal Defense Fund (CELDF, www.celdf.org) is a resource for
our constitutional writing process. It has assisted communities in Pennsylvania to write
ordinances that acknowledge the rights of "natural communities and ecosystems" and
establish a "system to enforce and protect those rights against corporations and other
business entities."

                          Delegation of Powers and Amendment Process

The structure of government and the jurisdictions to which we delegate decision-making over the
political, social, cultural, economic and environmental firmament require fresh thinking. Scale is
critical to effective governance, whether in relation to the place-based, contextual knowledge
necessary for earth-stewardship or to correct failing political and social systems.


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                    "...with all human processes: undisciplined expansion and self-inflation led only to
                    destruction. Apart from the well-being of earth, no subordinate life system can
                    survive. So it is with economics and politics: any particular activity must find its
                    place within the larger pattern, or it will die and perhaps bring down the larger life
                    system itself. This change of scale is one of the most significant aspects in the
                    change of consciousness that is needed."
                                                                          ­Thomas Berry, The Dream of the Earth
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How can we draw boundaries within the country so that people's learning and experience best serve
the resiliency of human and earth systems? Decentralizing decision-making units and harmonizing
them with bioregional systems may draw wider contemplation as awareness grows of human-caused
climate change and looming environmental threats.

                         "The survival of our species and health of the Earth family depends on our ability
                         to transform governance systems so that humans become part of the ecological
                         matrix of biological and cultural diversity."
                                                                                       ­Vandana Shiva


What processes might we establish to allow for revisiting and amending this new Constitution?
Should we heed Jefferson's conviction that Constitution and law need a rewrite every generation?

Lastly, constitutional rethinking largely concerns matters of rights and protections.
But such matters are inadequate to the fair, democratic, sustainable conduct of
national and global life. As referenced at the outset of this essay, "mutual obligations"
play a central role within all communities, great and small. Should rights be gained,
we'd face the threshold question, "What do we do now?" How do we hang on to hard
won rights for ourselves, others, the flora and fauna?

Our obligations to one another are the consequence of growthful social learning that runs
deeper than law and Constitutions. If we fail to develop obligation's necessary role in the
coming century, we will fail the best intentions written into any new U.S. Constitution.

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References and Recommended Reading

Thomas Berry, The Dream of the Earth, San Francisco: Sierra Club Books, 1988.
Cormac Cullinan, Wild Law: A Manifesto for Earth Justice, Green Books and The Gaia
Foundation, 2003.
Robyn Eckersley, The Green State: Rethinking Democracy and Sovereignty, Cambridge, MA:
MIT Press, 2004.
David Ehrenfeld, Beginning Again: People & Nature in the New Millennium, New York: Oxford
University Press, 1993.
Vandana Shiva, Earth Democracy: Justice, Sustainability and Peace, Cambridge, MA: South
End Press, 2005.
Christopher Stone, Should Trees Have Standing?­Toward Legal Rights for Natural Objects,
Los Altos: William Kaufmann, Inc., 1972.

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