What Are Constitutions For?

We don’t talk about amending the Constitution. I suspect that’s because we don’t really know what constitutions are for. Nobody taught us. I’m going to take a few paragraphs to lay this out and propose a few amendments to chew on.

Constitutions, in general, secure the specific character of the nation against other political and non-political activities. The US Constitution’s purpose isn’t obvious, but it is to secure the conditions of self-governance. It allows arenas of discretion and formation that do not fundamentally alter the conditions of self-governance. No matter what else the US professes to be, we profess to be a self-governing nation, which means that all laws that degrade the equal opportunity of citizens to participate in their governance should be forbidden, and the productive capacity of the nation, if it produces nothing else, should also be put to securing the infrastructure required for self-governance.

In general, we want legislators to be able to make laws that realize the considered judgement of the people concerning their institutions, but we want an overarching authority that forbids the making of laws that undermine the conditions of equal opportunity to participate in self-governance. The Constitution is this overarching authority that secures the conditions of self-government.

While the concern for equal participation in the governing apparatus immediately identifies political rights, there are a host of non-political rights that must be constitutionally secured as enabling conditions for equal political participation.

For example, you need constitutional protection for property rights because if nothing else, you need to be recognized as the owner of your body and words to function as an acting and speaking citizen, regardless of the outcome of any particular legislative campaign or vote. While property isn’t a political right, property rights are an enabling condition that make the exercise of political rights possible. They are secured through the Constitution’s 14th Amendment. We also need protection against household and civil domination, so that however else we allow institutions in civil society and families to operate, the equal opportunity to participate in self-governance is preserved. The end of governing is modifying all of these different spheres of right, e.g., legal, property, family, civil into a unity that upholds them all as modes of self-determination. And if we are to be self-governing, that means we need recognized institutions through which we are empowered to modify these non-political institutions of right into a unity. Those are your political institutions.

We can talk about the Founders being racist and sexist in how they discussed suffrage and who really counted as a full participant in government, but John Adams’ arguments for limiting suffrage to propertied White men came down to the understanding that everyone else’s political independence was compromised by their participation in systems of domination.

But why exclude Women? You will Say, because their Delicacy renders them unfit for Practice and Experience, in the great Business of Life, and the hardy Enterprizes of War, as well as the arduous Cares of State. Besides, their attention is So much engaged with the necessary Nurture of their Children, that Nature has made them fittest for domestic Cares. And Children have not Judgment or Will of their own. True. But will not these Reasons apply to others? Is it not equally true, that Men in general in every Society, who are wholly destitute of Property, are also too little acquainted with public Affairs to form a Right Judgment, and too dependent upon other Men to have a Will of their own? If this is a Fact, if you give to every Man, who has no Property, a Vote, will you not make a fine encouraging Provision for Corruption by your fundamental Law? Such is the Frailty of the human Heart, that very few Men, who have no Property, have any Judgment of their own. They talk and vote as they are directed by Some Man of Property, who has attached their Minds to his Interest.

By Adams’ light, laborers couldn’t be politically independent because they were tools of their employers. Women are too overwhelmed with childcare to think politically. His answer is to restrict the vote; my answer is to get rid of the conditions of domination. Insofar as we are serious about extending political powers to non-independently wealthy men and women, we need to be serious about securing their non-political freedoms of labor and family life, towards the end of political freedom.

If there is any slim virtue in Adams’ comments, it’s in his acknowledgement that conventional labor and household relationships suffocate the possibility for equal participation in political self-determination. This isn’t a matter of whether workers and women could vote; it’s a matter of whether their social position enabled them the political independence and peace of mind and resources to be full political participants.

By the way, you’ll find the meat of this argument in extended form in Winfield’s The Just State.

Here are three proposed Amendments to discuss:

Legal Care — You can’t be politically free if you are legally vulnerable. As it stands, we have a nation of laws with asymmetrical access to legal advocacy. As long as wealth determines access to lawyers, then we just have a oligarchy that gets laundered through the courts, and that spills into our ability to participate in the institutions of self-governance.

Federal Job Guarantee — We live in a modern economy that requires employees for our production needs, and companies and production schemes sufficiently large that people cannot compete. If you want to secure workers political independence is to secure them civil independence through access a good, unionized job at fair wages.

Universal Childcare — If Adams is right and housework overwhelms political concern, then we need to reorganize housework to enable political freedom. Angela Davis has a FANTASTIC essay on this called, “On the Approaching Obsolescence of Housework.”