Human Rights Of, By, and For the People: How to Critique and Change the US Constitution

Together, the US Constitution and the Bill of Rights comprise the constitutional foundation of the United States. These—the oldest governing documents still in use in the world—urgently need an update, just as the constitutions of other countries have been updated and revised. Human Rights Of, By, and For the People brings together lawyers and sociologists to show how globalization and climate change offer an opportunity to revisit the founding documents. Each proposes specific changes that would more closely align US law with international law. The chapters also illustrate how constitutions are embedded in society and shaped by culture. The constitution itself sets up contentious relationships among the three branches of government and between the federal government and each state government, while the Bill of Rights and subsequent amendments begrudgingly recognize the civil and political rights of citizens. These rights are described by legal scholars as "negative rights," specifically as freedoms from infringements rather than as positive rights that affirm personhood and human dignity. The contributors to this volume offer "positive rights" instead. The Universal Declaration of Human Rights (UDHR), written in the middle of the last century, inspires these updates. Nearly every other constitution in the world has adopted language from the UDHR. The contributors use intersectionality, critical race theory, and contemporary critiques of runaway economic inequality to ground their interventions in sociological argument. Keri E. Iyall Smith is Associate Professor of Sociology at Suffolk University in Boston, Massachusetts and is author of The State and Indigenous Movements (Routledge). Louis Edgar Esparza is Assistant Professor of Sociology and Latin American Studies at California State University at Los Angeles. Judith R. Blau is Professor Emerita at the University of North Carolina–Chapel Hill, retiring in 2014 after a teaching career that spanned forty-five years. Cover 1 Half Title 2 Title Page 4 Copyright Page 5 Dedication 6 Table of Contents 8 List of Illustrations 11 Notes on Contributors 12 Acknowledgments 16 1 Constituting Human Rights in the US 18 What is the Best Constitution? 19 A Path to Change 21 CVS 21 Note 23 References 23 Part I What’s Going On? 24 2 Why Revise? 26 What are Human Rights? 28 Generations of Rights 28 Struggle for Human Rights in the US 29 Civil and Political Rights 29 Checks and Balances? Or Watch your Back? 31 Subversive Tradition 32 Human Rights 36 Conclusion 42 Notes 43 References 45 3 Beginning the World Again: Social Movements and the Challenge... 47 The Clamor for Constitutional Change 47 Constitution Making 101 for Human Rights Advocates 48 A History of Amending America 50 Amending Society by Amending the Constitution 53 Notes 55 References 56 4 A Place Called Liberty 59 Toward an Imperfect Union 61 Americas—Encounters and Discoveries 62 Frontiers 63 Borders 64 A New Bill of Rights 69 Notes 70 References 70 Part II Claiming Our Rights 72 5 Wherefore “The Despotism of the Petticoat”?: American Women... 74 Women and Rights: A History 75 The Vote: Women’s First and Only Constitutional Amendment 77 After the Franchise: The ERA 78 Twentieth-Century Treaties and Normative Shifts 78 CEDAW 82 Constitutional Change and the Myth of Advancement 83 Gender and Sexuality Inclusions 87 Sociology Students “Re-vision” the US Constitution 88 Comparing Constitutions 88 Student Proposals 90 Conclusion 92 Notes 92 References 93 6 Human Dignity and Equality: Freedoms and Rights, Protection... 96 The Year, 2015 97 Elaboration 98 Human Rights: A Background 98 Freedoms and Rights: Number of Constitutions (out of 194) and Examples 99 Protections: Number of Constitutions (out of 194) and Examples 99 Fairness: Number of Constitutions (out of 194) and Examples 100 Security: Number of Constitutions (out of 194) and Examples 101 Discussion 103 Notes 103 References 104 7 Beyond Welfare, Workfare, and Employment: For a Basic Income as a Constitutional Amendment 105 The Rise and Fall of the Welfare State 107 From Welfare to Workfare 109 The Future of Employment 111 Conclusion: Towards a Basic Income 114 Note 116 References 116 8 Preserving Economic Security: Housing, Food, and Medical Care 119 Issue 1: Access to Affordable Housing 119 Representing Access to Affordable Housing as a Luxury 120 The Right to Housing in International Constitutions 121 Issue 2: Access to Food Security 122 Representing Food Security as a Luxury 123 The Right to Food Security in International Constitutions 124 Issue 3: Access to Affordable Medical Care 124 Representing Medical Care as a Luxury 125 The Right to Medical Care in International Constitutions 126 How it will Work 126 References 127 9 What Latin America and the Caribbean Teach the United States... 132 Constitutional Environmental Rights in the Americas 136 Protection of the Environment 139 Ecuador 140 Bolivia 141 Why Constitutional Environmental Rights in the US? 143 Notes 144 References 144 10 Revise Now! 146 Background: Inequality and Climate Change in the US 146 Inequality: Projections 147 Climate Change: Projections 147 Inequality and Human Rights 148 Who Causes Climate Change? 148 Inequalities and Climate Change 148 Conclusions: Other Countries’ Constitutions and the US Constitution 149 Notes 153 References 153 Part III Towards Action 156 11 Why A Sociology of Human Rights? 158 Sociology and Constitutional Reform 159 Human Rights and the Academy in the United States 162 Sociology and Human Rights 166 Conclusion 167 Notes 168 References 168 12 The Constitution Project: Implementing a Group Projects Structure 169 Structuring the Constitution Project for the Classroom 170 The Assignment 171 Challenges and Discoveries 172 Conclusion: What We Have Seen Can’t Be Unseen: So What Next? 177 References 178 13 For a Decolonized US Constitution 179 Decolonizing Our Minds 179 Kinship 180 Leadership Traits 181 Equality 182 Restorative Justice 183 Nature 184 In Contrast 184 Collaborative or Adversarial 185 Adversarial 185 Models for a Decolonized Constitution 187 How Can We Proceed? 188 Notes 189 References 189 14 The Universal Declaration of Human Rights as a Constitutional Model 191 Drafting the UDHR 192 Reflective versus Formative Events 193 Conceptual Challenges to Analyzing Rights (A Short Digression) 194 The Growth and Spread of Rights: UDHR in Historical Perspective 196 Norm Crystallization (Rights Concentration) 196 Innovation (Rights Proliferation) 197 The UDHR and the Concentration and Proliferation of Rights 198 Projection of the UDHR onto Subsequent Constitutions 198 Conclusion: What Would Constitutions Look Like Today Without the UDHR? 199 Notes 200 References 201 15 Rewrite for Rights: Creating a Modern Constitution 203 Appendix 1 Bill of Rights and Subsequent Amendments (Abbreviated) 205 Appendix 2 Universal Declaration of Human Rights: Adopted and Proclaimed... 209 Index 212 "Together, the US Constitution and the Bill of Rights comprise the constitutional foundation of the United States. These--the oldest governing documents still in use in the world--urgently need an update, just as the constitutions of other countries have been updated and revised. Human Rights Of, By, and For the People brings together lawyers and sociologists to show how globalization and climate change offer an opportunity to revisit the founding documents. Each proposes specific changes that would more closely align US law with international law. The chapters also illustrate how constitutions are embedded in society and shaped by culture. The constitution itself sets up contentious relationships among the three branches of government and between the federal government and each state government, while the Bill of Rights and subsequent amendments begrudgingly recognize the civil and political rights of citizens. These rights are described by legal scholars as "negative rights," specifically as freedoms from infringements rather than as positive rights that affirm personhood and human dignity. The contributors to this volume offer "positive rights" instead. The Universal Declaration of Human Rights (UDHR), written in the middle of the last century, inspires these updates. Nearly every other constitution in the world has adopted language from the UDHR. The contributors use intersectionality, critical race theory, and contemporary critiques of runaway economic inequality to ground their interventions in sociological argument."--Publisher description 1. Constituting Human Rights in the US by Keri E. Iyall Smith WHAT’S GOING ON? 2. Why Revise by Judith R. Blau 3. Beginning the World Again: Social Movements and the Challenge of Constitutional Change by Ben Manski 4. A Place Called Liberty by Rodney D. Coates CLAIMING OUR RIGHTS 5. Wherefore "The Despotism of the Petticoat"? American Women, Gender, and Constitutional Omissions by Susan C. Pearce and Kathleen B. Basile 6. Human Dignity and Equality: Freedoms and Rights, Protection, Fairness, and Security by Judith R. Blau 7. Beyond Welfare, Workfare, and Employment: For a Basic Income as a Constitutional Amendment by Steven Panageotou 8. Preserving Economic Security: Housing, Food, and Medical Care by Steven Foy 9. What Latin America and the Caribbean Teach the United States about Constitutionalizing Environmental Human Rights by K. Russell Shekha and Leah Edwards 10. Revise Now! by Judith R. Blau TOWARDS ACTION 11. Why a Sociology of Human Rights? by Mark Frezzo 12. The Constitution Project: Implementing a Group Projects Structure by Davita Silfen Glasberg 13. For a Decolonized US Constitution – Keri E. Iyall Smith 14. The Universal Declaration of Human Rights as Constitutional Model by Zachary Elkins, Tom Ginsberg and James Melton 15. Rewrite for Rights: Creating a Modern Constitution by Judith R. Blau Appendix 1. Bill of Rights and Subsequent Amendments Appendix 2. Universal Declaration of Human Rights