This excerpt is from a piece that originally ran on June 9, 2021.
A Real Framework for Rights and Dignity
By Nan Aron & Daniel Goldberg. Nan Aron is the founder and president of Alliance for Justice (AFJ), a progressive advocacy organization working on justice issues. Daniel Goldberg is Legal Director of AFJ.
Ultraconservatives have long weaponized our courts and relied on strained, bad faith interpretations of our Constitution to prevent everyday Americans, through their elected officials, from collectively addressing their needs. From weakening the Reconstruction Amendments and gutting civil rights laws to leveling Lochner-era attacks on protections for workers and consumers, these forces have too often twisted our Constitution—designed to promote the “general welfare”—to weaken our democracy, limit civil rights, and impede social and economic justice.
These attacks have only increased in recent decades. Fifty years ago, Lewis Powell infamously argued that the “American economic system is under broad attack” and urged the business community to create a legal center and other entities that would promote the general interests of businesses in our nation’s courts. Since then, Republicans have confirmed hundreds of ultraconservative judges who, on the bench, have been laser-focused on warping the Constitution to protect the economic interests of the wealthy and powerful at the expense of everyone else. They have attacked vital social programs and protections for workers, consumers, and the environment. They have degraded protections for persons of color, women, LGBTQ Americans, immigrants, persons with disabilities, and Native Americans. And, in nearly 20 years’ worth of decisions, from Bush v. Gore to Shelby County v. Holder, Republican-appointed judges have thrust the Court into the middle of electoral politics in order to tilt the political playing field toward the Republican Party, despite Republicans’ lack of popular electoral support.
In fact, conservatives know they cannot achieve their unpopular policy objectives through the democratic process—one need only look at Republican failure to repeal the Affordable Care Act despite fully controlling Congress and the White House. Instead, they have filled the courts with ideologues who will simply use the courts to achieve Republican policy goals. An illustrative example is Judge Andrew Oldham, a former counsel to Texas Governor Greg Abbott who now sits on the Fifth Circuit and who as a lawyer argued that the entire Department of Labor was unconstitutional. He filed dozens of lawsuits with the goal, in his own words, of making labor, consumer, and environmental regulations “completely inoperable”—and now he is one of hundreds of ideological judges who, from the bench, continue working to do just that.
These attacks on our rights and freedoms show why the Democracy constitution is so critical, and so welcome. The preamble to the United States Constitution makes clear that we must have a government that can promote the “general welfare,” and the Democracy constitution makes clear that rather than a document that is used as a bludgeon to protect special interests and side with the powerful over the powerless, we can—and indeed hopefully will one day—have the constitution our Founders envisioned: a framework for government that protects human rights and dignity for all.
Conservatives’ twisted interpretation of the existing Constitution intentionally paralyzes government and hamstrings worker and consumer protections so that powerful corporate interests are left unchecked. Conversely, the Democracy constitution rightly recognizes and lives up to the ideal of a government that works for all people. It guarantees fair treatment and a decent standard of living for workers, a right to health care for all, and a right to breathe clean air and drink clean water. These basic yet incredibly important guarantees are cornerstones of liberty and represent the ideals of America. They are among the rights and protections that people across the country have fought for over the course of centuries. It is long past time to enshrine them into a lasting charter for government that is truly for the people, and not corporate interests.
Justice William Brennan said that “the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.” The Democracy constitution has started an important conversation and debate about what kind of constitution our nation can aspire to have, and it should be commended.