Spencer for President - Position Paper Number 14

14. Add Equal Rights Amendment covering all reasonable definitions of “rights” to the U.S. Constitution

Thirty-five years ago, an Equal Rights Amendment that spoke only to gender inequality, was approved by Congress and forwarded to the states for ratification. It missed ratification by 3 to 8 states, depending on how you view the 5 rescissions that occurred before the deadline of 1979 or 1982 (depending on how you view the relevant acts of Congress and the decisions of the courts). In some ways we are “beyond all that”, but the political times and temperaments being what they sometimes are, let us try to establish broad and liberal terms that guarantee the same rights for all of us.

It may not be the end-all and be-all of the evolution of democracy, but we should formalize the level of development that existed prior to the Bush’ regime. What is – or should be – that “level of development”? Here’s my take:

1. Constitutional rights, unabridgeable and without reservation, to all U.S. citizens (effectively, this would rescind the elements of the Patriot Act, the FISA laws, and the Military Commissions Act that allow search and seizure beyond the criminal standards that we had developed previous to the events of 9/11/01);


2. Civil and voting rights, as described in Amendments XIV, XV, XIX, XXIV, and XXVI, without reservation to all U.S. citizens;


3. Legal rights, as defined in the U.N.’s Declaration of Human Rights, plus the Geneva Conventions, for any person under any form of U.S. jurisdiction or control (including the U.S. Constitution’s requirements for habeas corpus, due process, and protections against ‘cruel or unusual punishment’;


4. An exclusion that states specifically that, in the absence of germane criminal standards, seizure of any individual is prohibited at penalty of law;


5. An additional exclusion that states that, in the absence of germane criminal standards, seizure of any individual’s property has a specified duration (e.g., 30 days). By the end of this deadline, a court with appropriate jurisdiction must review the situation and can decide to permit further sequestration only on the basis of standard due process and rules of evidence.

Those who agree with the points raised above – #s 1 and 2 in particular – may also require a list of categories to which these rules would apply, such as gender, “race” or ethnic identity, sexual orientation, nationality, creed, and, perhaps, affiliations. I do not oppose such a list, but I suggest that simply stating the rule without delineation is the widest approach. Likely there will arise some new category in the future, and inclusion by lack of exclusion may reduce the amount of struggle required to add such a category.

As to the “exclusions” in points # 4 and 5, I include these, because - lacking them - we all have the equal right of being arrested or expropriated for some vague ‘cause’, such as vagrancy or suspicion of …. Judicial review over the last 40 years has tended to reduce such uses, but there is nothing permanent about judicial review. It is merely precedent and has more effect in some courts than in others.

Many commentators have said it better than I can: it is the idea and the ideals of the structure of the U.S. government that justified any international leadership role that we may have entertained in the past. It is our current practices, plus the degradation of those ideals, that have severely harmed our reputation and standing.
Of more direct importance to us is that such degradation imperils our ability to influence the critical decisions that affect us individually and collectively. If an official – elected or appointed – can neglect the rules – habeas corpus, due process, or rules of evidence – that official can prevent or hinder us from speaking effectively, from voting, from affiliating with like-minded individuals, from educating/organizing the uncommitted. Do I need to continue? Is it not obvious what a ‘police state’ can do?

The history of the development of our Constitution is to add bits of enfranchisement at each epoch, after a bitter contest. How about if we just make the leap and say that we are all in this together? I believe that it is a minority position in the citizenry at-large to withhold the benefits of our ideals from this group or that. It is time for our country to embrace our historical tendency: include everyone in the benefits of liberal democracy.

Paul Spencer