We the People

The constitutional law professor and former Obama White House “regulatory czar” Cass Sunstein makes an important point in a recent article about the relationship between our constitutional rights and social mores. In it he writes

(w)e often think that our rights are established by the Constitution and by the Supreme Court, interpreting that document. True, the Constitution is fundamental, but some of our most important rights, as we understand and live them, are a product of changing social values, which affect private institutions, public officials and sometimes even constitutional law.

He cites the recent decision of the US Defence Department to allow women to fight on the battlefield and the Boy Scouts’ reconsidering of its long-time national ban on gay members as examples of how shifts in cultural attitudes towards some issues relax restrictions and grant rights to some members of society who were previously excluded.

It was back in 1981 on a vote of 6-3 that the US Supreme Court decided to uphold the government’s right to refuse to sign up women for the draft. Similarly, as early as 2000, the high court in a split 5-4 decision sided with the Boy Scouts whose moral views prevented them from admitting gays into their organisation. These two cases involving sexual discrimination on the one hand and freedom of association on the other were some of the most significant decisions in the court’s history. And yet they have recently been overturned not by judicial review but by the organisations themselves. As Sunstein pointed out

(i)n 1981 many people would have been astonished to hear that in a little more than three decades, and without the slightest pressure from the Supreme Court, the Defense Department would allow women to serve in combat. Yet on Jan. 24 of this year, the Pentagon announced, with the full support of the Joint Chiefs of Staff, that the military is lifting its longstanding prohibition on women in combat.

As recently as 2000, many people would have found it unimaginable that in a little more than a decade, the Boy Scouts would seriously consider eliminating its ban against the admission of openly gay members.

…Powerful though they are, the Defense Department and the Boy Scouts of America have no authority to overrule the Supreme Court. But it is an enduring feature of our constitutional system that as they learn over time, public and private institutions are free to endorse understandings of rights that go beyond anything announced by the highest court in the land.

In the Philippines, the recent passage of the RH bill serves to illustrate the very same point that Sunstein makes. The RH bill had been languishing in congress for over a decade. Its passage late last year was credited to the administration’s willingness to stand up to religious clerics. But the administration had actually dragged its feet before endorsing the bill to congress, just as it is doing with the freedom of information bill.

It was due to the pressure from reproductive rights advocates and recent polling that indicated a large majority of Catholics supported it which gave Malacañang the courage to finally stick its neck out in favour of the bill. It was society that led, and the leaders that followed. With regard to the case of Carlos Celdran, an RH bill advocate, who was recently found guilty by a municipal court for upsetting the “religious feelings” of the clergy, the law on which the decision was based seems absurd to most viewers today. It is a vestige of the Spanish inquisition which took place many centuries ago and remains codified in the statutes of its former colony.

With respect to the cyber crime law that threatened to curtail the rights of many online bloggers to freely express themselves, until the Supreme Court issued an injunction, the divide that separates legislators who crafted the bill and the president who signed it on the one hand, and the younger generation for whom tweeting and liking on social media are as natural as breathing on the other, is really quite evident.

Back to the US, and the recently concluded election over there where Rep Paul Ryan in his initial remarks after being named the GOP vice presidential nominee electrified the party’s base by saying that, “our rights come from nature and God, not from government”. He was echoing the pronouncement made by Thomas Jefferson in America’s declaration of independence, in which he wrote that such freedoms were “self-evident”. But it wasn’t god or nature that gave them those rights, according to Sunstein. It was “we the people”.

Doy Santos aka The Cusp

Doy Santos is an international development consultant who shuttles between Australia and the Philippines. He maintains a blog called The Cusp: A discussion of new thinking, new schools of thought and fresh ideas on public policy (www.thecusponline.org) and tweets as @thecusponline. He holds a Master in Development Economics from the University of the Philippines and an MS in Public Policy from Carnegie Mellon University.

  • Jag

    American legal system derived its roots from the British system of common law. History, case law or case precedents allow for evolutionary changes…..

    No where in the U.S. Constitution is it listed for Congress the power to create fiat currency or to establish a central monetary authority to do the same.

    Obama did not save the world from economic collapse. Hank Paulsen, Ben Bernanke and the U.S. Congress with Bush saved the world from a financial collapse that would have led to the Great Depression II. However it was the changing policy framework drawn up by the Reagan/Thatcher combo that pushed for the primacy of all markets most particularly financial markets and started dismantling the regulatory framework in place. After the fall of the Communist led bloc led by the Soviet Union the U.S. led Bretton Woods twins did the rest.

    It is ironic that the power to create money out of thin air that has ballooned the balance sheet of the Federal Reserve by $3 trillion and with the other major Central Banks of the world creating an artificial glut of liquidity that has kept the world from another depression.

    Our own BSP in its small way has also done the same massive money printing due to the massive dollar purchases to keep the dollar from crashing in our local currency markets.
    “The people made the Constitution, and the people can unmake it.”
    It is the creature of their will, and lives only by their will. Chief Justice John Marshall, 1821

  • Ernesto J. Garcia

    Ironic that we should listen to Cass Sunstein diss the U.S. Constitution. As the “Regulatory Czar” Obama created, take note that these czars were considered by many to be unconstututional in the first place. Their appointments bypassed congress and their oversight, created duplication in function, etc., and in general these czars just didn’t work. Just look at the “job czar” and the “energy czar”. Why do you think unemployment and gasoline numbers are going through the roof? Or why economic growth is the slowest in three and a half years of Obama? Obama’s agenda is really to gut the Constitution. Already there’s talk of repealing the 22nd amendment, which prohibits a third term for president.. And pretty soon the Democrats will start the ball rolling on the Second amendment: “The right of the people to keep and bear arms shall not be infringed”. Watch them go around that by the series of Executive Orders Obama will use to further gun control. Repeal if we must, but let’s not go around them. Let’s stick to the fundamental law.

    • Poppycock. When Obama took over the entire planet was on the brink of economic collapse from Bush incompetence. The authoritative actions taken by the American leadership under Obama saved countless corporations and jobs from demise. If the pace of growth is slow it is because the Bush econmic collapse ripped trillions from corporate and homeowner treasuries, and it takes time to build back. Obama has no plan to gut the Constitution. He interprets the Constitution as a person with a liberal ideology would, intended to protect and serve the people, broadly. The American public is with him or right wing extremists like Ryan would be in the chairs of authority under a wobbly, unreliable, gaffe-prone flipflopper president . . . what was his name, that candidate of no known capability . . .

      History will record President Obama as one of the greatest leaders of all time. He is no Joeseph Stalin, as you paint him. Let’s stick to rationality.

      • UPnnGrd

        Now the rumor of 2018 is that they will put up an Obama-memorial right alongside MLK’s, that is what USA should expect.

        But the 2012 rumor is that the NObel committee seethes that their giving Barack Obama the Medal didn’t get from Barack the war crimes indictment against Cheney.

        • No, no. President Obama’s memorial should be right next to Abraham Lincoln’s, a fitting tribute to his stance on freedom for all. The Nobel committee is too distinguished to seethe, I think. And Cheney is not worth any emotions at all.

          • UPnnGrd

            and tongue-in-cheek, JoeAmerica mouths the words … Obama’s memorial should be right next to Abraham Lincoln. You are, right?? Tongue-in-cheek?

          • Absolutely not tongue in cheek. The American Civil War was the bloodiest war America fought, and Abe Lincoln had to deal with the weight of that war for the simple principle that all in America, specifically black slaves, should be free. If you could bring Abe back and introduce him to Barak Obama, Lincoln would probably break into tears.knowing that the sacrifices he ordered were worth it. And Obama would kneel at Mr. Lincoln’s feet in gratitude.

            Lincoln would be outrageously proud to have Obama’s memorial right beside his. So would most Americans. They grasp the significance, the poignancy, of that statement.

          • Bert

            Spoken too soon like a true Democrat, Joe. Dividing America is not much of a positive accomplishment of an American president by any standard, and equating Obama to Lincoln I think that UP n has a point in thinking it was a tongue-in-cheek statement.

            Nothing is wrong in being an optimist, Joe, but me, I’d rather wait ’til the end of Obama’s term to see if he really is a ‘Lincoln’, :).

          • UPnnGrd

            The poignancy…. oh, I suspect you hear hear the violins and cellos when you think of Obama face-to-face with Abraham Lincoln.. Lyrical, truly lyrical. You’re just waxing lyrical, JoeAm.

            I’m teasing, JoeAm… just teasing. tongue-in-cheek.

    • UPnnGrd

      Hah Hah Hah… where did you hear this “Obama-for-one-More-Term!!!” chizz-mizz… maybe that was about Pilipinas Constitution, isn’t that more likely?

  • UPnnGrd

    And speaking of American-style democracy, I wonder when the time comes when Pilipinas implements affirmative action. Not equal opportunity, but affirmative action.

    Maybe Pilipinas can pass laws like Brazil has passed laws so that affirmative action programs for Pilipinas Aetas and Hiligaynon and other tribesmen can be put in place just as Brazil is now doing for its marginalized citizens.

  • UPnnGrd

    I wonder how much of Luzon-type democracy gets retained should Presidfent Noynoy hand chunks of Mindanao to Murad/Jaffar and their troops and followers.

  • Your mentioning Ryan’s remarks leads me to believe that conservative US Republicans may have been “made in the Philippines”.