Cass Sunstein

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”.

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