Although Progressive ideas are gaining popularity, will the Supreme Court eventually sound their death knell? I participate in a monthly conversation salon at a local library. At the end of the last meeting we decided that the topic for the next discussion would be what we would like the 2016 political candidates to talk about as opposed to what they are likely to say. It occurred to me that that would be a worthy theme for a Daily Kos Group. I e-mailed kos who has, of course, not responded.
What follows would be what my first contribution to the group would be if there were such a D.K. Group. Continue reading if you would like to know how Progressive Populism relates to the U.S. Constitution.
I recently read an article by Robert Borosage about the growing progressive populist movement (http://ourfuture.org/...). I believe the goals/values of this movement include preserving the environment, expanding social security, affordable education for all, employment security, addressing inequity, etc. The article was quite long but I did not see a word about the question of the constitutionality of the suggested reforms. It is easy to take for granted the idea that anything that promotes/supports the Common Good (i.e., the general welfare) must be constitutional since the general welfare is mentioned in the Preamble.
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
There is, however, a legitimate question as to whether or not this Preamble to the U.S. Constitution gives the Federal Government the legal authority and /or duty to protect and/or promote the Common Good (general welfare) in regard to preserving educational quality, environmental quality (EPA), work safety (OSHA), full employment (New Deal-type legislation), social safety net programs (entitlements to the poor), caring for the elderly and those with disabilities (Social Security, Medicare).
The web site http://www.conlaw.org/... describes Jacobson v. Massachusetts 197 U.S. 11 (1904) as
The only case in which the Supreme Court has directly addressed a claim based on the Preamble. In this case the court examined the Constitutional rights of Jacobson, and rejected his claim to a personal right, derived from then Preamble, to the "blessings of liberty". In rejecting Jacobson’s claim, the Court wrote that "the Preamble indicates the general purpose for which the people ordained and established the Constitution" and went on to point out that "[the Preamble] has never been regarded as the source of any substantive power conferred on the Government.
The document continues
It cannot exert any power to secure the declared objects of the Constitution unless, apart from the Preamble, such power be found in, or can properly be implied from, some express delegation in the instrument."
We can disagree as to whether that Court decision/reasoning was correct or not. The reality is that the Supreme Court has the power to uphold the idea that the Preamble "has never been regarded as the source of any substantive power conferred on the Government". I suggest that a government without the legal power to make laws regulating education, the environment, working conditions, etc. may not have the legal authority, let alone the legal duty to make such laws. So, if at some future time, the constitutionality of the EPA, OSHA, Public Assistance, Food Stamps, Social Security, and /or Medicare is challenged in the Supreme Court, there is no guarantee that any of these programs would be found constitutional by the Court. This would be a major blow to the Progressive Populist agenda.
Let's face it. If and when Ultra-Conservatives gain enough power to shrink the Federal Government by eliminating the Federal Government's support of the Common Good (except for those aspects that benefit the rich), they will do so. They will do almost anything to financially benefit the wealthy and Big Business.
That being the case, the natural question that occurs to me is "why not amend the Constitution in such a way as to give the Executive and Legislative Branches of the Federal government the power, the authority, and the duty to prioritize the Common Good* over the profit making aspirations and interests of businesses"? I feel confident that someone smarter than me could create a constitutional amendment with that intent and meaning without violating established Constitutional principles nor contradicting existing Constitutional provisions.
There is a question as to whether or not the the Preamble does/should bestow the necessary duty and authority on government to promote/maintain the Common Good. Adding the suggested amendment to the U.S. Constitution would make this question moot.
Such a constitutional amendment would have the effects of (1) giving the least advantaged in our society an actual aid to lift them out of poverty; (2) giving future generations the possibility of the continuing existence of a quality environment, or what's left of it; and (3) increasing the opportunities of workers, renters and students to actually experience their inalienable rights to life, liberty and the pursuit of happiness.
These three effects of such a Constitutional Amendment are the opposite of what I think of as abusive** and inhumane. Based on Borosage's article, it seems that progressive populists desire humane, non-abusive political leadership. I would like to hear the 2016 Candidates say whether or not they would support a constitutional amendment that would obligate the government to prioritize the Common Good over the profit making aspirations and interests of businesses. A simple unambiguous "yes" or "no", in my opinion, would help distinguish the humane from the abusers.
Common is defined by Webster's as "Belonging equally to, or shared by, every one or all". The Common Good encompasses that which is owned and/or administered by some level of civil government and which benefits citizens in general but which most individual citizens could not afford. Such things as libraries, public health protection, environmental preservation, public education, public parks, public playgrounds, public green spaces, caring for the elderly and disabled, and job security are all aspects of the Common Good.
*Abusive refers to mistreatment, injury, deception, insult, coarse language, encroaching on basic rights.