marxism and law, Part II
schaffer at SPAMoptonline.net
Wed Feb 28 14:16:47 MST 2001
[ Part II ]
"The Constitution's Amendment Provision "
The Constitution's provision for Amendment (Article V ) was truly
revolutionary for the time that it was enacted and even for today. It
essentially recognized for the first time in history that fundamental
social and political change is inevitable ,and that these changes must
be represented in fundamental law. The Amendment provision has even
been termed revolutionary. As Herbert Aptheker says in _The Early
Years of the Republic_:
(quote) The right of revolution is insisited upon in the writings of
Madison and Jefferson and was stated at this time with particular
clarity by James Wilson, a member of the (Constitutional) Convention,
and later an Associate Justice of the Supreme Court of the United
States: "A revolution principle certainly is, and certainly should be
taught as a principle of the United States, and of every State of the
Union. This revolution principle that the sovereign power residing in
the people, they may change their constitution or govenment whenever
they please, is not a principle of discord, rancor or war. It is a
priniciple of melioration, contentment and peace."... ...These means
to amend the Constitution are to be handled by future generations as
the generation of the (American) Revolution and the Constitution
handled urgent problems before them. Happily, however, and this is one
of the significant results of that Revolution and provisions of that
Constitution, legality is to be on the side of those seeking such
change, be it as fundamental as it may, so long as it reflects the
will of the majority of the people. That is , so long as it does not
violate the basic precept of the Republic, namely, popular
sovereignty. (end quote)
This provision, used justly, makes the Constitution truly alive and
revolution potentially legal. The Amendment provision is a
time-tested, eminently lawful , patriotic American method which must
be seriously considered and used as a good form for peaceful
transition from reforms through democratic revolution. This is an
important consideration when radicals, especially communists, have
been falsely stereotyped as advocating violent and illegal overthrow
of the government. An effort to make radical change through
constitutional amendment is a fundamentally LEGAL radical act.
This provision can be used to make law not a fixed and eternal
"truth", but an evolving developing system reflecting social
development and collective mass action. Some of the most advanced
aspects of U.S. law came through this "revolutionary" process, of
course: the Bill of Rights, the 13th, 14th 15th and 19th Amendments ,
et al. All progressives have an interest in popularizing a
dialectical/historical understanding of law and its specific
manifestation in that form in the Amendment provision.
"Isn't the right to a job already part of the law"
When I first undertook to investigate the right to a job, I thought it
was well-settled in U.S. law that there was none; and even more that
it is well settled that monopoly corporations have a right to
guarantee that a significant number of people will not have a job or
However, the former editor of _The Guild Practitioner_ ,Attorney Ann
Fagan Ginger explained to me that the way to succeed in the fight to
get full employment is to argue that full employment is not a new
idea, that it is as old as the Constitution itself or at least as the
concepts of the New Deal (as discussed above) which people desparately
believed were establishing certain economic minimums forever. In other
words, there is customary and legal precedent for a fundamental right
to earn a living. Readers of _The Guild Practitioner_ know that Ginger
is also legendary for founding a new approach to progressive law which
is to use international law especially the United Nations Charter,
conventions/treaties and convenants in U.S. domestic courts ( see
citations on right to a living above). In "Toward An Economic Bill of
Rights Some Legal Bases", ( _The Guild Practitioner_ Vol. 41, number
1, Winter 1984) and "The Right to Earn a Living" ( _The Guild
Practitioner_ vol.44, numbe! r 2 , Spring 1987) Sam Rosenwein makes
this argument based on extensive research into the precedential
authority of U.S. jurisprudence and history , as well as international
The current proposal for Constitutional Amendment must not be
considered in contradiction to the approach of Ginger and
Rosenwein. Their method gathers ammunition for progressive lawyers who
are fighting continuing battles on behalf of economic victims right
now. In those individual cases, nothing should be spared in trying to
persuade individual judges that precedent and reason demand protection
of a right to a living. Furthermore, as Ginger has often explained,
claiming that a right exists in morality and justice, and has existed
for a long time in history as an idea is an important method of
political education and persuasion of the population. Arguing that
racial or gender equality or trade union rights or the right to earn a
living are the "true" American tradition and spirit is important in
many ways. It assures some that they are not doing something crazy or
way out. It counters charges that we are importing a foreign
ideology. It connects us with the majority in histor! y as well as
the present. It gives confidence that we can win.
There is a limitation to this approach, because in fact, racism/Jim
Crow was the law of the land once, as were and are anti-union and
anti-job right statutes and common law. Otherwise, why have we been
struggling so hard all of these decades ?
In considering the whole body and system of U.S. law and the reality
of the economic system which the law reflects, there is little
question that the vast majority of courts do not recognize the right
to earn a living ,and the courts do recognize a private property right
to deny earning a living. These legal principles are cornerstones of
the capitalist system. To deny that these principles are part of our
system of legal rules would be almost to deny that the U.S. has a
capitalist economic system.
But so what ! In different circumstances we must emphasize different
aspects of, even contradictory aspects of our legal ideology. As I say
above, where arguing an individual case or even bolstering mass
confidence in the morality and justness of the fight for a right to a
job, it is important to emphasize those glimmerings of enlightened
thinking that have appeared once in a while among judges and
legislators in response to mass struggles. It is sometimes important
to argue that the progressive provisions of the Constitution
(including the Preamble) and Declaration of Independence logically
imply although do not say directly and explicitly that there must be
rights to earn a living and decent income (The draft amendment offered
below specifically refers and relies on the Constitutional purposes
,stated in the Preamble , to establish justice, promote the general
Welfare and secure the Blessings of Liberty). It is important to argue
that the well settled international law in UN! statutes is that there
is such a right, and that these laws are part of U.S.supreme law as
Yet in considering what must be done to bring mass popular support for
statutory and constitutonal change, we must emphasize that the
overwhelming majority of U.S. judges interpret the law as denying
these rights, notwithstanding that this interpretation is contrary to
the spirit of America's best traditions as Ginger and Rosenwein argue.
In a word, we must not only reinterpret the law and the Constitution,
but change it.
_A Draft Amendment_
My draft Constitutional Amendment is as follows:
Section 1. Every adult American able and willing to earn a living
through paid work has the right to and shall have a free choice among
opportunities for useful, productive and fulfilling paid employment at
decent real wages or for self-employment.
Section 2. Every adult American unable to work for pay or find
employment pursuant to Section 1 has the right to and shall be
provided by the Federal and State governments an adequate standard of
living that rises with increases in the wealth and productivity of
Section 3. Pursuant to the obligation to establish Justice, promote
the general Welfare and secure the Blessings of Liberty, the Federal
and State governments shall serve as the employers of last resort in
insuring fulfillment of Section 1.
Section 4. In a case where Section 1 is in conflict with the Amendment
V provision or Amendment XIV provision reading "Nor shall private
property be taken for public use without just compensation", Section 1
of Amendment XVIII shall prevail
Section 5. In a case where Section 1 is in conflict with the Amendment
V provision or Amendment XIV provision that no person shall be
deprived of property, without due process of law, Section 1 of
Amendment XXVIII shall prevail.
Section 6 The common law doctrine of employment-at-will is hereby
abolished. All employment discharge shall be with just cause.
Section 7. The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.
Time does not permit an extensive discussion of a number of issues and
questions raised by this draft. I will do an abbrievated annotation of
the proposed amendment.
The language in Sections 1 and 2 is based on The Income and Jobs
Action Act, a bill introduced by Congressmembers John Conyers of
Michigan and Charles Hayes of Illinois in the mid 1980's. Regarding
that wording , Bertram Gross said in the second part of his two part
article in _The Nation_ on the Hayes-Conyers Bill ( "Making an Issue
of Full Employment January 24, 1987) said:
"...First, it replaces the old "right to a job" with the "right to
earn a living", as suggested by Ann Fagan Ginger of the Meiklejohn
Civil Liberties Institute. Income rights for those unable to work for
pay or find a suitable job are defined in terms of "an adequate
standard of living that rises with increases in the wealth and
productivity of the society." In uniting job rights and income rights,
it strengthens each concept."
I have merely proposed constitutionalizing the "Fundamental Rights"
section of the Hayes-Conyers bill ( The Quality of Life Action Act or
The Income and Jobs Action Act).
This draft Constitutional Amendment for a Right to Earn a Living ,
pursuant to its Section 7 envisions comprehensive implementation by
Congressional Acts , such as the bills of Hayes and Conyers (HR 1398
of 1986 and HR 2870 of 1987 the Economic Bill of Rights Act" );or
former Congressperson Dellums' A Living Wage, Jobs For All Act of 1997
(HR 1050); or the Jobs Bill of Congressperson Martinez of Texas. The
Living Wage Ordinances now sweeping the country could even play a role
in fulfilling the broad Constitutional mandate.
This draft might be expanded to a full 2nd Constitutional Bill of
Rights, an Economic Bill of Rights, as President Roosevelt anticipated
in his State of the Union Messages in 1941 and 1944.
Employment law and Guild Attorney Larry Daves suggested the inclusion
of the provision abolishing the employment-at-will doctrine.
This is truly a draft and I welcome comments , criticisms and
suggestions from readers of this article.
The jobs movement's legal aims must be well chosen. The substance of
the movement has been shaped by U.S. social and economic reality - the
history of struggle and the development of the relations and forces of
production. We are ripe for a right to a job. But the legal form must
be as profound as the substance. In the U.S. rights are made legally
most binding not only by statute, but by making them part of the
Constitution. When the People rise the next time, let the People's
lawyers be prepared with our writs and bills.
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