Human Rights

Divining Democracy's Divine Dialect

by Wilson Adam Schooley

Amidst this painfully partisan milieu, it’s not necessary to have a partisan perspective to feel concerned about core principles. Indeed, it is likely the least partisan among us who find the most cause for concern, as worried pragmatists see objective reality apparently slipping beneath the surface of our turbulent political tides. 

In this issue of Human Rights magazine, Professor Daniel P. Tokaji writes that our unsettling political dysfunction is leading to loss of confidence not just in Democrats or Republicans, but in democracy itself. Fueled by historic American pathogens of economic inequality and partisan polarization, the essential design of democracy—to give everyone equal consideration—is at risk: Voting is “a fundamental political right, because [it is] preservative of all rights.” Professor Tokaji performs an essential excavation of our right to vote, as it has evolved, what it means, what denial of it means, and the invidious forms that denial takes.

The 2016 election reflected voter exasperation with Washington politics. It was the prevailing voters’ perhaps pyrrhic victory over the status quo. Was it won, though, at cost to our constitutional principles of government? What are these principles? And does the answer, nowadays, depend on who you ask? 

One of the White House website pages that survived the 2016 election is the “We the People” page, which invites citizens to petition the government to address issues important to them. But, this issue of Human Rights asks: Who really are “we the people”? 

Professor Lisa A. Crooms-Robinson shows us how “we” in America have been so clearly and brutally cleaved along racial lines, leaving white folks on the participatory table and people of color cast to the floor as the “they” detritus. “Throughout the narrative of both ‘we’ and ‘they,’ whiteness functions as the norm around which ‘we’ is constructed. . . . We the people continue to be those among us who can lay claim to the justice . . . and liberty the Constitution was intended to establish.”

Ciara Torres-Spelliscy’s article explores further who “we the people” includes, noting that by Supreme Court edict it once expressly did not include black Americans but now does include corporations. “If the logical flaw in Dred Scott was mistaking a person . . . for a piece of property, the blunder in Citizens United was mistaking a piece of property . . . for a person.”

Who are the “we” when so many disparate voices seem to be both raised and at odds. Jason Q. Purnell observes that we “instinctively divide humanity into two parts, ‘we’ and ‘they.’” But a distinctive human characteristic is our ability to cooperate through shared stories. Unfortunately, this cooperation has often been used to oppress and exploit, in opposition of our core principles.

It feels today as though our government may never be held to account for contravening core principles because among its most visible achievements is deepening the we/they divide by brewing a concoction of partisanship, anger at “the other,” and distrust of institutions into a national suspicion that there is no unbiased reality. 

Almost every politician has strayed from the truth. But never have we utterly severed ties with it, let go of even the objective measure of what it is, leaving us adrift in ethical deep space—a place beyond our constitutional atmosphere in which there are only rival claims and seemingly no objective truth. 

So, as we drift toward that deep space, it is worth asking again: What are our core principles and values? 

Do they include due process, free speech, freedom of the press, equal protection, free exercise of but not establishment of religion, fair trials, separation of powers, the right to vote? Recent statements and actions in defiance of protections for immigrants, protestors, the press, Muslims, the accused, the judiciary, and voters seem to challenge those very core principles. 

Do these principles also include civility, honesty, empathy, humility, magnanimity, generosity, compassion, courtesy, and kindness? Even the most reviled and least successful of modern politicians, whatever their often egregious failings, have modeled most of these qualities at least in public. If, instead, they disdained or disregarded them, and this disregard were so commonplace it started to become unremarkable, an accepted part of our conception of political conduct. And, if so, then what?

There is an argument to be made that dispensing with political pretense is more authentic and so honorable. But our national conscience is inherently aspirational. Our national ethos was forged on the principle that we aspire to what Abraham Lincoln called “the better angels of our nature.” Our Constitution and its amendments themselves rise from a foundational premise that we can overcome our worst impulses, precisely because we also have qualities of humility, honesty, altruism, and kindness, along with the intelligence to learn and evolve from our bad behavior. If we as a nation jettison adherence to cultural norms of decorum and decency, we inevitably lose sight of our ideological horizon and become like the dinosaurs wallowing in tar pits, doomed to extinction. 

Christopher A. Callaway asks: What do we as citizens owe to our government? Democracy requires not just obeying the law; it requires that people actively participate in the political process. Most fundamentally, we participate by voting. But does democracy require educating yourself to cast an informed vote? Professor Callaway suggests a better way to think about citizenship is, in fact, in terms of civic virtue rather than civic obligation. Virtue is about going beyond the necessary minimum. Doing so includes adhering to the cardinal virtues: justice, wisdom, courage, temperance, to which we might add kindness, compassion, and tolerance. 

So, we at Human Rights thought it time to revisit some of our core principles, as most notably embodied in the Bill of Rights and the later rights amendments. 

Original Ten Amendments
THE BILL OF RIGHTS

Passed by Congress September 25, 1789. Ratified December 15, 1791.

AMENDMENT I
Freedoms, Petitions, Assembly

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

AMENDMENT II
Right to Bear Arms

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT III
Quartering of Soldiers

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

AMENDMENT IV
Search and Arrest

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

AMENDMENT V
Rights in Criminal Cases

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

AMENDMENT VI
Right to a Fair Trial

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

AMENDMENT VII
Rights in Civil Cases

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

AMENDMENT VIII
Bail, Fines, Punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT IX
Rights Retained by the People

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X
States’ Rights

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Later Amendments

AMENDMENT 11
Lawsuits Against States

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
February 7, 1795.


AMENDMENT 13
Abolition of Slavery

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.
December 6, 1865.

AMENDMENT 14
Civil Rights

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
July 9, 1868.

AMENDMENT 15
Black Suffrage

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
February 3, 1870.

AMENDMENT 19
Women’s Suffrage

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any States on account of sex.

Congress shall have power to enforce this article by appropriate legislation.
August 18, 1920.

These principles are not just prescriptive and proscriptive, but curative. Dr. Martin Luther King Jr.’s dream to transform “the jangling discords of our nation into a beautiful symphony of brotherhood” was, he said, “a dream deeply rooted in the American dream.” Specifically, in our core principles, in our Declaration of Independence, and Constitution

I still have a dream. It is a dream deeply rooted in the American dream. I have a dream that one day this nation will rise up, live out the true meaning of its creed: We hold these truths to be self-evident, that all men are created equal. . . . When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every America was to fall heir. This note was a promise that all men . . . would be guaranteed the unalienable rights of life, liberty and the pursuit of happiness.

In the centuries before that day on the Washington Mall, America’s laws and culture defied and defiled these core constitutional principles. Segregation, discrimination, and disenfranchisement—legally mandated or tolerated—oppressed our people and made a mockery of constitutional promises. Multigenerational perpetuation of institutional injustice corrupted not only our discourse, but our very system of justice, undermining principles of free association, free speech, equal protection, voting rights, fair trial. 

Alexander Hamilton feared we could end up with leaders who were demagogues and had no values other than their own preservation and power. This was the impetus for the Electoral College, to be curative if voters responded to a demagogue. But since 2000, we’ve had two elections in which the Electoral College was inconsistent with the popular vote. We risk becoming an almost oxymoronic non-majoritarian democracy in which government is not representative of American demographics. An example is the Senate, which—as more Americans move to metropolitan areas—dramatically over-represents underpopulated states. In 30 years, something like 70 percent of Americans will live in 15 states, which means they will have only 30 senators, while 30 percent of Americans will have 70.

But Dr. King “refus[ed] to believe that the bank of justice is bankrupt . . . that there are insufficient funds in the great vaults of opportunity of this nation.” On many of our core principles, most Americans are fundamentally fair and in agreement. They don’t want to hate each other. Increasingly, they know a neighbor who is black or Muslim or gay or speaks Spanish. They don’t want to discriminate. They know America has always been about the opportunity to which Dr. King refers, about benefiting from our differences even as we argue about them, but not in a way that casts one side into Heaven and the other into fire and sulfur. 

Just maybe, we are amidst a pitched battle between the two sides of ourselves described by Professor Jason Q. Purnell. Perhaps we are progressing through a sort of Hegelian dialectic to reconcile a nation founded on equality and justice, on the one hand, with the slaughter of Indians, slavery, Jim Crow, Japanese internment camps, gender inequality, and anti-Irish and Italian sentiments on the other. Can we find our essential commonality? Or shared humanity? Maybe focusing on the essential design of democracy, to give everyone equal consideration—the vote—can take us closer. Can we access “the better angels of our nature” and coalesce around the civil virtues to which Professor Christopher A. Callaway calls us? If we’re going to give the great gift of citizenship to corporations, can we not expect corporations also to live up to the virtues of citizenship extolled by Callaway? 

There is so much more we share than there are ways we differ. As Professor Crooms-Robinson says, we Americans have “another opportunity to merge ‘we’ and ‘they’ while eliminating the role that whiteness and blackness” and, for that matter, all our historic iterations of the “other,” “play in determining who belongs and who does not.” Dr. King said on the Washington Mall over a half century ago: “Now is the time to make real the promises of democracy.” What followed was arguably another dialectical leap toward realizing the promises of democracy: the Civil Rights Act, the Voting Rights Act, and a string of significant civil rights advancements. Two steps forward. 

But, 50 years hence, precipitously, we feel fearfully on the precipice of plunging off the high cliff of our core values and into an abyss that abandons them. A very big step back. So, more than ever, perhaps now we need the perspective that this is paradigmatically democracy’s dialectic at work. We need more than ever to keep our eyes on the prize—to remember Dr. King’s wisdom that the moral arc of the universe is long, but it bends toward justice. 

As a step toward breathing the pure air of democracy into this faith, we break with Human Rights magazine’s tradition and celebrate as the Human Rights Hero this issue not a person or group, but our Constitution itself. Let us focus together on the core principles that gave us life as a nation, find our elemental commonality within them, and work together to shape an American future that unites rather than divides us.


Wilson Adam Schooley is an appellate specialist, reformed trial lawyer, professional actor, and published photographer. He is chair-elect of the ABA Section of Civil Rights and Social Justice and a delegate to the ABA House of Delegates.