It Is Time To Re-Write the Constitution

By Rita Sinorita Fierro, Ph.D. and Karla Cruel, Esq.

I always take two sets of notes,

one set to ace the test

and

one set I call the truth,

and when I find historical contradictions

I used the first set as proof — M.K. Asante Jr.

I heard the poem Two Sets of Notes, about the African American experience in white classrooms, at a conference when I was about 28 years old. It prompted me to recognize an aspect of privilege I had never seen before. I was born and raised in the US, a white girl, in a public school in the predominantly Italian and Jewish North Bronx. I never felt cognitive dissonance in grade school. I never had to take two sets of notes.

As part of the 70s-80s busing programs, there were (only) three Black children in my very predominantly white classroom. I never visited their homes, I never asked why not. They never came to my birthday parties. I didn’t think they had a different experience of our classroom. When we recited the pledge of allegiance, one of the Black students never stood up. I asked her why one day. “It’s against my religion,” she said. I was surprised but didn’t ask any other questions. As a white girl in New York, I was a “good girl” obsessed with being an even better “good girl.” I had pride, but also arrogance in pledging allegiance to the flag: I never questioned that I lived in the best, greatest, fairest, most just country in the world. I stood tall, stiff, and firm to recite the pledge. I didn’t question our superiority. I believed it in every cell of my body.

Unlike me, Karla Cruel, growing up in Philly, was one of those Black students taking two sets of notes.

“In elementary school, many teachers considered me a gifted but very difficult child. My teachers were intentional about us learning about Black excellence outside of the traditional Dr. King and Malcolm X. I grew up on a block where one of my neighbors treated my father, brother, and I differently from the rest of my family because our skin was lighter than a brown paper bag. I grew up being very conscious of my skin color and the injustices I would face for the rest of my life. For these reasons, at 13 years old, I began modifying the pledge of allegiance every time I said it. I said it loud enough for my teachers to hear but none of them tried to correct me. Since age 13, whenever I recite the pledge, I say: “with liberty and justice for SOME”. — Karla Cruel Esq.

At age 10, my [Rita’s] grade school experience reflected my white privilege: believing I had to stand taller, stiffer, and reciting louder and clearer than anyone else. This eagerness to be best, to prove my value, to prove I’m lovable, the arrogance, that doing anything I could to be the best, requires me to be vigilant, even now. My actual humanity is contingent upon my loving the sticky, messy parts of me. Letting the invented superiority go: of my diction, of my posture, of my enthusiasm, tied to the pretext of the superiority of our country’s glory. That pretense of perfection projected unto our nation is also why I believed our founding documents were above critique — beyond reprieve.

After 25 years of studying sociology, racism, and antiracism across the world, gender studies, African American Studies, working on five continents on issues of inequality and injustice, studying the hidden stories of our told history, I see our rightful place among nations. Each nation I know bears atrocious contradictions among its principles and its practices. We are no different. We, as a nation, a fairly new, adolescent nation, are still growing up, trying to practice what we preach, still just finding our way to maturity.

The nation-state concept, the idea of one people, one creed, one language, one government is a relatively new concept — only 500 years old. Until then, humans had no concept of people with one language being governed by the same system. Often people of many languages, customs, and creeds were governed together. So the United States of America, our people, and our Constitution, the contract we promised to abide by to unite us, is but a baby. The limitations of the Constitution became clear to me when I interviewed Karla Cruel, Esq as part of a podcast series on the Law Enforcement System in May 2020.

Karla Cruel is an activist lawyer who has been saying, for years now:

The only way for our country to do away with poverty and racism, is to write a new Constitution. Re-writing the Constitution is the only way to A More Perfect Union. There is no other way. — Karla Cruel

It’s not a soundbite. It’s a serious proposal. Karla is a lawyer who has studied various bodies of law (contract, criminal, juvenile, family) for decades, thinks systemically, and sees clearly the intrinsic mechanisms that were placed in the Constitution to ensure the longevity of injustice we see today. Luckily, the Constitution also includes mechanisms to change itself, too. The founding fathers knew that this Constitution may not last forever. It was built to have longevity — not perpetuity. 233 years is a good run. We need to start over. No, we need to start from where we are now. We have learned over the past 500 years all the mechanisms by which inequality, inequity, persecution, and injustice can be built into the backbone of our country, repeating and self-generating. I’m not just speaking about the urban BIPOC (Black, Indigenous, and other People of Color) poor, I’m also thinking of the rural white poor, lower-class second-generation immigrants, etc. It’s now time to learn from these experiences to create something new — something that reflects the society we want to be today: with “Liberty and Justice for All.”

We need to start over.

No, actually, we need to move forward from where we are now.

The summer’s civil unrest and the white supremacist attack on the Capitol are signs that we are ready as a nation to engage a vision for tomorrow that is bigger than the vision we held yesterday. Many people, from every political point of view, are disenchanted with our political system and the lack of fair representation. We are questioning our government and its ability to protect, safeguard, and defend the interests of common folk. Many are watching our government play the economic interests of the highest 1% of the USA population — “an income of at least $728,272 a year.” The majority of people in the US feel more and more strained. While some may call themselves Republicans or Proud Boys, and others Democrats or Black Lives Matter — what is shared is a conviction that the government ignores their interests. COVID-19 has exposed inequalities that were already dire. . All racial and ethnic backgrounds are aching: high rates of unemployment, or working jobs they hate, many stuck in debt, struggling to get financially stable, but unable to do so. The social contract we engaged in in 1787 is not serving most Americans. It’s time to engage in a new social contract.

This article is not an opinion piece: It’s a rationale, a vision, and a plan. We lay this out in four phases: 1) Why the constitution is the way it is; 2) How it preserves itself; 3) How we can change it; and 4) What’s possible.

Photo by Aaron Burden on Unsplash

1.Why the U.S. Constitution is the way it is.

For those who have always believed, as I did in grade school, in the Declaration of Independence’s “We hold these truths to be self-evident, that all men are created equal;” in the Constitution’s “We the people;” and in the pledge of allegiance’s “with liberty and justice for all,” it may be hard to see how racism, genocide, and economic oppression were written into our nation’s documents from the very beginning. It may sound preposterous to say that before “We the People” had dried on the parchment of our Constitution, the battle for equality had been already lost. To understand this, let’s travel back in time.

Before the Constitution was written, the Declaration of Independence and the Articles of Confederation were our guiding documents. In the first, we declared autonomy from British rule. In the second, we gave ourselves the name: United States of America. It was established that we were a republic, with a set of rules that guide the relationship among states such as a president, congress, and shared economy.

What need was unmet that the Constitution was designed to fulfill? What was the seed or the intention of our Constitution? Unfortunately, it wasn’t unity — for the Articles of Confederation had established unity already. The need was a stronger, well-funded military — intended to suppress the revolts of the poor and maintain wealth in the hands of a few.

Only 10 years after independence, in 1786, the poor in Massachusetts rose up. In Shay’s rebellion, farmers denounced being financially strangled by taxes and debt. These were ex-soldiers from the revolutionary war who were paid in paper money — having fought to be free from British taxes and rule, just to found themselves strangled by debt under the new Confederation. It was a complex historical scenario, but here’s a brief version. The soldiers were paid in paper notes which was a way to finance the revolutionary war. But suddenly, Massachusetts cut the value of paper notes to a fourth of their value, so the rich who owned silver and gold were cashing in, while the common farmer who bore notes, was cashing out at 1/4 the original value. The farmers rose in revolt. The response of the founding fathers was not to question their own integrity in creating a society with a gash between the rich and the poor and mistreating those very soldiers who had fought and won the war. It was to establish a military to suppress the revolt.

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The rebellion was so big and long, that the existing military wasn’t enough. Shay’s rebellion required the State of Massachusetts to spend much money on expanding its army to quell the masses — requesting support of the military of other states, too. The military was used to maintain the economic and political power of a few over many. This choice — to pay for a stronger military, but not to pay back the debt to the poor is the seed, the foundation of the America we see today where military power, shady politics, and economic oppression walk hand in hand. Military spending in the USA continued to rise in 2020 and is still larger than we tend to think because it includes other budget items, as well.

Because this dance from the beginning was an expensive one, the Constitution was written to ensure that all states would finance a shared military that was strong enough to suppress any other rebellion without burdening the states, individually.

Photo by Miguel Ángel Sanz on Unsplash — The right foot is moving, after the left broke the chain.

2. How it preserves itself

If the seed of the Constitution was to preserve the riches of the few at the expense of many, the seed was strengthened by embedding legal mechanisms to reinforce the seed. All three branches of our government make laws and give deference to the other, in multiple ways, in the use of its power. These are the checks and balances you often hear about; however, the courts are one of the greatest strongholds of our nation particularly because they often get to have the final say. Of several, here we highlight four specific mechanisms that maintain the status quo: a) Legal Precedence, b) Adversarial Process, c) Judicial Efficiency, d) Appeal Processes.

a) Legal Precedence

Legal Precedence establishes that our courts are bound by the old laws when making new ones via court ruling or interpreting, whether or not a new law drafted is constitutional. This rule tends to preserve existing laws. This is quite problematic because by basing current laws on prior laws, laws change slowly, if at all. Strong pivots in our legal system are uncommon for that reason. In the fact, in two examples of the rare times there were major shifts, the courts grounded their arguments in science, rather than law. First, the Brown vs Board of Education outlawed segregation in education, by highlighting Kenneth and Clark’s social science research that showed how segregated schools undermined children’s sense of self. In 2005, the Supreme Court ended the death penalty for minors based on teen brain development studies that shows that the brain isn’t fully formed until much later. Cases like these that favor shifts are extremely rare: legal precedence is designed to maintain the current infrastructure and avoid change. Legal Precedence is not just a matter of law, but also a matter of practice. While legislators can create any law, so long as it does not violate the Federal and/or State constitutions, they too often give deference to what already exists or how the court has already ruled, which it is its own form of “legal precedence.”

b) Adversarial

Our legal system is grounded in an “adversarial” process: Plaintiff v. Defendant, Petition v. Respondent, Democrat v. Republican. Everything is designed such that two parties oppose each other, under the pretext that from the opposition, a middle way will be found. But there is a catch — in the courts, the law already narrows the field of possibility of what can be “actually” argued in court, rather what the opposing parties really want to seek. It presupposes what the parties should want and think such that side A, side B and the “middle” are already well defined before anyone has any opportunity to argue anything towards a new trajectory — in a court of law, that is. Sure, there will be examples of exceptions to this rule, but that is point. It too is as rare as changing rules where Legal Precedence guides.

This catch is not just limited to the courts. While opposite interests were supposed to face each other, seeking the middle, a large segment of the population — the poor, the Native Americans, the enslaved Africans — seen as an extreme, were completely disenfranchised, thus resulting in a so-called political middle being a lot more conservative than the country’s actual middle. In other words, considering the United States’ current class structure, our society is caught between the opposition of the old guard rich and the urban and rural underclass. Presidential elections are based on the opposition between Republicans, who have historically supported the interests of a few rich or the upper class (the top 3% of the US population) and Democrats, who support the middle class and some segments of the working class. There is no presidential representation of the interests of the lower class (the bottom 27% of USA population). Hence the “middle” our presidential politics represent the interests of the upper middle class. From a purely economic perspective, if we had representatives of both the very rich and the very poor in our presidential politics, our presidential politics would represent a poorer “middle:” the lower middle class or the working class.

c) Judicial Efficiency

Our legal system is grounded in judicial efficiency: there are many, intentional hurdles meant to reduce the number of filed court cases that will reach trial. The most common hurdles are financial, educational, documentation, limits of jurisdiction and sovereignty, timing, and restrictions for rights to appeal. All of these restrictions supposedly keep our legal system lean and efficient, to avoid overwhelming the courts with frivolous cases and in theory to encourage citizens to resolve their own matters without outside help. The result of these barriers though, is also that some are barred more than others —based on social status, class, as well as race.

d) Appeal

Limitations in appeals processes are the most restrictive. Each court case can appeal only to the court directly above it and only after the first court has a final judgement. Here are the levels:

a) State — Trial court (appeals go to b)

b) State — Appeals court(s) (appeals go to c)

c) State — Highest court (appeals go to e, if there is a US Constitutional or Federal legal issue raised)

d) Federal — Trial court (violation of federal laws or interstate conflict only) (appeals go to e)

e) Federal — Appeals court violation of federal laws or interstate conflict only)(appeals go to f)

f) Federal — Supreme court (If the Supreme Court choses to hear the case, aka granted certiorari)

Not all appeals can rise to the Supreme Court, since the Supreme Court’s mandate is to uphold the Constitution. Only cases that address fundamental rights protected by the Constitution may rise to the Supreme Court. Additionally, the Supreme Court only hears cases when the lower court, has either: abused its discretion, didn’t follow precedent, or its conclusions are not supported by the constitution. All of this is intense procedurally, but none of this the hardest part. The Supreme Court does not have to review the case, even when it does meet all of the Courts’ criteria. The Court gets to choose which cases it wants to hear and this is often based on whether it wants to uphold the existing structure, or feels the need to change it.

3. How We Can Change It

Before you dismiss changing the Constitution as a lofty, impossible goal, let’s go back to the fact that the founding fathers themselves planned for the Constitution’s longevity — not its perpetuity. That’s why the Constitution has mechanisms for its own revisions — such as Amendments.

With our experience of community engagement [Rita] and organizational development processes, and knowledge of national and international law [Karla], we have come up with a 20-year process that a new Constitution would require. Twenty years is not a long time compared to the 250 years that our current Constitution has been alive. Remember, the Articles of Confederation and Constitution were both top down processes period. Twenty years of consensus-building can establish the foundation for 250 more years of a healthy republic — a more than worthy goal. We also have models to learn from besides just ourselves. Other nations have gone through the process of creating and/or revising their Constitution since we drafted ours. Here’s the process as we see it.

Step 1: Organizing — 2 years

A revision of the Constitution requires large coalition-building and movement-building across all political, gender, class, and ethnic spectrums. We have factored in two years to engage people around the nation in seeing that a revision of the Constitution is not only possible, but also doable, and necessary. Furthermore, these two years would include rallying substantial leadership behind the project and recruiting a Constitution Committee: a diverse team of people who will draft the new Constitution by deliberating across viewpoints. It also includes the creation of a People’s Advisory Group, representatives of the US population, that the Committee will report back to once a draft is completed. During this period, it will also be necessary to create hearings recognizing the sins of our past, similar to South Africa’s Truth and Reconciliation Commission. The acknowledgment of issues raised will be important in the writing process as it will inform the “fundamental rights” valued by our citizenry.

Step 2: Writing — 1 year

The rule of law in society is both a reflection of the system’s values but also the guide by which the citizens in society are organized. The actual writing process need not take long, since the Universal Declaration of Human Rights can be the foundation for the re-writing of the Constitution. Many nations have drafted Constitutions since 1787. We can learn from their failures and wins. The writing process would require the consultation of national and international Constitution specialists. It is important that the writing of this new Constitution be grounded in the values of the citizenry — which will make the transition process easier. When people want to follow the laws or feel that they are benefiting from the laws, they are more inclined to support the implementation process.

Step 3: Ratification — 4 years

The ratification process is one of the most complex, as it would entail ongoing deliberation between the Constitutional Committee, the People’s Advisory Group, and Congress.

Step 4: Transition — 12 years

The transition process is the most complex, hence the lengthier timeframe assigned to it. During this transition time, any new law passed would be passed under the New Constitution. The other laws, that are currently are embedded under the Old Constitution would gradually be transitioned over, with a special attention to not “carry over” any demeaning assumptions that were implicit in our Old Constitution (which was written at a time in which enslavement was legal, women and children were property, and First Nation rights were not recognized). This is similar to what already happens when the Supreme Court declares something unconstitutional after it was been legal in the prior year. For instance, once the Supreme Court declared life without parole for juveniles unconstitutional, decisions had to be made for those already serving those sentences to align prior practices with the new law. Actions also had to be taken to align the future actions of judges and prosecutors to ensure they stopped using the old law.

A specialized committee of jurists would steward this transition by ensuring: adherence to the values of the New Constitution and the protection of the indelible rights of all human beings. There would also have to be checks and balances to monitor the new laws and assess that they actually have the intended effect. The transition of 12 years — covering 3 election cycles — would favor monitoring laws overtime so they transcend specific political leanings.

Buffer: 1 year

In our process, we factored in a buffer year. It’s always wise to assume that things may take longer, or that something may happen in this process, that we have not taken into account. Our buffer year accounts for that.

Total: 20 years

In total, we foresee this process requiring 20 years. The length of the process is a strength, because it would transcend specific political leanings or elections, embodying at least 5 presidential election cycles in its midst. This long-term thinking and long-term investment would make a great difference for supporting consensus-building across groups, classes, and ethnicities, because the mere timing would reveal the critical importance of a larger arc of historical action.

For those who are curious about the theoretical approach underlying the process proposed above, you can see below an image about Two Loops theory: a theoretical approach on how systems change created by the Berkana Institute. The theory is grounded in Berkana’s systems change work over the past few decades. It turns out, systems don’t actually change because we move policy changes or tweak little details here and there. Systems change because as one system declines (the top loop) another system is born (the bottom loop) strengthened by the pioneers and innovators who are brave enough to conceive something new. Gradually, the new network connects and is nourished (creating communities of practice) enough to illuminate the old with the possibilities of the new. When the old is ready to transition into the new, some steward that transition. Here is an article on Two Loops Theory by Margaret Wheatley of Berkana.

4. What’s Possible

One of my organizational development colleagues always says that she can tell what an organization’s struggles with by reading their vision statement. If their vision is equity, they struggle with unequal power, if it’s joy, they’re joyless, if it’s connection to God, they’re riveted by human desire and power struggles. Some see this as organizations not “practicing what they preach” but there’s nothing wrong here. It’s an integral part of the creative process.

When a group comes together and consents to a shared vision, they are also consenting to a shared journey. The journey towards something is the opportunity to deepen the learning in that direction so that it can be shared.

So the organization that strives for equity, will struggle with all the ways it is inequitable, the one that strives for joy will see its joylessness, the one that strives for God will experience the grittiness of its own human urges.

It’s the way the organization embraces that journey that determines its caliber, not the journey itself.

Throughout the last election season, many have highlighted contradictions in our electoral system that hinder equality: barriers in voter administration, gerrymandering, electoral college. These contradictions are highlighted even further in the limited number of people who actually vote, compared to those who could. However, the many articles written on these contradictions, rarely connect how they are rooted in the very seed of our Constitution: the inextricable weaving of political, economic, and military interests in an attempt to have rich continue to protect their own interests while suppressing the poor and middle class and having access to a federal army to do so.

Our Constitution was infused with a slave-labor based economic system. Yet our Declaration of Independence stated: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Such is our vision, such is our journey. The very journey of the United States is a journey not of equality, but towards equality. We mentioned in the section on the legal system how these words were written at a time when, the Indigenous people of the land were being slaughtered, Brown folks were held in bondage and their humanity exploited for economic prosperity, and poor White men and White women really had no voice or value. The bondage of people of color and the creation of whiteness ended up demeaning the white poor as well. Today, as we see the concerns of the first US generation likely to do worse than their parents, we must ask ourselves how the backbone of inequality our nation was founded on has harmed every American, most particularly those of color. Our journey as a collective, as a country, is one of creating equality: bringing integrity between our intentions and our practices.

If this is true, then what is the NEXT stretch of our journey together?

There are those who would fear this proposal. They do not want the other side to have a voice in a new proposed nation. Too many of us have come to believe that engaging those with whom we disagree is equivalent to losing any and all of what we value. Ironically, at the core every group, Indigenous, Black, Immigrant and white, are all screaming the same thing, “Value Me.” So while racism and economic oppression are embedded in every fiber of the system. Racism is not a symptom, it is a mechanism that maintains the interest of the 1% solidly in place. Racism doesn’t hurt BIPOC alone. We are all a part of a system just like our bodies are systems. You may see your brain as in control, but the whole body is unhealthy when the organs are unhealthy. We have falsely been indoctrinated with the idea of the brain’s supremacy. If we diverted all of the body’s resources simply to maintain the brain, we would have an unhealthy and dysfunctional body.

We are a part of a whole though it has been ingrained in us to function in silos. There are a lot more people being harmed by our current system than those who are benefitting the system. We can only establish a new Constitution together, practicing:

“We, the people, 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.”

And we should.

. . .

About the authors:

Rita Sinorita Fierro, Ph.D. is a sociologist, an author, evaluator, radioshow host and Intellectual artist. Birthing social equity and justice as the foundation for everyone’s bliss. More at: www.RitaFierro.com

Karla L. Cruel, Esq., is a former educator, now social justice attorney, activist and entrepreneur who launched Legal Empowerment Group to change how lower-to-middle income individuals access justice. She is a mentor, speaker, educator, community advocate and recipient of numerous awards.

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This post was previously published on Medium.

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