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What if, instead of being mummified by lofty obscurity, law lived up to its potential? Law, after all, defines our obligations to one another and establishes that latticework of mutual bonds that connect us as citizens and unite us through our highest principles. Law grants utterance to our collective priorities, our aspirations, our hopes, and our realities; it bespeaks the society we wish to be. We are the law, and the law is us. Constitutions are the marble foundation of such laws, the ultimate list of priorities, in a sense. They are composed of a given society’s red lines and safe words. At their best, they guide a nation toward its dreams. Yet America’s constitution has had little to no input from women or people of color – the majority of the people. Although our constitution has inspired generations, even those that it leaves in the cold, it remains a dim ember of its true potential.
Now picture a constitutional convention not dominated by landowners, men, colonizers, or the independently wealthy. Instead, picture a cybernetic congress harnessing the aspirations of all people, hashed out collectively, rebooting the constitutional enterprise with an entirely new syntax. Imagine a convention where marginalized voices were not peripheral but at the heart of the discussion, informing a complex discourse on rights and responsibilities that mapped onto the contours of real lives.
Across a million screens such discourse would flicker, a neon haze of a convention that would draft a true people’s constitution that was truly for us. A constitution for the whole of humanity, not cuffed by an archaic notion of borders. A constitution that not only keeps government out of our lives when we don’t want it but also ensures its support for individuals and groups when we need it.
A feminist constitution.
Here is a starting place:
We the People, in Order to Defend Our Humanity…
Much has been made of the poetically expressed right to the “pursuit of happiness” in the Declaration of Independence. While it is in no way legally binding, it is an idea that still powerfully shapes our sense of the evanescent, intangible part of liberty and has played host to the projections of countless interested parties through the centuries. Whatever happiness means to you, it seems there’s some musing about a right to have it in that epistolary founding document.
But that idea is terribly limiting. Happiness is not, as some might suggest, the ultimate goal of life. A good word to consider in lieu of “happiness” is the ancient Greek word eudaimonia. It is often mistranslated as “happiness,” revealing how beholden we are to this diminished view of human flourishing in the modern age, but it is better understood as meaning “living a good life for a human being.” It means to flourish in a fullness of practice, to dance through a full range of human experience – from the most pleasurable emotions, states, and practices to the thoroughly unpleasant ones. It means to live a life of meaning.
Eudaimonia excludes oppression: anything that restrains the full flight of your humanity, a flight on which you may make your own mistakes and endure your own pain. A eudaimonic constitution, then, would concern itself with providing for the preconditions of human flourishing. This is the approach a feminist constitution would take.
…Establish Justice, Ensure Freedom From Violence, and Freedom to Be
It would, of course, organize a government – and, for the purposes of our utopian dream, let us suppose that this “government” could take any form: collectivist or hierarchical – but it would place the rights and responsibilities of the people who made up the society at its very center.
Our constitution would begin with the negative liberties. While the current US Constitution outlines various freedoms “from” government intrusion, our constitution would also define freedom from other collective forces: corporations, majority religions, gender norms, prejudicial violence, wealth inequality, and so on. It would make provision for the fact that a child being bullied in school for her sexual orientation, or one forced to live under a highway overpass, could never feel free; it would acknowledge that freedom is not abstract but lived.
Our new constitution would recognize that liberty cannot only be conceived as negative freedoms from intrusion but also ought to be framed in terms of positive freedoms – the freedom “to be.” That bullied child or homeless neighbor cannot be free without government support. While government can limit freedom, it is also necessary for its full realization. Here lie our guarantees of gainful employment, education, health care, security, and shelter. And this positive freedom branches off to a number of fascinating places.
For example, consider the freedom to create the community you want. Today, American law would understand this as a freedom from intrusion into your private life. But what if instead we saw it as freedom to build a family of any shape and size with society’s material support behind you, including multigenerational households, queer houses, poly families, and more, all recognized as valid families worthy of any number of material accommodations provided by the government – special homes, financial remittances, childcare, freedom from policing kinship? The feminist constitution would ensure that no one would prohibit your community, and further, that the law and government would help you build it.
The Right of a Person to Have Sovereignty Over Their Body Shall Not Be Infringed…
While the right to be would surely encompass the right to bodily autonomy, the feminist constitution, unlike the US Constitution, would explicitly establish this guarantee as both a negative and positive liberty.
For too long, the notion of a constitutional right to privacy – a negative right from intrusion rather than a right to something – has been the precarious foundation for the jurisprudence of women’s liberty. For example, it serves as the legal reasoning for a woman’s right to an abortion. Supreme Court Justice William O. Douglas’s famous argument was that a right to privacy existed in the “penumbras” and “emanations” of other constitutional rights; this legal innovation, so essential for so many, was nevertheless a sign of our constitution’s fundamental inequality. In spite of its lofty symbolism, it remains chronically inadequate for the tasks of mass democracy.
A right to privacy divined in such a way – while providing a theoretical guarantee against government intrusion – also inoculates the government from any obligation to ensure that a person can access an abortion. If it is a private affair, it can neither be publicly funded nor publicly guaranteed.
A right to privacy is essential, but what is violated when a person is denied the right to an abortion is only thinly connected to privacy. She is being denied her right to bodily autonomy (not yet recognized in American law). The same is true of trans women denied public funding for health care, hormone therapy, and reassignment surgeries; or when someone is arrested for carrying condoms because they can be used as “evidence” by police to claim that person is a sex worker; or when women of color are arrested for “manifesting prostitution” simply for expressing their political views, by leaning in to talk to someone through a car window, or asking police officers to identify themselves, as Arizona state law currently permits.
But the common denominator here is a question of bodily autonomy, which disarticulates into these crucial concerns: what our bodies are for, how we may put them to use, and who ultimately gets to decide. At present, our abstractly thin rights to contraception and reproductive choice are guarded by a right that is, at best, orthogonal to it. A true constitution that guarded us all would spell out a right to bodily autonomy unambiguously. “My body, my choice” would be at the core of this constitution, not an afterthought that we struggle to pin to words written neither by nor for us.
…and Liberty of Both Kith and Self Shall Be Secure
These constitutional guarantees are further cemented by the idea that groups, as well as individuals, have rights. Currently, American courts treat individuals, not groups, as the carriers of rights, but this notion in practice often ends up annihilating meaningful individual freedom when it is under threat from informal collective forces like racism, sexism, or queerphobia. The health of communities would have to be seen as intimately related to the health and welfare of individuals: our constitution would see groups in society as rights holders. Such a perspective would obviate the individualization of terroristic crimes like rape, revealing them instead as human rights violations that constitute a crime against the body politic as well as an individual person.
This differs sharply from “corporate personhood,” which allows a corporate entity’s “rights” to trump that of the individual – by protecting individual rights through the prism of the group, not taking them away. But our utopian constitution understands that one cannot live freely if one exists in a collective under constant attack, say on account of gender, sexuality, or race – these are identities not bounded by strict spatial limits the way a corporation is.
This nimble vision allows for a fuller constitutional recognition of where meaningful rights lie and how they may be defended and made real. It codifies the idea that we must all stand together to guarantee one another’s rights.
These Rights Shall Not Be Subject to the Vagaries of Markets or Depravation
An ideal constitution would take this seriously and begin from the premise of autonomy, woven into collective responsibility. In other words, we should not only avoid hindering each other’s lives but also share in the responsibility for helping one another secure the conditions of a livable life, through guaranteed public funding for health, education, transport, housing, and energy on hitherto unimagined scales. Imagine if privatizing a school or a railway line was understood as a violation of peoples’ rights; the right to access such things helps to secure other rights.
Not only would there be a right to reproductive health care as such, but also a shared understanding that this right can only be said to exist if any person, anywhere, is able to materially access that care – again, a freedom to, not just a freedom from. We could not allow cost or distance to be obstacles. To have a right to reproductive health care would mean, in a way clearly spelled out in constitutionally florid script, a right to feel it, touch it, and sense it, at no cost to you. It would be what we owe one another.
This would mean that reproductive health care would be publicly funded, up to and including all transport costs; contraception, being essential to such health, would also not be subject to one’s ability to afford it.
This connection, between the immanent right one possesses and the guaranteed material means of living that right, would be the new constitutional framework whence all else would follow.
These rights would not be penumbras and emanations. They would be the bright suns unto themselves.
All Shall Have a Right to the Conditions Necessary for Life and to Dignity
The term “right to life” was long ago co-opted by the Far Right in their quest to invent personhood for fetuses even as it was denied to women. But what would a true right to life applied to us all look like?
A right to life for transgender people would mean a right to all the medical care and self-alteration necessary to fashion a livable life for ourselves, along the same lines of our hypothetical right to reproductive health care, and inaugurated for the same reasons. A right to life, period, would mean a right to a home, a right to food, a right to be free from prejudice and its manifold violent manifestations. It would mean fundamentally rethinking “criminal justice” and regarding the mission of any system worthy of that name as one that puts rehabilitation and community building at the center of its enterprises.
What results is a jurisprudence that is meaningfully intersectional, responds to the intricate questions of life and law with grace, and begins from the experiential reality of the lives of real people. The high-minded obscurity of constitutional law is a symptom of its origins, a vision of society that flies high at ten-thousand feet.
But a feminist constitution begins from the ground up: it asks what we need in order to live and flourish and then provides the sustenance for it, for it trusts us to know what we need to be free.
Ruth Tam is a web producer at DC’s NPR affiliate, WAMU. She has written and illustrated for the Washington Post, PBS NewsHour and Global Post. She lives in Washington, DC, where she enjoys cheese, beer and talking to strangers.
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