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Our 18th Century Bill of Rights Needs Revising

While European countries have updated their constitutions to include economic, social and cultural rights, the US has lagged behind.

(Image: Constitutional documents via Shutterstock)

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There is no denying that the Bill of Rights was progressive at the time it was written – in 1791 – advancing civil and political (and property) rights. Along with the Declaration des Droits de l’Homme et du Citoyen (Declaration of the Rights of Man and Citizen of 1789), it promised to safeguard citizens against arbitrary power; to protect freedom of speech and freedom of religion; and assured citizens that their property could not be taken for public use without compensation.

Both the Bill of Rights and the Declaration provided protections to ensure that anyone accused of a crime had the right to a fair trial. Thomas Jefferson played some role in influencing the drafting of both. And certainly the ideas of major Enlightenment philosophers, such as Montesquieu and Rousseau, provided the intellectual framework for assumptions about individualism, freedom and equality.

But the similarities end there. While France and other European countries have updated their constitutions to include economic, social and cultural rights (with some including environmental rights as well), the US has not ventured beyond civil, political and property rights, and the Bill of Rights has only been gingerly expanded, chiefly to abolish slavery and expand voting rights for Black people and women.

Without constitutional protections, the US lags behind many countries, including poorer ones, such as Malaysia and Colombia, in providing labor protections to workers. Compared with the 33 other member states of the OECD (Organization for Economic Co-Operation and Development), the US ranks consistently at the bottom on health indicators and has the second highest child poverty rate (exceeded only by Romania). Of all these OECD countries, the life expectancy in only three countries – Hungary, Mexico and Turkey – is lower than that in the US, and only Mexico has a higher homicide rate. Also, compared with these countries, the US has the greatest concentration of wealth, as measured by the share of the wealth held by the top 1%.

Perhaps the Constitution is the last thing that comes to mind in trying to account for Americans’ poor outcomes on indicators such as labor protections, health, child poverty, life expectancy and the homicide rate. Yet most constitutions do include provisions that establish principles about the welfare of citizens. These principles are chiefly rooted in the 1948 Universal Declaration of Human Rights and became the basis of constitutions written in the last half of the 20th century as colonies gained their independence or were incorporated into older constitutions.

Comparing Contemporary Constitutions

Now for the first time, all 194 country constitutions are available in English on one website – constitute project, along with search features. Keyword searches on the site yields, out of all constitutions, the following:

72 mention “the right to shelter”;

81, the “right to safe work environment”;

98, “equal pay for equal work”;

132, “human rights”;

132, “the right to a free education”;

134, a “right to health care”;

136, “the right to work”;

149; “the right to dignity”; and

152, the “right to join trade unions.”

While it is, of course, true that constitutional provisions may, at least in part, be aspirational and not legally binding, citizens have every legitimate reason to protest if their government is not working to uphold promises advanced in their own national constitutions. In the United States, citizens have a narrow range of rights, but within that range, there have been protests:

• against torture (“cruel and unusual punishment,” in the Eighth Amendment);

• against surveillance (“unreasonable searches and seizures,” in the Fourth Amendment);

• against the Supreme Court rolling back federal monitoring of redistricting plans that can lead to discrimination in voting (24th Amendment); and

• against the imprisonment of migrants who are not charged with a crime (the due process clause of the 14th Amendment).

There have also been protests against the Supreme Court’s ruling regarding corporations’ personhood rights, which is not in the US Constitution.

Thus, when compared with the constitutions of nearly all other countries, the US Constitution is pretty skimpy. Indeed, we could say that it is stuck in the 18th century. This also bears on US commitments in the international community. The US fails to unconditionally ratify international human rights treaties; did not ratify the Rome Treaty (and therefore is not a member of the International Criminal Court); failed to ratify the Kyoto Protocol; and ratifies few of the Organization of American States’ human rights treaties.

The Universal Periodic Review

The Universal Periodic Review (UPR) was established in 2006 to promote human rights in every country and ensure the steady advance of adherence to human rights norms around the world. Each country is reviewed every four and a half years. The objectives of the UPR are:

1) Promote the universality, interdependence, indivisibility and interrelatedness of all human rights;

2) Ensure universal coverage and equal treatment of all States;

3) Be an intergovernmental process;

4) Be UN Member-driven and action oriented;

5) Fully involve the country under review, conducted in an objective, transparent, nonselective, constructive, nonconfrontational and non-politicized manner;

6) Fully integrate a gender perspective;

7) Take into account the level of development and specificities of countries; and

8) Ensure the participation of all relevant stakeholders, including nongovernmental organizations (NGOs).

In 2015, the US was up for its second review, which, following established guidelines, was based on a compilation of official documents by the Office of the High Commissioner of Human Rights, the contributions of 117 State Parties that participated in the televised review on May 11 and 91 prepared reports by US nongovernmental organizations. In other words, the process is methodical and carried out according to a schedule with full transparency. It did not go at all well for the United States. The comprehensive review led to an extremely negative evaluation, or, as Jamil Dakwar, director of ACLU’s Human Rights Program, described it, a “scathing assessment of the US’s human rights record.”

State Parties recommended, among many, many other things, that the US:

• Ratify international human rights treaties;

• Implement safeguards against torture;

• Combat racial discrimination;

• Continue progress implementing rights of LGBTI people;

• Combat racial discrimination;

• Ensure surveillance is consistent with international human rights law;

• Ensure due process for migrants;

• Provide for safe abortion;

• Reduce poverty;

• Ensure women are paid equally as men for the same work;

• End child labor on farms;

• End various forms of inequality;

• Abolish the death penalty; and

• Implement measures against excessive use of force by police.

Now, Perhaps, Is the Time!

There is, perhaps, no better time than now – the year of the United States’ comprehensive Universal Periodic Review – to start a process whereby US citizens engage a far-reaching and comprehensive discussion about updating the Bill of Rights to ensure that the US government recognizes their human rights just as other governments recognize the human rights of their own citizens.

Having been comprehensively reviewed (by State Parties, US nongovernmental organizations, and compared with official UN benchmarks), this is an ideal opportunity to launch lively discussions (in town halls, at colleges and universities, and on radio and television) about how the United States government can best protect citizens’ human rights and what responsibilities citizens have, not only to one another, but also to monitor their local, state and federal governments to ensure they are accountable to all the people, all of the time.

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