Public Pension Reform Is Without Legal and Moral Justification

To possess a right to a promised deferred compensation, such as a pension, is to assert a legitimate claim with all state legislators to protect that right. There are no rights without obligations. They are mutually dependent. Fulfilling a contract is a legal and moral obligation justified by trust among elected officials and their constituents.

According to philosopher David Hume, the idea of keeping a promise depends upon creating rules of justice; that rules of contracts, for instance, have to be considered morally desirable as well. In other words, a “contract” or promise between the state and its public employees must be viewed as a moral commitment and requirement of justice. Justice demands we keep our “covenants” with one another. In regard to public pensions, keeping an agreement means a concern to promote the well-being of public employees and the need to secure their rights.

All citizens of the United States have rights that must be protected. When legislators swear an oath to uphold the state and federal constitutions, then citizens of any state have also acquired the right to expect that they will uphold that pledge. This is also a matter of important moral concern for all citizens of a state, for all legal claims will be validated by a moral framework since the concept of justice is grounded in ethics. If citizens’ legal rights are abused, then their dignity and humanity will also be violated.

Like all other citizens, most public employees’ legal rights are derived from past political constitutions, legislative enactments, and case law. All citizens of any state have a fundamental right to oppose a General Assembly that imposes a violation of their constitutional rights and earned benefits… “Any statute which [is] imposed upon [public employees]… in order to redistribute resources and thus benefit some persons at the expense of others [extends] beyond the implicit boundaries of legislative authority. Such laws…violate natural rights of property and contract, rights lying at the very core of the private domain” (Laurence H. Tribe, American Constitutional Law).

Current pension reform is without legal and moral justification, especially when it is guaranteed by state constitution and contract; furthermore, to call it “pension reform” when it is “breaking a contract” is a fabrication.

“Wherever there is a right, the case is one of justice and not of the virtue of beneficence… When we call anything a person’s right, we mean that he [or she] has a valid claim on society to protect him [or her] in the possession of it, either by the force of law or by that of education and opinion” (John Stuart Mill, Utilitarianism).

The significant issue of pension reform is its attack on public employees’ rights to constitutionally-guaranteed, earned compensation and the legislators’ obligation to safeguard those promises. An unconscionable constitutional challenge of those rights and benefits generates a serious threat to their secure sense of worth as citizens and creates the unfair possibility for an economic disadvantage for a particular group of people and their families. This can never be legally or morally justified.

Public employees are promised certain retirement compensation. It is earned; it is not a gratuity. They expect and plan their lives based upon these promises. “The very idea that [the state can] hold [public employees’ lives], or the means of [their] living, or any material right essential to the enjoyment of life, at the mere will of another ‘has been thought’ intolerable in any country where freedom prevails” (John Locke, Two Treatises of Government).

State “governments must respect ‘vested rights’ in property and contract…” (Tribe). We should be able to assume legislators across the United States understand this concept of justice and that lawfulness demands that people keep their “covenants” with one another. No justice is accomplished when subordinating or diminishing public employees’ rights and earned benefits because of past legislators’ negligence, irresponsibility, and corruption.

All citizens have legal justification for their rights. As stated, the foundation of their rights is the State and US Constitutions that directly support any claims against them. State contracts are protected by the federal government. Understandably, the 5th and 14th amendments of the United States Constitution protect due process of law. The legal bases for protection of past-and-future public pension rights are established in both constitutions.

To impair the obligation of a contract is to lessen its value. “Any law which changes the intention and legal effect of the original parties, giving to one a greater and to the other a less interest or benefit in the contract, impairs its obligation” (115 A. 484, 486). State statutes which do so are prohibited by Article 1, Section 10 of the United States Constitution. There are seven states that have a legal basis for protection of public pension rights explicitly expressed in their state constitution: Illinois, New York, Alaska, Arizona, Hawaii, Louisiana and Michigan. Both “past and future” accruals are only protected in Illinois, New York and Alaska.

Any pension reform with a coercive choice offers public employees no ethical and lawful alternatives except to consent to a state’s General Assembly’s demands by choosing between two illicit choices. It is unlawful because of the illegitimacy of the General Assembly’s interested attempt to renegotiate a constitutionally-guaranteed contract; it is unlawful to induce undue pressure upon public employees to make an unfair choice; it is an unjust financial enhancement for a state’s General Assembly because it is a breach of contract for public employees to receive less than what the original vested right and earned compensation guaranteed, and it is a blatant exploitation of influence to obtain an unwarranted advantage.

“Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override… It does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by the many. Therefore, in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests” (John Rawls, A Theory of Justice).

“The notion that, whenever a privilege or benefit might be withheld altogether, it may be withheld on whatever conditions government chooses to impose, has been repeatedly repudiated since the mid-20th century… Unconstitutional conditions – those that make enjoyment of a benefit contingent on sacrifice of an independent constitutional right – are invalid…” (Tribe).

Breaking a contract threatens the integrity of all laws that govern and protect the citizenry, for the values of the United States Constitution (Article I, Section 10) and a state’s constitution are dependent upon the understanding and integration of all of the articles and amendments in totality; “the strength of the constitution[s] would not be proven by considering each article or amendment in isolation from the others” (Tom Beauchamp, Philosophical Ethics).

As citizens, we are advocates of a unification of the Bill of Rights in the United States Constitution, which protects all of us from any violations of human rights and contracts, as much as we would wish others to be motivated by a way of life that is also governed by a complete moral system of thinking. There are no good reasons for legislators’ attack on public employees’ rights and benefits and their attempt to equate public employees’ lives to an exchange rate in dollar amounts. A state’s General Assembly cannot justify pension reform in accordance with fundamental, constitutional principles of reason and morality.

What we call rights of individuals are bound up with the theory and precepts of social and political justice we adopt (John Stuart Mill, On Liberty). All citizens have legal justification for their rights and for compensation they have earned, for rights and obligations are logically correlative, and a citizen’s rights imply or complement the legislators’ obligation to guarantee them.

The keeping of promises is a state’s General Assembly’s legal duty. It is something the United States Constitution requires them to do whether they want to or not. Unfortunately, many legislators are willing to act without moral or ethical principles, even though “claims of rights [are] prima facie or presumptively valid-standing claims” (Beauchamp).

What is at stake right now across the US is not a potential adjudication of claims that public employees will have against policymakers who want changes to public employees’ benefits and rights, but to respect the public employees’ contractual and constitutional promises because they are legitimate rights and moral concerns not only for public employees, but for every citizen: for any unwarranted act of stealing a person’s guaranteed rights and compensation will violate interests in morality and ethics and the basic principles of both the State and United States Constitutions that protect every one of us.

For that reason, it is imperative that policymakers and stakeholders examine their own ethical and moral principles and their conduct in view of the fact that they will have to justify their decisions to the citizens of their states. Certainly, moral responsibility and legal obligation to fund the public pension systems should not be ignored.

It is a moral concern and legal duty to reform the state’s sources of revenue and to address the incurred pension debt through restructuring so the state can provide services for its citizens and fund the public pension systems instead of targeting public employees, and thereby forcing them to defend their constitutional and contractual rights.

There is no justice in granting financial benefits for the wealthy among us and attempting to place the burden of financing public pensions upon schools and taxpayers by a state’s policymakers; there is no justice in granting tax breaks for wealthy corporations and, at the same time, legislating cuts to public employees’ constitutionally-promised compensation. It is ethically wrong to perpetuate unfair distributions of debts, especially when state legislators give “undeserved weight to highly-organized wealthy interest groups, [those groups] tending to ‘drain politics of its moral and intellectual content'” (Tribe).

If policymakers do not take individual rights and contracts seriously, but prefer to challenge them in a court of law, then we can assume legislators of state General Assemblies will not take any of their other laws seriously either. To “let the courts decide” is a travesty of justice, a costly effrontery and negligence of a legislator’s oath of office. Public Pension Reform Is Without Legal and Moral Justification.