In the wake of Ferguson, I’m writing to guage the interest in framing and running civil rights campaigns using the tools and platform that the Community Rights movement provides through local assertion and elevation of civil rights. Ferguson boils, but every community suffers (perhaps more quietly) from the same underlying problems and tensions.
For people who are already on the same page about the flawed legal foundations of our civil rights laws and want to dive into specifics, feel free to jump to
The legal problem with current civil rights laws
In our current national legal system, civil rights laws depend on commerce law as their source of authority and enforcement. Our system views commerce as a more fundamental legal reality than civil rights. In other words, we don’t recognize the civil rights of anything we don’t view as an economic unit of value. Due to this dependency, when a conflict exists between the two, the more fundamental structure takes precedence and nullifies the civil rights. Enforcement of rights depends on the ability to enforce commerce laws, which often puts various movements in artificial conflict with one-another (e.g., environmentalists filing amicus briefs in support of federal violation of civil rights).
Past civil rights gains have depended on the Commerce Clause for their constitutionality and enforceability, because the current US Constitution does not recognize, nor does it grant authority to protect, inherent and inalienable rights separately from commerce. For example, Violence Against Women Act (VAWA) supporters have stated concerns about the viability of the civil rights-based law[6] due to its dependence on the recently-limited Commerce Clause as the source of constitutional authority to enforce civil rights laws in the wake of United States v. Lopez.[7] Two years later, United States v. Morrison, 529 U.S. 598 (2000) struck down the civil rights remedy of VAWA because it “exceeded Congressional authority.”
The actual text of the law read:
The text of the clause recognized the “right to be free from crimes of violence: All persons within the United States shall have the right to be free from crimes of violence motivated by gender.”
Our federal government does not and will not recognize this civil right, and as such, does not recognize gender violence as a priority issue to address in our society. More fundamentally, it does not have the legal authority to even consider it a priority. Our government also has no legal basis to prioritize civil rights above commercial activity. As such, our government will either directly violate or support the violation of civil rights wherever it appears that commerce benefits.
Consider this in the context of the violence occurring in our nation: both police and non-police shootings are gender-motivated. (http://www.huffingtonpost.com/jackson-katz/men-gender-gun-violence_b_2308522.html) The majority of violence in our nation falls into two categories: men harassing and assaulting other men, or men harassing and assaulting others who don’t identify or appear as heteronormative men (including women and LGBTQ people). The common theme, though, is that most perpetrators are men, and most violent crimes are motivated by gender. Consider the racial tensions in the nation right now: How many of those shootings involved women? We’re talking about situations almost invariably involving male cops targeting black men or boys.
What do we do?
We don’t need to wait to address the violence at its roots. All it takes is for us to decide that we won’t wait any longer for someone else to make violence a priority and fix the issue for us. The community rights movement presents us with an option for a legal system where everything else in our law and society derives from inherent, inalienable rights. To create a more fundamentally just system takes work on every level of that system, including — but not limited to — a fundamental rewrite of our nation’s constitution (which amounts to more comprehensive rights protections and centering them at the core of our society’s law, a foundation upon which all other laws are based).
Community rights gives us a platform to address this and other egregious and outstanding civil rights issues on local (city, county) levels without needing to wait for state and federal governments to catch up. By confronting these issues locally, we start an important, action-oriented conversation about the fundamental nature of our society. Furthermore, addressing rights on the local levels first ensures an engaged citizenry and helps push the higher levels of governemnt to fall into line with these basic principles of human rights, creating both the substance and structure for the much-needed rewrite of our nation’s constitution as a document representing the collective protections and liberties we, the people (inclusive!) believe everyone should have. In this system, lower levels of government have the freedom to increase or elevate (but not to violate) rights protections as they please, leading to faster adoption of liberties and protections at the highest levels.
We can frame and run a community rights campaign that gives every resident of the county or city where we live the legal right to be free from violence (which is most often motivated by gender). The issue of violence (or almost any other civil rights issue) can serve as a catalyst around which we can build a more comprehensive civil rights movement addressing many outstanding issues. Together, these issues can become Community Bills of Rights that afford elevated civil rights protections to communities and their residents.
Work doesn’t stop at the local level. It builds up to include work at the state and federal levels in parallel. We start at local levels wherever we have traction, to address the issues that the state and federal governments won’t address even as we directly and frontally challenge those structures limiting or undermining civil rights work in America. “Traction” in the case of community rights means an engaged community, not necessarily a ready and willing political establishment! Because of this, we can create the traction necessary to succeed without having to compromise or play games with the corrupt political establishment. Each campaign, win or lose, exposes and widens the cracks in the unjust foundations of our society’s legal structure, and moves us closer to the lasting change we demand, at the scale we demand, even as we create pockets of civil justice at local levels.
Homeless rights: a human rights baseline
As an example sister issue, others have mentioned how homeless people lack rights simply by lacking (the means to have) a legal residence. As a result, homeless people exist as second or even third class citizens, subjected to all sorts of harassment and other violence that they cannot avoid by virtue of being homeless. But that same violence and harassment affects us all. By establishing a homeless bill of rights, we increase protections for the entire population by establishing a solid baseline of human rights that does not require property ownership — a safety net for all of us! Similarly, a focus on the rights of youth would also go a long way toward creating a peaceful, just and free community.
These are just some quick ideas of major donut holes in our civil rights laws, to start conversation.
We can move civil rights law forward, right now, to create a more just and more free society. We don’t have to wait for the state or federal governments or ask for permission to do it. We just do it. We, the people, lead, they follow. What do you say?
What would a Community Bill of Rights look like?
It would first and foremost enact the legal civil rights protections that we seek to recognize or elevate, whatever we decide those to be.
Second, there are several things the Bill of Rights must do to protect those laws:
- It must describe how the above laws are not subject to federal or state pre-emption because they elevate rights protections
- It must strip corporations and all other fictitious entities of any claim to legal personhood so that they do not abuse and hijack such civil rights protections for nefarious purposes that ultimately violate the rights of real persons and communities
- It must describe how the rights are self-enforcing, rather than relying on commerce law as their basis for existence.
