If there is one area of American democracy that would seem to be largely immune from criticism, it is the protection of basic rights and liberties.  We were pioneers in this area with the passage of the first ten amendments to the constitution – the Bill of Rights – in 1789.  And well into the 19^th century, the U.S. was considered the model for how to protect key political rights, like freedom of speech. But unfortunately, time marches on.  The notion of what kind of human rights should get constitutional protection has evolved considerably in the last two hundred years.  And other major democracies, whose constitutions were adopted much later than ours, have been able to incorporate these new rights.  So while we were once the leader of the pack, we now are lagging far behind other countries and we are failing to protect many important human rights for American citizens.

The Problem

Clearly, one crucial measure of any democracy is the extent to which it protects the personal and political freedoms of its citizens.  And on that score, we have some reason to be proud in the United States.  We sometimes like to think that we invented civil liberties, but that is not entirely accurate. There was an English Bill of Rights passed in 1689, that codified a few basic rights, like freedom of speech, and freedom from cruel and unusual punishments, and which served as something of a model for ours.  But our Bill of Rights, a hundred years later, greatly expanded these rights to include such things as freedom of the press, freedom of religion, the right of assembly, the right to a jury and a speedy trial, and the right against unreasonable searches and seizures. And for some time the United States Bill of Rights served as an example for other countries wishing to protect these civil liberties in their constitutions.  No one wanted to adopt our Electoral College, but our Bill of Rights was seen as something well worth copying.

And throughout the years, the U.S. has generally done well in protecting us from oppressive government actions in these areas.  Of course, there have been many glaring exceptions to this rule. In the 19^th century, the Supreme Court gave support to slavery and found unions to be unconstitutional.  World War One saw the suppression of socialist and pacifist movements, and Japanese Americans were put in camps during World War Two. McCarthyism ran amok in the 1950s, and the FBI harassed the Civil Rights and Anti-War movement in the 1960s.  More recently, the Black Lives Movement has made it clear that African Americans still don’t enjoy the right of due process in the criminal justice system. But for the most part, Americans have been free to enjoy the traditional rights and liberties guaranteed by our Constitution.

This was confirmed by the 2020 Freedom House world study that examined how well countries protect political rights and civil liberties. The report gave the U.S. the highest possible scores in protecting tradition rights like freedom of religion, freedom of the press, freedom of speech, and freedom of assembly. Nevertheless, the U.S. ended up being ranked 53^rd in the world in protecting rights – right behind Slovakia. How can this be so?  Because the U.S. got lower scores for protecting rights that go beyond the traditional liberties mentioned above. Take the right to free and fair elections. Freedom House marked the U.S. down for problems with the Electoral College, gerrymandering, voter suppression, and the undue influence of wealthy contributors.  Or consider the freedom to join a union. Freedom House noted that Republican administration attacks on union organizing, anti-union decisions by the Supreme Court, union-busting by corporations, and state-level discouragement of public unions have all undermined that right in the U.S.

Americans might well complain about being marked down for poorly protecting rights that are not even in our constitution.  But that is exactly the point. The problem is that the American notion of what basic rights deserve constitutional protection has become increasingly limited and outmoded. We are stuck in an 18th century view of what are essential rights. Notions of which human rights deserve constitutional protection have greatly changed and expanded – and the U.S. has failed to keep up. For example, almost all modern constitutions enshrine the right of workers to organize and engage in collective bargaining – a right that would have hardly occurred to the Founding Fathers.

Other Democracies Do It Better

If we look at our peer democracies with more modern constitutions, we see that they not only protect traditional individual and political liberties, but also enshrine many social and economic rights that are missing from our constitution.  Belgium, for example, has the usual array of traditional constitutional protections for speech, religion, the press, etc.  But beyond that, the Belgium constitution says that its citizens have a right to a job, a fair wage, medical care, adequate housing, free education, and a healthy environment.  Such protections are not unusual.  Among fifteen Western European democracies, eleven have the right to work enshrined in their constitutions.

Or consider the issue of gender equality.  The U.S. tried and failed to pass our own Equal Rights Amendment.  In the meantime, many other major democracies have moved ahead to include this right in their constitutions.   Of 25 countries in Europe and North America, 17 have gender equality provisions in their constitutions, 11 have gender non-discrimination provisions, and 4 have women’s rights provisions.  Only four have none of these in their constitution:  Denmark, Ireland, Monaco, and the United States.

Some Americans tend to think that these new kinds of social and economic rights have no place in a constitution – that they can simply be protected or promoted by legislation.  But you could make the same argument about freedom of the press, or the right to a lawyer.  Why do those particular rights deserve constitutional protection and others do not?  Advocates for these new social and economic rights argue that they are every bit as important and fundamental as the rights currently enjoying constitutional protections in the United States.  The main rationale for constitution rights is that there are some human rights so important that we cannot leave their protection or promotion to the whims of legislatures. Shouldn’t access to medical care be one of those rights?

The idea that Americans should have important social and economic rights is nothing new in our country.  In 1944, for example, President Franklin Roosevelt proposed a “second Bill of Rights under which a new basis of security and prosperity can be established for all.” These rights included the right to a job, the right to a decent home, the right to medical care, the right to education, and “the right to adequate protection from the economic fears of old age, sickness, accident, and unemployment.”  Roosevelt did not actually propose that these rights be added to the Constitution, but assumed that they could be adequately promoted through legislation.  This was a mistake.  As Cass Sunstein has shown in his book The Second Bill of Rights: FDR’s Unfinished Revolution, and Why We Need It More Than Ever, Congress has done a poor job of promoting these basic economic and social rights – which is exactly why some have argued that these rights need to be raised to the constitutional level.

Positive vs. Negative Rights

Many of these new rights are what are called “positive rights,” in contrast to the “negative rights” that are currently in the U.S. Constitution.  Negative rights are protections from the power of the state, and prevent governments from interfering with free speech, the practice of religion, etc.  They block government from doing bad things to people.  Positive rights actually require some action by governments.  A right to education, for example, requires the government to establish and fund public education systems.

In the U.S. the founders were obsessed with the dangers posed by an oppressive government, and used rights as a way to restrain government and protect citizens. In contrast, the notion of positive rights acknowledges that there are many other serious threats to the well-being of citizens besides government – like over-powerful corporations, environmental pollution, illness, unemployment, and old age – and that protecting people from these threats requires an active and well-funded government.  While negative rights focus on restrictions on public power, positive rights recognize that the private sphere can also be a source of oppression and exploitation.  The notion of positive rights is thus in keeping with a more modern and positive view of the purposes of democratic government, which see its primarily role as helping to solve people’s pressing problems, not simply refraining from being a source of those problems.

Americans Need and Want More Rights

Americans need and deserve the same full range of constitutional protections that citizens enjoy in most other advanced democracies.  And there are plenty of indications that Americans  already support a more expansive vision of basic rights than is currently contained in our Constitution.  Three out of four Americans support, for example, a constitutional amendment guaranteeing equal rights for women.

Many Americans seem to believe that there is some kind of constitutional right to vote – but this is not so.  Clearly, however, this would be a popular amendment.  A Pew Trust poll found that 91% of Americans view the right to vote as “essential to their freedom”—up there with constitutional rights like freedom of speech (92%) and freedom of religion (85%). A “Right to Vote Amendment” would make it much easier to block the new wave of voter suppression measures being passed in some states, and ensure that all Americans have ready access to the power of the vote.

There is also increasing evidence that more and more Americans view access to healthcare as a basic right – as in the case in all other advanced democracies.  Polls show, for instance, that 60 percent say that ensuring health care coverage is the government’s responsibility. Also, 71% say they favor a Medicare-for-All plan because it would “guarantee health insurance as a right for all Americans.” If large numbers of Americans now believe that healthcare is a right, then making it a formal right in the Constitution makes a good deal of sense.

Another area where stronger rights are needed is in union organizing.  Beset by union-busting corporations, hostile state legislatures, and decades of anti-union court rulings, unionizing has been on the wane for years, and has declined from 35% in the private sector in the 1950 to just 7% today.  This despite a 2018 poll showing that 48% of Americans say they want to be in unions.  And despite the fact that most other Western democracies have much higher unionization rates – over 65% in Sweden for instance, 33% in Ireland, 30% in Canada, and 18% in the Netherlands and Germany. Not surprisingly, the EU Charter of Fundamental Rights includes an article on “Right of Collective Bargaining and Action.”  In the U.S., the New York Times has argued that there needs to be a “civil right to unionize.” The decline of unions has had a devastating impact on many American families.  Research has found that shrinking rates of unionization are a major cause of loss of economic mobility and account for almost half of the decline in middle-class incomes in the U.S. Higher unionization rates in other democracies are a major contributor to their lower rates of poverty and better-off working classes.  Making the right to organize at work part of the Constitution would be an important step in reversing the dramatic decline of the economic and political power of working people in this country.

The States Do It Better

While the rights in the federal Constitution have remained largely frozen, some states have moved forward to grant their citizens new kinds of constitutional rights. A study by Emily Zackin found that many state constitutions contain provisions that required state legislatures to pursue some positive rights, such as public education, workers’ rights, and environmental protection. For example, by the beginning of the twentieth century, virtually all state constitutions required that their legislatures establish and maintain public school systems – effectively establishing a right to education for all citizens.  In addition, nineteen state constitutions now provide a variety of protections for workers – covering such things as hours, workplace safety, and wages.  These provisions require active state intervention to protect these rights for workers, and came about because it was thought that legislators could not be trusted to ensure and promote the basic interests of working people in this country.

The main reason that these kinds of new rights came to be in state constitutions is that it is much easier to change them than the federal constitution.   Many states have had constitutional conventions, and many allow constitutional changes by a majority vote of the legislature or by public referendum.  This easier amendment process has allowed state constitutions to evolve as notions of basic human rights have changed. For example, awareness of environmental issues in America did not come on the scene until the 1960s.  But relatively soon thereafter, you began to see various kinds of environmental rights being added to state constitutions.  Between 1964 and 1978, eleven states added constitutional provisions that required legislative action to protect the environment or actually established explicit environmental rights.  The Illinois constitution, for instance, now says that “Each person has the right to a healthful environment.”  And the Rhode Island Constitution says that the state has the duty “to provide for the conservation of air, land, water, plants, animals, minerals, and other natural resources of the state.”

All of this is evidence that many citizens actually want an expanded version of basic rights in our constitutions.  Indeed, virtually all the examples of positive rights inserted in state constitutions came about because of political pressure from the ground up and a lot of hard work by education, labor, and environmental organizations.

Chances for Reform:  Not Good at All

To be fair, federal constitutional rights have not been completely static in the United States.  The Supreme Court has sometimes used its power to interpret and reinterpret the Constitution to expand somewhat the notion of rights that are protected.  For example, the Court has, through a series of decisions, established a constitutional right to privacy, though no such right exists explicitly in the Constitution.  And it has extended that right to include such things as the right to abortion, to view pornography, and to terminate life-prolonging medical treatments. But while the Court has from time to time expanded the “negative” rights in the Constitution, it is highly unlikely that it will do anything to try to establish the kinds of “positive” rights that have been embraced by our peer democracies, such as the right to health care.

As we’ve seen, there is a great deal of public support for some new constitutional rights – like an Equal Rights Amendment – and this can work in favor of change.  But as always, the main impediment is the extremely difficult process of amending our constitution.  If an amendment like the ERA that has 75% support can’t make it through this ridiculously arduous process, other new rights amendments stand little chance.  Working in opposition as well are powerful conservative politicians who are ideologically opposed to the notion of “positive rights” that would compel the government to actively remedy unfairness or provide basic services.  Their adamant opposition to expanding any kind of government power – even the power to do good – is part of what makes it difficult to be optimistic that we will catch up any time soon with the expanded rights enjoyed by people in other major democracies.

read the next issue: 16. The Drawbacks of Federalism