tag:theconversation.com,2011:/uk/topics/constitutional-amendment-5611/articlesConstitutional amendment – The Conversation2023-08-17T12:33:46Ztag:theconversation.com,2011:article/2113292023-08-17T12:33:46Z2023-08-17T12:33:46ZOhio voters kept it easy to pass a constitutional amendment protecting abortion − but also for the majority to someday limit other rights<figure><img src="https://images.theconversation.com/files/542866/original/file-20230815-19-hrjzh2.jpeg?ixlib=rb-1.1.0&rect=28%2C7%2C4732%2C3162&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather at the Marion County Republican Party headquarters after discussing Issue 1 on July 13, 2023, in Marion, Ohio. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-gather-at-the-marion-county-republican-party-news-photo/1583887732?adppopup=true">Maddie McGarvey/For The Washington Post via Getty Images</a></span></figcaption></figure><p>Issue 1 on the Ohio ballot, which aimed to raise the threshold to change the state constitution from a simple majority – 50% of voters plus one – to 60%, got <a href="https://www.nytimes.com/2023/08/08/us/ohio-election-issue-1-results.html">enormous national attention</a> for a state ballot measure in an off-year special election. </p>
<p>No doubt this was because it was linked to the current state battles over abortion rights <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">following the demise of Roe v. Wade</a>. Both advocates and opponents saw the voting threshold change as potentially critical to the fate of an Ohio abortion rights measure already slated to be <a href="https://ballotpedia.org/Ohio_Right_to_Make_Reproductive_Decisions_Including_Abortion_Initiative_(2023)">on the ballot in November 2023</a>. On Aug. 8, 2023, Ohio voters soundly rejected Issue 1. </p>
<p><a href="https://www.washingtonpost.com/politics/2023/08/10/why-so-many-republicans-voted-no-issue-1-ohio/">Media coverage about Issue 1</a> commonly framed it as an effort by abortion opponents to obtain a short-term victory by making it much harder to pass the November abortion rights measure. The timing of the measure, and the lack of a link to current efforts to reform direct democracy, make such claims plausible. </p>
<p>But as <a href="https://scholar.google.com/citations?user=dCficcgAAAAJ&hl=en">scholars of</a> <a href="https://scholar.google.com/citations?user=mEd-UucAAAAJ&hl=en">direct democracy</a>, we believe Issue 1 wasn’t simply, or only, about abortion rights. </p>
<p>It provided an answer to the broader questions about what belongs in a state constitution and how and what protections should be available for members of minority groups in a democracy. </p>
<p>Ballot initiatives have historically been used to attack those rights. We believe that creating higher voting thresholds for constitutional change makes state constitutions harder to amend – and protects the minority from the majority. </p>
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<a href="https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="An old document that begins with 'We the People.'" src="https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542878/original/file-20230815-19-gisz6e.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">It’s not so easy to amend this document, the U.S. Constitution, but it may be too easy to amend state constitutions.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/USConstitution/dd29bd0f764f4e649b2029ed4e594c8a/photo?Query=U.S.%20constitution&mediaType=photo&sortBy=&dateRange=Anytime&totalCount=888&currentItemNo=2&vs=true">National Archives via AP</a></span>
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<h2>Constitutions and how they can be amended</h2>
<p>Like the <a href="https://constitutioncenter.org/the-constitution">U.S. Constitution</a>, <a href="https://ballotpedia.org/State_constitution">state constitutions are foundational documents</a>. They set out broad, general guidelines for state government, such as the powers of different branches – legislative, executive and judicial – and the rights of citizens. </p>
<p>Regular laws, or statutes, must conform to state constitutions. State constitutions also contain specific rules for how they can be amended. Some, but not all, states <a href="https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-states">allow amendments though ballot measures</a>.</p>
<p>To understand what’s at stake with measures like Issue 1, which aim to change the level of voter support needed to amend a constitution, here are some terms you need to understand: </p>
<p><strong>Ballot initiative</strong> - A process by which voters can, with sufficient signatures, place changes to the state constitution, regular laws or both on the ballot. Currently <a href="https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-states">24 states allow</a> for some type of voter initiative. The U.S. Constitution does not allow for constitutional amendment initiatives at the national level.</p>
<p><strong>Initiative constitutional amendment</strong> - A process by which voters can place a change to the state constitution on the ballot. Currently 17 states, including Ohio, <a href="https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-states">allow for initiative constitutional amendments</a>.</p>
<p><strong>Initiative statutes</strong> - A process by which voters can place a <a href="https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-states">change to regular state laws</a>, such as a criminal justice law, on the ballot. Currently 21 states, including Ohio, allow for initiative statutes.</p>
<p>The normal <a href="https://www.senate.gov/reference/reference_index_subjects/Constitution_vrd.htm">process of amending the U.S. Constitution</a> is exceptionally difficult – <a href="https://www.nytimes.com/2023/05/05/opinion/constitutional-amendments-supreme-court.html">perhaps too difficult</a> – requiring two-thirds of legislators in both houses of Congress to approve a proposal; the proposal must also receive majority backing from three-fourths of state legislatures. </p>
<p>While the <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-the-legislature-constitutional-provisions/">process to amend state constitutions</a> is not as difficult, it is still challenging, especially if a proposal originates within the legislature. </p>
<p>States generally <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-the-legislature-constitutional-provisions/">require more than a simple majority</a> in a single legislative session for legislatively originated constitutional amendments. Almost all states also require subsequent voter approval of amendments backed by the legislature.</p>
<p>Yet, <a href="https://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives">Ohio</a> and some other states, including <a href="https://oag.ca.gov/initiatives">California</a> and <a href="https://ballotpedia.org/Laws_governing_the_initiative_process_in_Colorado">Colorado</a>, place much lower barriers on initiative constitutional amendments. These states allow their foundational document to be altered with a simple majority of voters at a single point in time. The contrast with the legislative route is striking and meaningful.</p>
<h2>Changing constitutions through initiatives</h2>
<p>Some characterized Issue 1’s defeat as a “<a href="https://www.nytimes.com/2023/08/08/us/ohio-election-issue-1-results.html">victory for democracy</a>.” Yet such arguments offer little consideration of deeper issues with changing a state constitution by a single, simple majority vote on a ballot measure.</p>
<p>The American founders worried greatly about tyranny of the majority, and such concerns have also <a href="https://www.jstor.org/stable/2111715">haunted the use of the initiative process</a>. Initiatives solve the problem of gridlocked legislatures, a feature of American legislative politics. But they also do so without much thought or discussion about principles like justice, fairness or if voting majorities are actually representative of the population at large. Additionally, the founders aimed to enhance government stability by making the U.S. Constitution difficult to amend. </p>
<p>Our <a href="https://doi.org/10.1007/s11109-008-9081-x">decadeslong</a> <a href="https://doi.org/10.3998/mpub.9993024">research</a> <a href="http://dx.doi.org/10.17645/pag.v7i2.1873">about state ballot initiatives</a> finds that state constitutions that are easy to amend – such as through simple majority votes – often end up trampling on the fundamental rights of members of minority groups.</p>
<p>As political theorist <a href="https://yalebooks.yale.edu/book/9780300267235/the-struggle-for-a-decent-politics/">Michael Walzer</a> states in a recent book about decency in politics, “Liberal democracy sets limits on majority rule,” including the protection of individual rights for members of minority groups. </p>
<p>Yet our research and <a href="https://doi.org/10.1177/1065912907301984">that of others</a> show how voters commonly use the initiative process to attack the rights of minority groups – and almost never to advance them. Sometimes this includes passing initiative constitutional amendments with significantly less than 60% approval. </p>
<p>For example, the relatively liberal Colorado electorate – which more recently reelected its <a href="https://apnews.com/article/health-colorado-united-states-coronavirus-pandemic-jared-polis-9e2c88bf87158a7ecc12a530b95e31ee">first openly gay, married governor</a> – <a href="https://ballotpedia.org/Colorado_Amendment_43,_Definition_of_Marriage_Initiative_(2006)">banned same-sex marriage in 2006</a> with an initiative constitutional amendment earning 56% of the vote. </p>
<p>California voters passed <a href="https://ballotpedia.org/California_Proposition_8,_Same-Sex_Marriage_Ban_Initiative_(2008)">a similar measure in 2008</a> with about 52% of the vote. </p>
<p>It took the 2015 decision by the U.S. Supreme Court to overturn the bans on same-sex marriage enacted by <a href="https://www.pewresearch.org/religion/2015/06/26/same-sex-marriage-state-by-state-1/">more than half of state electorates</a>, including Colorado and California.</p>
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<a href="https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large yellow and black banner that says 'Restore marriage Yes on 8'" src="https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=468&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=468&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=468&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=588&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=588&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542869/original/file-20230815-21-qu2yj5.jpeg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=588&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">California banned same-sex marriage in 2008 with an initiative constitutional amendment that won about 52% of the vote.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/GayMarriageSchools/508c1667368d45a3b4b6931d300461aa/photo?Query=Colorado%20gay%20marriage%20vote&mediaType=photo&sortBy=arrivaldatetime:asc&dateRange=Anytime&totalCount=915&currentItemNo=30&vs=true">AP Photo/Steve Yeater</a></span>
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<h2>Limitations of majority rule</h2>
<p>The ability to pass an initiative curbing rights with only a majority vote may exacerbate the abortion uncertainties created by the U.S. Supreme Court in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, which rolled back federal constitutional protection for the right to get an abortion. </p>
<p>We can imagine situations where a closely divided electorate might alternate between regimes of easy access to abortion followed by regimes of highly restricted access, or vice versa. </p>
<p>This is in part due to the lack of built-in procedures for compromise in the initiative process. Initiative constitutional amendments present voters with an up-down choice, even though <a href="http://cup.columbia.edu/book/the-great-divide/9780231120593">research</a> has <a href="https://news.gallup.com/poll/313094/americans-abortion-views-steady-past-year.aspx">continually shown</a> that voters’ opinions about abortion are complex.</p>
<p>Initiative constitutional amendments can also add narrow technical provisions that cannot be easily gotten rid of. Such provisions can be harder to correct than those of regular legislation. </p>
<p>Consider <a href="https://ballotpedia.org/California_Proposition_13,_Tax_Limitations_Initiative_(June_1978)">Proposition 13</a>, California’s famous 1978 property tax cutting measure. That constitutional amendment included a specific provision limiting annual property tax increases to 2% annually.</p>
<p><a href="https://www.spur.org/sites/default/files/2022-02/SPUR_Burdens_and_Benefits.pdf">A recent study</a> of the impact in Oakland, California – but also applicable elsewhere – showed this provision was much more beneficial to high-income than low-income homeowners. If California legislators decided to make the state’s property tax policy more equitable, they would have a very hard time doing so, because any attempt to change Proposition 13 <a href="https://www.latimes.com/california/story/2019-08-25/skelton-proposition-13-legislation-ballot-measure-taxes">requires a constitutional amendment</a>.</p>
<p>The inclination to support majority rule is readily understandable. But political theorists and empirical researchers alike have repeatedly warned that there is a danger of majority rule overwhelming the rights of people who are not in the majority, a phenomenon sometimes called “the tyranny of the majority.”</p>
<p>We believe it is a clear mistake to equate majority rule with justice and righteousness. Thoughtful conversations about institutional change are rare in American politics and increasingly so with <a href="https://global.oup.com/academic/product/the-power-of-partisanship-9780197623794?lang=en&cc=us">everything viewed through a strictly partisan lens</a>. </p>
<p>A longer view of history might lead even some of the most ardent partisans to give the founders their due for their concern about the tyranny of the majority. That could lead to a new way to look at constitutional initiatives – not simply as a positive expression of majority, but also as a potential threat to democratic rights and a source of instability.</p><img src="https://counter.theconversation.com/content/211329/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The recent push in Ohio to pass a constitutional amendment was seen as a move to curb abortion rights. It failed. Two scholars say the ballot measure was really about minority rights in a democracy.Edward L. Lascher Jr., Professor, Public Policy and Administration, California State University, SacramentoJoshua J. Dyck, Professor & Chair of Political Science; Director of the Center for Public Opinion, UMass LowellLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2080062023-06-19T02:11:12Z2023-06-19T02:11:12ZReferendum legislation passes 52-19 to applause but Lidia Thorpe condemns ‘assimilation day’<p>The legislation to enable the Australian people to vote in a referendum for an Indigenous Voice to Parliament has passed the Senate by 52 to 19.</p>
<p>The vote took place with the public gallery crowded with supporters, and was greeted with prolonged applause. Those watching included prominent leaders of the “yes” campaign, including Megan Davis, Pat Anderson and Thomas Mayo.</p>
<p>But Indigenous crossbencher Lidia Thorpe labelled it “assimilation day” and interjected repeatedly during the debate on the bill’s third reading, and during the applause.</p>
<p>Those who voted against the legislation will be involved in preparing the no case for the yes/no pamphlet that will be sent to all voters. </p>
<p>Earlier, Nationals leader David Littleproud told the ABC he did not support having the claim the Voice would “re-racialise” Australia – a claim Opposition Leader Peter Dutton has made – included in the pamphlet’s no case. “I don’t support those sort of words. I’m not prepared to put my weight behind those words,” he said. </p>
<p>The government has not announced a date for the vote yet.</p>
<p>The referendum legislation required an absolute majority, so every vote was recorded. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1670601062196338689"}"></div></p>
<p>In the final round of speeches in the Senate, shadow Attorney-General Michaelia Cash said “we are opening up a legal can of worms. The proposed model […] is not just to the parliament but to all areas of executive government. It gives an unlimited scope.”</p>
<p>Opposition spokeswoman for Indigenous Australians Jacinta Nampijinpa Price said the Voice would divide the country. </p>
<p>Greens Senator Dorinda Cox said the Greens “remain committed to the full implementation of the Uluru Statement from the Heart, truth, treaty and voice. The referendum is the first important step.”</p>
<p>ACT crossbencher David Pocock said the Voice was “about ensuring that First Nations people, Australia’s first peoples, have a say on issues that affect them”. </p>
<p>Thorpe declared: “Happy assimilation day”. She said the Voice was “appeasing white guilt in this country by giving the poor little blackfellas a powerless advisory body”. She would be voting no to something that gave no power.</p>
<p>“"There is not one law in this country that has ever, ever, ever been good for us, not one. And now we’re meant to accept a powerless voice. It is truly assimilating our people so we’ll fit nicely as your little Indigenous Australians, it’s what you want us to be, right?”</p>
<p>She was asked by Senate President Sue Lines to cover her T-shirt, which had “gammin” in it, used in Aboriginal slang to mean fake.</p>
<p>Pauline Hanson said many people were still very confused about the proposal. </p>
<p>Assistant Minister for Indigenous Australians Malarndirri McCarthy said “this is a critical moment in our country’s history. It is the right thing to do.” McCarthy paid tribute to Senator Patrick Dodson, who is on extended leave due to illness. </p>
<p>Murray Watt, representing the Attorney-General, called for the coming debate to be respectful, saying there was an onus on people to “tell the truth” and accusing no supporters of misinformation.</p>
<p>Appearing after the legislation passed parliament, at a news conference with Indigenous leaders, Anthony Albanese pitched a strong appeal to voters: “I say to my fellow Australians: parliaments pass laws, but it is people that make history.</p>
<p>"This is your time, your chance, your opportunity to be a part of making history,” he said. It was a “once-in-a-lifetime opportunity to lift our great nation even higher”.</p>
<p>Referencing Labor’s recent historic victory at the Aston byelection, the PM said this was “more important than any by-election ever held”. </p>
<p>Liberal MP Julian Leeser, who quit as shadow minister for Indigenous Australians to support the yes case, said in a statement after the vote: “Over the months ahead, I am looking forward to being part of a movement of Australians from all political backgrounds and playing a part in a campaign that will bring our country together”.</p><img src="https://counter.theconversation.com/content/208006/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The vote took place with the public gallery crowded with supporters, and was received with long applause.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2033942023-04-12T12:42:37Z2023-04-12T12:42:37ZState battles over abortion are leading to state constitutional amendments – an option in all states and available directly to citizens in 18 states<figure><img src="https://images.theconversation.com/files/520373/original/file-20230411-661-p9ot9w.jpg?ixlib=rb-1.1.0&rect=45%2C0%2C2646%2C2171&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Michigan State Capitol, like statehouses around the country, has been the site of numerous abortion policy battles.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/michigan-capitol-building-royalty-free-image/147514506?adppopup=true">Brandon Bartoszek</a></span></figcaption></figure><p>The battles over abortion – who can get one, when they can get one – largely shifted from a focus on the U.S. Supreme Court back to state lawmakers and judges in June 2022. That’s when the <a href="https://apnews.com/article/abortion-supreme-court-decision-854f60302f21c2c35129e58cf8d8a7b0">Supreme Court ruled</a> that there was no federal constitutional guarantee of the right to get an abortion. States, they said, should be making the rules.</p>
<p>That decision, Dobbs v. Jackson Women’s Health Organization, has meant a lot of activity in the past year in both state legislatures and courts. Two <a href="https://www.cnn.com/2023/04/07/politics/read-texas-abortion-pill-mifepristone-ruling/index.html">contradictory rulings early in April 2023</a> about whether women should have access to mifepristone, one of the two kinds of prescription abortion pills typically taken together for abortion, make it clear that federal courts still play a role in abortion policymaking. But states remain an important battleground.</p>
<p>Many people following the abortion battle focus on the part that state courts and state <a href="https://www.brennancenter.org/judicial-selection-map">supreme court elections</a> play. The intense focus on the outcome of the April 4, 2023, <a href="https://apnews.com/article/wisconsin-supreme-court-election-abortion-0d188b5c6f841546f98436c1ab8180fa">Wisconsin Supreme Court election</a>, which shifted ideological control of that court, is an example.</p>
<p><a href="https://politics.wfu.edu/faculty-and-staff/john-dinan/">I am a political scientist</a> whose research focuses on state constitutions. I follow state constitutional amendments, which are adopted <a href="https://law.okcu.edu/wp-content/uploads/2018/09/OCULREV-Spring-2016-Dinan-27-52.pdf">on a regular basis</a> and revise the language of state constitutions. Sometimes they add new provisions. At other times they modify existing provisions. These amendments shape abortion policy as much as state court rulings – and stand to play a big role in abortion rights in the future.</p>
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<a href="https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Yes and No signs stand side-by-side on a Kansas highway as cars approach." src="https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520264/original/file-20230411-14-9esoe0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Signs supporting and opposing a Kansas constitutional amendment on abortion are displayed on Kansas 10 Highway.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/signs-in-favor-and-against-the-kansas-constitutional-news-photo/1412308440?adppopup=true">Kyle Rivas/Getty Images News via Getty Images North America</a></span>
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</figure>
<h2>Using amendments to gain or deny rights</h2>
<p>My <a href="https://press.uchicago.edu/ucp/books/book/chicago/S/bo27596107.html">research</a> shows that in recent decades state constitutions have been amended to shift the level of protection for <a href="https://ballotpedia.org/Michigan_Proposal_3,_Voting_Policies_in_State_Constitution_Initiative_(2018)">voting rights</a>, <a href="https://ballotpedia.org/Wisconsin_Marsy%27s_Law_Crime_Victims_Rights_Amendment_(April_2020)">crime victims’ rights</a> and <a href="https://ballotpedia.org/Montana_C-48,_Search_Warrant_for_Electronic_Data_Amendment_(2022)">electronic data and communication privacy rights</a>, among <a href="https://www.albanylawreview.org/article/69694-state-constitutional-amendments-and-individual-rights-in-the-twenty-first-century">others </a>.</p>
<p>Meanwhile, constitutional amendments have also protected – and in some cases, denied – abortion rights.</p>
<p>Before the Dobbs ruling, abortion-related amendments invariably sought to limit protection for abortion rights by clarifying that there is no state constitutional right to abortion. In fact, between 2014 and 2020, voters in Alabama, Louisiana, <a href="https://www.nytimes.com/2023/01/29/us/abortion-rights-state-constitutions.html">Tennessee and West Virginia approved amendments</a> stating there is no state constitutional right to abortion.</p>
<p>These amendments were designed in some cases to overturn state supreme court rulings that previously recognized abortion rights. In other cases, they were adopted to prevent state supreme courts from ruling in the future in favor of abortion rights. </p>
<p>But voters don’t always approve these amendments. In August 2022, voters in Kansas rejected a <a href="https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment">proposed state constitutional amendment </a> to deny a right to abortion. And in November 2022, voters in Kentucky <a href="https://www.pbs.org/newshour/politics/kentucky-voters-reject-constitutional-amendment-on-abortion">did the same</a>.</p>
<h2>Drafting amendments to protect abortion rights</h2>
<p>After the Dobbs decision, most proposed abortion-related amendments have aimed to expand protection of abortion rights. </p>
<p>In November 2022, voters in <a href="https://thehill.com/policy/healthcare/3608609-state-ballot-measures-are-new-abortion-battleground/">Vermont, California and Michigan approved amendments</a> that explicitly protect reproductive rights. For instance, the California amendment <a href="https://ballotpedia.org/California_Proposition_1,_Right_to_Reproductive_Freedom_Amendment_(2022)">declares</a>, “The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion.”</p>
<p><a href="https://perma.cc/U3UJ-FC7D">Eleven state constitutions</a> already include protection for a right to “privacy.” Many others guarantee “liberty,” “due process” or “equality.” </p>
<p>State courts occasionally rely on these provisions to <a href="https://www.nytimes.com/2023/01/05/us/south-carolina-abortion-supreme-court.html">issue decisions safeguarding abortion access</a>. But the amendments adopted in Vermont, California and Michigan marked the first time language was used in state constitutions to provide explicit protection for reproductive freedom. Similar abortion-rights amendments are set to appear on the ballot in other states.</p>
<p>In early April 2023, legislators in <a href="https://ballotpedia.org/Maryland_Right_to_Reproductive_Freedom_Amendment_(2024)">Maryland</a> voted to place an abortion-rights amendment on the November 2024 ballot. </p>
<p>Meanwhile, in some states that allow citizens to put amendments directly on the ballot, bypassing the need for legislative approval, abortion-rights groups are organizing in support of putting abortion-rights amendments on the ballot. These groups in <a href="https://apnews.com/article/abortion-rights-ohio-amendment-constitution-ballot-vote-793e758f48cbb51cccee90950bd97bb2">Ohio</a>, for example, are collecting signatures to place an abortion-rights amendment before voters in 2023. And groups in <a href="https://apnews.com/article/abortion-missouri-constitution-voters-election-0d2fdde552c2478b283937a6fab78cfc">Missouri</a> are trying to put an abortion-rights amendment on the 2024 ballot. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="The arm of a Black woman, clad in a white sweater and black watch, is seen placing a tag that reads, " src="https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/520300/original/file-20230411-28-w3u33b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A woman places a door tag in support of Proposal 3, a 2022 citizen-initiated proposal for a state constitutional amendment.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/darci-mcconnell-of-grosse-pointe-park-places-a-door-tag-in-news-photo/1244680261">Nic Antaya/The Washington Post via Getty Images</a></span>
</figcaption>
</figure>
<h2>Bypassing the state legislature</h2>
<p>In all 50 states, <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-the-legislature-constitutional-provisions/">legislators have the authority to draft constitutional amendments</a>. In some states, amendments need the support of only a majority of legislators to be placed on the ballot for voter approval. Other states set a higher bar and require amendments to earn the support of a legislative supermajority or get legislative approval in two separate sessions.</p>
<p>But what many people don’t know is that 18 states allow for <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-initiative-constitutional-provisions/">citizen-initiated constitutional amendments</a>. This includes Mississippi, where the <a href="https://www.clarionledger.com/story/news/politics/2022/11/07/no-statewide-ballot-initiatives-in-mississippi-elections-heres-why/69610647007/">process was recently suspended but is expected to be revived</a>. These are particularly powerful tools voters can use to get the outcomes they want, especially if measures to accomplish those goals have been defeated in state legislatures or rejected by courts.</p>
<p>In most of these states, when groups collect enough signatures in support of a proposed amendment, that amendment automatically qualifies for the ballot. Last year in Michigan, for instance, legislators showed no signs of advancing a reproductive-rights amendment. But <a href="https://ballotpedia.org/Michigan_Proposal_3,_Right_to_Reproductive_Freedom_Initiative_(2022)">abortion-rights groups collected more than 500,000 signatures,</a> much more than necessary, and were able to put a reproductive-rights amendment on the November 2022 ballot. </p>
<p>Once on the ballot, citizen-led amendments generally need approval from a simple majority of voters before they can be approved, similar to what is needed to approve legislature-drafted amendments. </p>
<p>But <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-initiative-constitutional-provisions/">Florida, Colorado and Illinois</a> set a higher threshold, and <a href="https://bookofthestates.org/tables/constitutional-amendment-procedure-by-initiative-constitutional-provisions/">Nevada</a> requires voters to approve citizen-led amendments in two consecutive elections.</p>
<h2>Citizens can take the lead</h2>
<p>In states that allow citizen-initiated amendments, citizens and groups can bypass legislators who might not support their issues. What’s more, these amendments take precedence over previous state supreme court rulings to the contrary. So, even when state supreme court justices won’t recognize a right, voters can use the amendment process to get it.</p>
<p>Citizen-led amendments don’t begin and end with reproductive rights. In recent years, citizens have initiated and approved amendments to <a href="https://ballotpedia.org/Michigan_Proposal_2,_Independent_Redistricting_Commission_Initiative_(2018)">establish redistricting commissions</a>, <a href="https://ballotpedia.org/Florida_Amendment_2,_%2415_Minimum_Wage_Initiative_(2020)">boost the minimum wage</a>, <a href="https://ballotpedia.org/South_Dakota_Constitutional_Amendment_D,_Medicaid_Expansion_Initiative_(2022)">expand Medicaid</a> and <a href="https://ballotpedia.org/Missouri_Amendment_3,_Marijuana_Legalization_Initiative_(2022)">legalize marijuana</a>. </p>
<p>And abortion-rights groups that had success with the citizen-initiated amendment process in Michigan in November 2022 are eyeing additional opportunities in Ohio, Missouri and other states. </p>
<p>At the same time, opponents of abortion rights are considering making <a href="https://ohiocapitaljournal.com/2023/03/23/revived-measure-to-require-60-for-ohio-constitutional-amendments-gets-first-hearing/">changes to amendment rules</a> to make it more difficult for amendments to get approved. </p>
<p>Both developments are proof that supporters as well as opponents of abortion rights see citizen-drafted amendments as an increasingly important abortion battleground of the future.</p><img src="https://counter.theconversation.com/content/203394/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Dinan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Since the Supreme Court overturned Roe v. Wade, most abortion policy has been settled by states. Now, citizen-crafted constitutional amendments may be the abortion battleground of the future.John Dinan, Professor of Politics and International Affairs, Wake Forest UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1444542020-08-27T12:20:51Z2020-08-27T12:20:51ZAbolishing child labor took the specter of ‘white slavery’ and the job market’s near collapse during the Great Depression<figure><img src="https://images.theconversation.com/files/353775/original/file-20200820-16-1u0kl3z.jpg?ixlib=rb-1.1.0&rect=26%2C0%2C996%2C634&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">These boys working in a Georgia cotton mill were photographed in 1909. </span> <span class="attribution"><a class="source" href="https://www.loc.gov/pictures/item/2018674998">Lewis Hine/The National Child Labor Committee Collection via Library of Congress</a></span></figcaption></figure><p>Today, <a href="https://www.dol.gov/general/topic/youthlabor/agerequirements">U.S. laws and regulations bar kids</a> under the age of 14 from working in most industries. Children under 17 may not work more than three hours on school days, for example.</p>
<p>Ever wonder where these rules came from?</p>
<p>While <a href="https://scholar.google.com/citations?hl=en&user=q7nIrq8AAAAJ">studying this issue for more than a decade</a>, I’ve learned that very few Americans thought there was anything wrong with child labor before the Civil War. <a href="https://mcfarlandbooks.com/product/child-labor-in-america/">Most kids under age 15 worked</a> up to 14 hours a day, either alongside their parents or for an employer – unless they were rich. In that case, other children worked for their families. </p>
<p>Enslaved children typically began working alongside their mothers in the fields at a very young age. They also did housework, hauled water and took care of animals. Not only were these enslaved people unpaid “child laborers”; the law cast them as <a href="https://iupress.org/9780253222640/stolen-childhood-second-edition">property subject to the threat of sale</a>.</p>
<p>After emancipation, the question of whether to outlaw child labor was hotly contested for more than 80 years. Northern reformers who sought abolition <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">squared off against their Southern opponents</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Black sharecroppers, picking cotton in Texas" src="https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=627&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=627&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=627&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=788&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=788&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354460/original/file-20200824-14-1kuf4ir.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=788&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Even after emancipation, Black children would toil all day long in the fields.</span>
<span class="attribution"><a class="source" href="https://www.thestoryoftexas.com/discover/campfire-stories/african-americans">Briscoe Center for American History, University of Texas at Austin</a></span>
</figcaption>
</figure>
<h2>Early laws only regulated child labor</h2>
<p>As I explain in <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">my new book on the topic</a>, it took the Great Depression to reserve full-time employment for adults.</p>
<p>After the Civil War officially ended child slavery, most Americans still did not think there was anything wrong with children earning their keep, as long as working kids could <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">get at least a rudimentary education</a>. While some states such as Massachusetts had child labor laws on the books, those measures only regulated employment. Children could be limited to working <a href="https://www.jstor.org/stable/pdf/1010335.pdf">as many as 10 hours daily</a>.</p>
<p>By the 1870s, unions condemned child labor on the basis that overly young workers competed for jobs, making it harder for adults to <a href="https://www.routledge.com/The-World-of-Child-Labor-An-Historical-and-Regional-Survey/Hindman-Hindman/p/book/9780765617071">obtain higher pay and better conditions</a> – not due to concerns about the well-being of kids.</p>
<p>The government first gathered data on child labor, which was defined at the time as the <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">gainful employment of children under the age of 15</a>, in 1870. That year’s census counted 750,000 employed children – 1 in 8 American kids. It was a low estimate that excluded children working for their families.</p>
<p>The 1900 census found that more than 1 in 5 children worked. Reformers believed the real rate was even higher.</p>
<h2>Lax Southern regulations</h2>
<p>Some companies, meanwhile, were moving production to Southern states like North Carolina, South Carolina, Georgia and Alabama to take advantage of their <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">lax regulations</a>. Cotton milling quickly became one of the nation’s <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">most child-labor-intensive industries</a>, along with coal mining.</p>
<p>By 1900, a <a href="https://www.bls.gov/opub/mlr/2017/article/history-of-child-labor-in-the-united-states-part-1.htm">quarter of the South’s nearly 100,000 textile workers</a> were under 16. Northern reformers were calling for change.
They objected not because they considered child labor a form of child abuse but rather because <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">these little workers were white</a>.</p>
<p>The image of pale, shrunken-faced, debilitated poor white boys and girls in Southern textile mills was sensationalized in the North as “<a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">white child slavery</a>.” Once the issue became a national obsession, activists formed the
<a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">National Child Labor Committee in 1904</a> to “change the public conscience” on this issue.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Girl working in box factory in 1909" src="https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354463/original/file-20200824-20-glk0sx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Little girls and boys often worked long days in factories, alongside adults.</span>
<span class="attribution"><a class="source" href="https://catalog.archives.gov/id/523064">Lewis Hine/Department of Commerce and Labor's Children's Bureau</a></span>
</figcaption>
</figure>
<h2>A culture war</h2>
<p>Southern industrialists resisted regulations, insisting that they were uplifting poor whites. They denounced child labor reform as “<a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">aggressive Northern interference</a>.”</p>
<p>Despite Southern opposition, reformers argued that state-level regulations were rife with loopholes and difficult to enforce. In 23 states, for instance, there was <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">no official way to determine children’s ages</a>. Additionally, many states allowed <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">poor children to work out of “necessity</a>.”</p>
<p>The committee first pushed to outlaw child labor in 1906 on the grounds that it weakened the white race and, therefore, interfered with U.S. plans for global dominance.</p>
<p>Named after Sen. Albert Beveridge of Indiana, the Beveridge bill sought to use the commerce clause of the U.S. Constitution to ban the <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">interstate shipment of products made by child labor</a>. Southern opponents defeated it.</p>
<p>In 1913, the minister <a href="https://timesmachine.nytimes.com/timesmachine/1961/06/30/118915298.html?pageNumber=27">Owen Lovejoy</a> brought new religious allies to the committee, which by then focused on the <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">sinfulness of child labor</a> in America.</p>
<p>In 1916, they got Congress to pass the the <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=59">first federal child labor law</a>. Like the Beveridge bill, the new law prohibited shipping products made with child labor across state lines. </p>
<p>However, a North Carolina mill worker, Roland Dagenhart, challenged the measure in court on the grounds that it violated his right to have his sons employed. The case wound up before the <a href="https://supreme.justia.com/cases/federal/us/247/251/">Supreme Court, which ruled in Dagenhart’s favor in 1918</a>.</p>
<p>Reformers would try again, this time using the federal taxing power to tax the products of child labor, but the Supreme Court would strike down that law – also challenged in court by a Southern mill worker – <a href="https://supreme.justia.com/cases/federal/us/259/20/">as unconstitutional in 1922</a>.</p>
<p>The showdown came in the 1920s. Fed up with the Supreme Court for repeatedly overturning child labor laws, Northern reformers tried to amend the U.S. Constitution. Prohibition had recently secured the 18th Amendment, and women had just gained suffrage through the 19th Amendment.</p>
<p>Many observers wrongly predicted that a child labor Amendment would <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">become the 20th amendment</a>.</p>
<p>U.S. culture was changing at the time. Americans were beginning to consider <a href="https://theconversation.com/teen-boys-will-be-boys-a-brief-history-103970">adolescence as a separate developmental stage</a> between <a href="https://massculturalcouncil.org/creative-youth-development/boston-youth-arts-evaluation-project/brief-history-of-adolescence-youth-development/">childhood and adulthood</a>. Likewise, the <a href="https://www.oyez.org/cases/1900-1940/268us510">education of children through high school</a> was <a href="https://nces.ed.gov/programs/statereform/tab5_1.asp">gradually becoming mandatory</a>. </p>
<h2>Small farmhands</h2>
<p>And yet those expectations didn’t materialize, due to a <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">rural backlash</a>.</p>
<p>Back then, most family farms relied on their own children’s labor. Many other children were hired as farmhands or “helpers” in <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">seasonal agriculture</a>. A 1922 <a href="https://catalog.hathitrust.org/Record/000932806">study of seasonal demand for farm labor</a> in Virginia, Maryland and New Jersey found that three-fifths of white children and nearly three-fourths of black children were working before the age of 10.</p>
<p>Southern industrialists seized the moment, warning thousands of farm families of a government takeover of their farms. A collective uprising against a child labor constitutional amendment became yet another culture war, this time between rural and urban communities.</p>
<p>Reformers panicked, buying radio spots and distributing pamphlets backing off the notion that they wanted to interfere with family farms. The movement to pass a <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">child labor amendment fizzled by 1925</a>.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Wanted: Small boys sign in Manhattan in the early 20th century." src="https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=459&fit=crop&dpr=1 600w, https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=459&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=459&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=577&fit=crop&dpr=1 754w, https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=577&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/354458/original/file-20200824-14-1lr0124.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=577&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Factory employers would seek out children for jobs where little fingers would come in handy.</span>
<span class="attribution"><a class="source" href="https://www.loc.gov/resource/nclc.04997/">Lewis Hine/National Child Labor Committee collection via Library of Congress</a></span>
</figcaption>
</figure>
<h2>Labor markets</h2>
<p>It took the <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">Great Depression</a> to resolve the debate over child labor.</p>
<p>Both Southerners and Northerners embraced an argument that union organizers had been making for decades and agreed that all available jobs in the nation should go to adult workers rather than children.</p>
<p>[<em>Understand new developments in science, health and technology, each week.</em> <a href="https://theconversation.com/us/newsletters/science-editors-picks-71/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=science-understand">Subscribe to The Conversation’s science newsletter</a>.]</p>
<p>Subsequently, President Franklin D. Roosevelt’s New Deal included the <a href="https://www.press.uillinois.edu/books/catalog/43csw7rr9780252043444.html">first federal child labor law not to be overturned by the Supreme Court</a>. This 1938 law included provisions banning child labor under age 14 in most industries while exempting “children under 16 employed in agriculture” and “children working for their parents” in most occupations. </p>
<p>Today, FDR’s <a href="https://www.dol.gov/agencies/whd/flsa">measure is still the basis of child labor laws in America</a>. It was a major victory, to be sure. But its <a href="https://www.apmreports.org/episode/2019/08/14/the-children-in-the-fields">limitations reflect the mixed legacy</a> of the movement to abolish child labor.</p><img src="https://counter.theconversation.com/content/144454/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Betsy Wood has received funding from the Andrew W. Mellon Foundation. </span></em></p>More than a fifth of US children were working in 1900, and many Americans saw nothing wrong with that. It took decades of activism and court battles plus economic upheaval to change course.Betsy Wood, Instructor of American History, Hudson County Community CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1011292018-08-09T13:29:16Z2018-08-09T13:29:16ZSouth Africans differ on land reform. But there needs to be a meeting of minds<figure><img src="https://images.theconversation.com/files/230879/original/file-20180807-191041-17wtizn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African land reform debates reflect a tricky balance of power post Jacob Zuma's rule.</span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>President Cyril Ramaphosa’s late night <a href="https://probonomatters.co.za/2018/08/ramaphosa-our-people-want-the-constitution-be-more-explicit-about-expropriation-of-land-without-compensation/">announcement</a> that the government was going to push ahead with implementing a <a href="https://theconversation.com/changes-to-the-constitution-may-boost-not-weaken-south-african-property-rights-100979">decision</a> taken by the African National Congress (ANC) at its national conference last year to expropriate land without compensation has set the cat among the pigeons. </p>
<p>Speculation is widespread that Ramaphosa gave in to the land expropriation without compensation proposition to <a href="https://www.businesslive.co.za/bd/national/2018-08-02-anc-aims-for-explicit-clarity-in-land-law/">appease a faction</a> of former president Jacob Zuma which has positioned itself as a champion of <a href="https://www.ujuh.co.za/zuma-what-do-we-mean-by-radical-socio-economic-transformation/">“radical economic transformation”</a>. </p>
<p>There is also the view that Ramaphosa is out to promote <a href="https://theconversation.com/changes-to-the-constitution-may-boost-not-weaken-south-african-property-rights-100979">party unity</a> and to outflank the <a href="https://www.news24.com/Columnists/Mpumelelo_Mkhabela/battle-for-rural-votes-is-turning-land-process-into-a-tragicomedy-20180709">Economic Freedom Fighters</a>, to the party’s left, in the buildup to the 2019 general election. </p>
<p>All this appears fair comment, and is no way unduly cynical. Politicians say things, whether or not it is entirely wise to say them, to get votes.</p>
<p>Yet the land debate is about much more than party politicking. In many ways, it goes to the heart of South Africa’s post-colonial politics. It speaks to fundamental racial chasms. This points to the very real danger that the different terms on which the land issue is debated simply don’t address each other.</p>
<p>It would seem to me that there are three broad approaches to which the land issue is debated – the instrumental, the functionalist and the symbolic. </p>
<p>All three approaches have a number of things in common. They all recognise the dangers inherent in the grossly disproportionate amount of land owned by whites, they accept that this has arisen out of the injustices of the colonial past, and agree that it needs to be addressed for reasons of both social justice and political stability. </p>
<p>Beyond that there tends to be disagreement about ways, means and the urgency of land reform. </p>
<p>It’s important to understand these different approaches and how they relate to the ANC’s proposed implementation of land expropriation without compensation. It’s particularly important for people who hold these different viewpoints to understand and find one another. South Africans can’t afford to let the land debate be reduced to a shouting match.</p>
<h2>The instrumental approach</h2>
<p>This argues its case upon both ideological and constitutional grounds.</p>
<p>There is the argument that the ANC’s move represents a fundamental undermining of property rights, to the extent that it might even <a href="http://www.freemarketfoundation.com/article-view/think-again-anc-members-before-you-give-up-your-secure-property-rights-protection!-">threaten</a> the ownership rights of ordinary house-owners in urban areas. As such, it constitutes a major disincentive to investment and totally contradicts Ramaphosa’s highly-touted goal of attracting <a href="https://www.reuters.com/article/us-safrica-ramaphosa/ramaphosa-team-to-seek-8-billion-investment-for-south-africa-idUSKBN1HN2JR">USD$100 billion</a> in investment over the next five years. </p>
<p>Furthermore, because of the threat to security it involves, the move will serve as major discouragement to commercial farmers, who are unlikely to pour money into infrastructural improvements if they fear being expropriated. As such expropriation without compensation is a major threat to both jobs and economic growth. </p>
<p>The property rights argument is backed up by those who posit that the considered constitutional amendment is unnecessary because the constitution already allows for the expropriation of property by the state for public interest purposes.</p>
<p>This, the constitutionalists argue, gives the state all the armoury it needs to pursue land reform with urgent speed without threatening property rights.</p>
<h2>The functionalist approach</h2>
<p>This says that there is a desperate hunger for land among impoverished black poor. This needs to be addressed on grounds of need and political stability.</p>
<p>Economically, the argument is that, while the role of commercial agriculture as the principal producer of the nation’s food supply and of significant exports need to be recognised, there are many areas where farming could be successfully undertaken by black farmers, given the right support. This perspective is steeped in history. It points out how white commercial agriculture was systematically advantaged by the state under white rule, and how prosperous black peasant communities, whose competitiveness constituted a threat to white farmers, were dispossessed. </p>
<p>It’s argued that there is much land available in South Africa which could valuably be transferred into private or communal black hands. Such land includes property owned by the state, land held by speculators, and farms which over the last two decades have shed most of their workers as they have turned over from direct food production to become game farms.</p>
<h2>The symbolic approach</h2>
<p>This angle to the debate appeals to the heart as much to the head. It harps on the point that land belongs to Africans. It was stolen by the colonialists and should be given back.</p>
<p>The symbolic approach is overwhelmingly about African dignity. As such, it often involves notions of reparations. It tends to brush aside all the difficult policy issues about how land transfer should be managed, let alone the injustices which may be heaped upon white landowners who had nothing to do with the original theft of African land.</p>
<h2>Meeting of minds</h2>
<p>Ramaphosa is well known for playing the long game, a pragmatist who is ready to bend to political pressures to achieve his long-term objectives. </p>
<p>It may well be that he will bow to the ANC imperative to pass a law allowing for expropriation without compensation. But he will want to make sure that it will pass constitutional muster. He will ensure that this amendment meets the requirements of the property clause in the constitution.</p>
<p>From this perspective, it’s tempting to conclude that the huffing and puffing about the ANC’s pursuit of expropriation without compensation is really about nothing. But that’s not the case. The Zimbabwean experience confirms this.</p>
<p>It was the Zimbabwean government’s lack of urgency about land reform in the first decades of independence which provided the backdrop to the war veterans’ seizure of white farms in the late 1990s. It was then that the Robert Mugabe government stepped in to give the land seizures legitimacy and to claim the credit.</p>
<p>Much controversy attends the <a href="https://theconversation.com/settling-the-land-compensation-issue-is-vital-for-zimbabwes-economy-89384">land question in Zimbabwe</a> to this day. Certainly, the post-2000 land reforms have not been a total failure. Nonetheless, what is beyond dispute is that the way they have been carried out has come at enormous cost to overall agricultural production. As such, the Zimbabwe mode of land reform is one South Africa cannot afford to adopt – or to be bundled into by a panic-stricken government scrambling to keep up with events on the ground.</p>
<p>The address of the land issue requires a meeting of minds. The instrumental, functionalist and symbolic approaches all have their important role to play, and humility and willingness to listen to competing perspectives should be at a premium.</p><img src="https://counter.theconversation.com/content/101129/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall receives funding from the National Research Foundation </span></em></p>South Africans can’t afford to let the land debate be reduced to a shouting match.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1010442018-08-03T11:06:55Z2018-08-03T11:06:55ZExplainer: what’s involved in changing South Africa’s Constitution<figure><img src="https://images.theconversation.com/files/230553/original/file-20180803-41360-jd741k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A member of South Africa's Economic Freedom Fighters party with a copy of the Constitution.</span> <span class="attribution"><span class="source">EPA/Kim Ludbrook</span></span></figcaption></figure><p>South African President Cyril Ramaphosa, in his capacity as leader of the governing African National Congress (ANC), has <a href="https://www.news24.com/Columnists/GuestColumn/read-president-cyril-ramaphosas-full-speech-here-20180731">announced</a> that his party will spearhead an amendment to <a href="https://constitutionallyspeaking.co.za/on-the-right-to-property/">section 25 of the country’s Constitution</a> to</p>
<blockquote>
<p>outline more clearly the conditions under which expropriation of land without compensation can be effected.</p>
</blockquote>
<p>He emphasised that the property clause in the Constitution already enables <a href="https://www.news24.com/SouthAfrica/News/breaking-national-assembly-adopts-motion-on-land-expropriation-without-compensation-20180227">expropriation of land</a> without compensation in the <a href="https://www.news24.com/Columnists/GuestColumn/read-president-cyril-ramaphosas-full-speech-here-20180731">public interest</a>. The proposed amendment would be aimed at putting this beyond any doubt. </p>
<p>But what is the process that would have to be followed for such an amendment to be passed?</p>
<p>Like all modern constitutions, the <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996">South African Constitution</a> provides for its own amendment by Parliament and prescribes special procedures to effect them. The Constitution has already been <a href="https://www.gov.za/documents/constitution-republic-south-africa-1996">amended 17 times</a> since it came into force in 1996, following this prescribed procedure.</p>
<p>The procedure for amending the Constitution differs from the procedure to pass or amend ordinary legislation. It is more difficult to amend the Constitution than it is to pass or amend ordinary laws. This is because the Constitution is the <a href="https://www.gov.za/documents/constitution/constitution-republic-south-africa-1996-1">supreme law</a> of the Republic. </p>
<p>Section 74(2) of the Constitution allows Parliament to amend any provision in the Bill of Rights – including section 25. But this cannot be done by a simple majority vote as would be the case for ordinary legislation. A Bill amending any provision of the Bill of Rights must be passed by the National Assembly, with a supporting vote of at least two thirds of its members, and by the National Council of Provinces, with a supporting vote of at least six of the nine provincial delegations.</p>
<p>This means that at least 266 members of the national assembly must support the amendment. The additional requirement that six of the provincial delegations in the National Council of Provinces must support the Bill in effect means that the party – or parties – wishing to amend the Constitution must control at least six of the nine provincial legislatures. This is because provincial legislatures give each provincial delegation to the National Council of Provinces a mandate on how to vote on constitutional amendments.</p>
<h2>The process</h2>
<p>Some <a href="https://www.fin24.com/Opinion/expropriation-without-compensation-an-unruly-horse-20180103">commentators</a> have argued that an amendment to section 25 of the Constitution would have to be supported by at least 75% of the members of the National Assembly. </p>
<p>But this is incorrect, and confuses two things. It’s true that the founding values in the Constitution – set out in section 1 – can only be amended with a supporting vote of 75% of the members of the Assembly. But, as long as an amendment doesn’t affect the values in section 1 (specifically the Rule of Law) by allowing the arbitrary expropriation of property, a 75% majority wouldn’t be required.</p>
<p>Apart from the increased majorities required to pass an amendment to section 25, the Constitution also prescribes other procedures that must be followed for an amendment.</p>
<p>A Bill amending the Constitution can’t include provisions other than constitutional amendments and matters connected with the amendments. This means a constitutional amendment may not be included in another Bill dealing with other matters to secure its passage. For example, a constitutional amendment can’t be attached to the budget in the hope that MPs will be forced to pass it in order to pass the budget.</p>
<p>The next step to effect an amendment of section 25 would be for the government to formulate the text of the Bill proposing the amendment. At least 30 days before such a Bill is introduced in Parliament, the government is required to publish in the national Government Gazette details about the proposed amendment for public comment. This would include the text of the amendment and the motivation for it.</p>
<p>At the same time these details must also be submitted to the provincial legislatures to get its views. Only after this 30 day period can the Bill be formally tabled in the National Assembly. When it’s introduced in the assembly, the government must also submit any written comments from the public and the provincial legislatures to the Speaker for tabling in the assembly. These must also be tabled to the chairperson of the National Council of Provinces.</p>
<h2>Public involvement</h2>
<p>Sections 59 and 72 also require the National Assembly and National Council of Provinces to </p>
<blockquote>
<p>facilitate public involvement in the legislative and other processes of the National Assembly and its committees. </p>
</blockquote>
<p>The <a href="http://www.saflii.org/za/cases/ZACC/2006/11.html">Constitutional Court held</a> that this imposed a duty on the assembly and the National Council of Provinces to act reasonably in ensuring the voices of ordinary people are heard before passing legislation. </p>
<p>The more important the Bill, and the greater the public interest, the more onerous the obligation to facilitate public involvement. The <a href="https://www.parliament.gov.za/house-rules">rules</a> of the National Assembly and National Council of Provinces already provide for this and will therefore have to be followed. </p>
<p>This process could take some time to conclude as it can be time consuming to ensure extensive public involvement in the process.</p>
<p>Section 74(7) also says that a Bill amending the Constitution may only be put to the vote in the National Assembly after at least 30 days have elapsed since its introduction, if the National Assembly is sitting when the Bill is introduced; or after at least 30 days after its tabling if the National Assembly is in recess when the Bill is introduced.</p>
<p>Once the Bill amending the Constitution has been through all these steps, it’s then referred to the President for signing into law.</p>
<h2>Legal challenge</h2>
<p>An important caveat is that an amendment to the Constitution passed in this way can’t be challenged on the basis that the amendment itself is unconstitutional. This was made clear by the Constitutional Court <a href="http://www.saflii.org/za/cases/ZACC/2002/21">in 2002</a>, when it stated:</p>
<blockquote>
<p>Amendments to the Constitution passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.</p>
</blockquote><img src="https://counter.theconversation.com/content/101044/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pierre de Vos does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s constitution has been amended 17 times already. But, the procedure for doing so is onerous.Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/879012017-12-01T01:26:39Z2017-12-01T01:26:39ZCould the ERA pass in the #Metoo era?<figure><img src="https://images.theconversation.com/files/197221/original/file-20171130-30931-ngdxw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">'Fearless Girl' dons a pink hat on March 8, 2017, on Wall Street in New York. An inscription at the base reads, 'Know the power of women in leadership. She makes a difference.'</span> <span class="attribution"><span class="source">AP Photo/Mark Lennihan</span></span></figcaption></figure><p>Eighty percent of people polled in 2016 think that the United States Constitution <a href="http://www.eracoalition.org/files/ERAPollingPressRelease.pdf">already has an amendment</a> protecting equal rights for women. When they learn otherwise, more than <a href="https://www.dailykos.com/stories/2012/4/24/1086021/-Daily-Kos-SEIU-poll-Huge-majority-of-Americans-support-equal-rights-for-women-in-Constitution">90 percent support an ERA.</a> </p>
<p>As a historian who studies <a href="http://www.worldcat.org/oclc/881139421">women in the modern U.S.</a>, I wondered, what does this mean about the future of the ERA? More specifically, what does it mean in a country that recently elected a president who lacked political experience and <a href="http://www.cnn.com/2017/11/28/politics/donald-trump-access-hollywood-analysis/index.html">boasted about sexually assaulting women</a> during a campaign that vilified the accomplished female candidate in the tired sexist language of yesteryear? In the words of her opponent, “<a href="https://www.youtube.com/watch?v=33O7jg50FjE">She doesn’t have the look. She doesn’t have the stamina.”</a> Other detractors simply called her a <a href="https://www.sacurrent.com/the-daily/archives/2016/11/01/sid-miller-called-hillary-clinton-a-cunt-are-we-supposed-to-be-surprised">“c—,”</a> but spelled it out. </p>
<p>Could this political climate possibly give rise to an Equal Rights Amendment? </p>
<h2>Arguments don’t last forever</h2>
<p>To be clear, the overwhelming support pollsters have charted for an ERA is probably less a message of support for feminist legislation than it is a revelation about the disappearance of age-old arguments against it. More specifically, women have lost – or are in the process of losing – the very “privileges” that were invoked to defeat the ERA in the 1970s and 1980s.</p>
<p>A <a href="https://learning.blogs.nytimes.com/2012/03/22/march-22-1972-equal-right-amendment-for-women-passed-by-congress/">quick history</a>: In 1972, both houses of Congress approved the Equal Rights Amendment and sent it to the states for ratification. Within one year, 30 of the 38 states needed had ratified the ERA. Success seemed right around the corner.</p>
<p>Until it didn’t. Backlash against early feminist triumphs mobilized quickly. Interests as diverse as <a href="http://www.worldcat.org/oclc/707188729">Coors Brewing Company</a>, the <a href="https://press.princeton.edu/titles/8012.html">Mormon Church and evangelical Christians</a> opposed the ERA. Attorney and activist Phyllis Schlafly mobilized opponents into a STOP ERA movement. Schlafly cast the ERA as a false god of “rights” that would erode American women’s unparalleled “privileges.” More specifically and damningly, she warned that the ERA would:</p>
<ul>
<li><p>deprive mothers of their children in cases of divorce</p></li>
<li><p>legalize “homosexual marriage”</p></li>
<li><p>eliminate women’s restrooms and other sex-segregated public facilities</p></li>
<li><p>draft women into military combat</p></li>
</ul>
<p>This was fearmongering at its best – or worst. Many, if not most, American women in the 1970s found the idea of any of these possibilities – let alone all of them – terrifying. <a href="https://www.bloomsbury.com/us/divided-we-stand-9781632863140/">Schlafly used these fears</a> to turn women against the ERA. </p>
<p>By 1982, the ERA was dead. At one point, it was just three states short of ratification. Later, four states made a legally questionable attempt to “rescind” their earlier vote to ratify before an extended deadline slipped by.</p>
<p>Fast forward to 2017. Not only has <a href="http://www.economist.com/news/obituary/21707169-firebrand-critic-american-feminism-was-92-obituary-phyllis-schlafly-died-september">Phyllis Schlafly died</a>, but the threats that helped defeat the ERA have been nearly completely realized – but they have been realized without, not because of, an ERA.</p>
<p>In cases of divorce, mothers no longer receive preference in determining custody. Indeed, in most states, divorced mothers lose partial custody of their children to <a href="https://www.childwelfare.gov/pubPDFs/best_interest.pdf">joint custody arrangements.</a> What inspired this new approach? Not equality concerns but “the best interest of the child” – a phrase that dates back to the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx">1989 United Nations Convention on the Rights of the Child</a>. The U.S. has signed, but not ratified, this document. Even so, the language and orientation of “the best interest of the child” has now permeated American child custody law where it reduces, in most cases, a mother’s custody rights.</p>
<p>“Homosexual marriage” is also now the law of the land, thanks to the 2015 Supreme Court case, <a href="https://www.oyez.org/cases/2014/14-556">Obergefell v. Hodges</a>. The court’s reasoning had nothing to do with sex equality but everything to do with individual rights, the importance of marriage to our “social order” and the best interests of children.</p>
<p>Women’s restrooms are also on their way out. While transgender activists fight in the nation’s <a href="http://www.ncsl.org/research/education/-bathroom-bill-legislative-tracking635951130.aspx">legislatures</a> and <a href="https://www.npr.org/sections/thetwo-way/2017/03/06/518795387/supreme-court-wont-hear-transgender-teens-challenge-to-bathroom-policy">courts</a> for access to women-only restrooms, fitting rooms and locker rooms, society has begun to adapt. Many public spaces – from restaurants and Target to museums and university campuses – now offer gender-neutral restrooms or explicitly invite patrons to choose a restroom based on their gender identity rather than their sex.</p>
<p>Finally, the big bugaboo of drafting women into the military is also on the horizon. Not only did individual candidates for the <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/02/07/should-women-be-drafted-its-a-question-that-finally-joined-the-presidential-debate/?utm_term=.394f394075d4">2016 Republican nomination support requiring women</a> to register for the Selective Service, but a majority of Republicans and Democrats in Congress also support it. Indeed, the U.S. Congress appointed a Military Commission on Military, National, and Public Service to study the issue in preparation for a <a href="https://www.nationalservice.gov/build-your-capacity/grantee-communication-center/announcing-national-commission-military-national">2018 or 2019 vote.</a> Trump explicitly <a href="https://fas.org/man/eprint/selective.pdf">instructed</a> the commission to examine the possibility of extending mandatory registration to women. Considerations of sex equality seem unlikely to be driving Republican interest in requiring women to join men in <a href="https://www.sss.gov/Home/Registration">registering for the Selective Service.</a> More likely the appeal lies in the possibilities a gender-neutral draft offers for expanding the military and mobilizing for war, should the draft ever come back into use.</p>
<p>This is a profoundly important moment in women’s history. The major arguments that defeated the ERA are no longer relevant. The “privileges” that inequality purportedly provided women are no more.</p>
<p>But do American women still need an ERA? In my opinion, yes. Today, threats to women’s equality are, in many ways, greater than ever as women confront ongoing and perhaps even increased sexual harassment and assaults on their bodies and rights. An ERA could establish a constitutional foundation for challenging discrimination that threatens women’s health, safety and very lives. Moreover, an ERA would require that courts evaluate sex discrimination using the same high level of scrutiny that <a href="http://thenewpress.com/books/equal-means-equal">they apply to race discrimination cases.</a></p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=395&fit=crop&dpr=1 600w, https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=395&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=395&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=497&fit=crop&dpr=1 754w, https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=497&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/197223/original/file-20171130-30937-93hr10.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=497&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Hazel Hunkines Hallinnan, one of the original suffragists, fans herself after marching in support of the ERA in 1977.</span>
<span class="attribution"><span class="source">AP photo</span></span>
</figcaption>
</figure>
<p>The good news is that this Trump moment could present a tipping point.</p>
<p>Just last spring, <a href="https://www.npr.org/sections/thetwo-way/2017/03/21/520962541/nevada-on-cusp-of-ratifying-equal-rights-amendment-35-years-after-deadline">Nevada ratified the ERA</a>. Belated ratification carries dubious legal weight, but it certainly indicates revived interest. States, including <a href="https://www.usnews.com/news/best-states/new-york/articles/2017-05-17/push-is-on-for-equal-rights-amendment-in-new-york-state">New York</a>, are addressing the new threats to women’s rights by gearing up to pass their own ERAs. Several Democrats in Congress seem to agree that the time <a href="https://maloney.house.gov/media-center/in-the-news/me-too-movement-renews-equal-rights-amendment-push">might be ripe for the ERA.</a> Indeed, the unprecedented mobilization of women we saw in the worldwide women’s marches last January might yet culminate in a sea change for women’s equality, one no one could have predicted on Nov. 8, 2016. Americans might, finally, write into the U.S. Constitution the 170-year-old declaration by reformers at Seneca Falls that “all men and women are created equal.”</p><img src="https://counter.theconversation.com/content/87901/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Leigh Ann Wheeler does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A huge majority of Americans support equal rights for women. Is now the right time to get an amendment passed?Leigh Ann Wheeler, Professor of History, Binghamton University, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/622632016-07-28T00:12:44Z2016-07-28T00:12:44ZHow black grassroots politics led to the 14th Amendment and black citizenship<figure><img src="https://images.theconversation.com/files/132274/original/image-20160727-21595-1xzjw27.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Blacks faced violent attacks led by white Confederates after the Civil War ended.</span> <span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Freedmen%27s_Schoolhouse_Burns_in_1866_Memphis_Riot.jpg">Wikimedia Commons</a></span></figcaption></figure><p>In 2008, the United States elected its first African-American president. But in the last year of Obama’s final term, the paradox and tragedy of race is as apparent now as any time in recent American history. A poll released earlier this month indicates a <a href="https://www.washingtonpost.com/national/more-than-6-in-10-adults-say-us-race-relations-are-generally-bad-poll-indicates/2016/07/16/66548936-4aa8-11e6-90a8-fb84201e0645_story.html">growing pessimism</a> about race relations in the U.S., an attitude triggered by the deaths of black people at the hands of law enforcement officers and subsequent attacks on police in Baton Rouge and Dallas. </p>
<p>As the nation seeks to understand the recent violence, and as the <a href="http://www.truth-out.org/news/item/35103-achieving-black-liberation-a-conversation-with-keeanga-yamahtta-taylor">Black Lives Matter Movement</a> claims the mantle of black leadership, now is an important time to remember an earlier period of race-based violence and civil rights struggles.</p>
<h2>150 years of black ‘citizenship’</h2>
<p>A critical period in the history of civil rights in the United States began 150 years ago and led to the ratification of the 14th Amendment to the Constitution in 1868. For nearly a century after, the federal government failed to enforce the 14th Amendment’s provisions. Yet, the 14th Amendment is arguably <a href="http://www.harpercollins.com/9780062354518/reconstruction-updated-edition">the Constitution’s most important</a> because it defined the meaning of citizenship and established the rights of citizens to “due process of law” and “equal protection of the laws.”</p>
<p>The 14th Amendment was the result of local struggles and national debates on the political status of African-Americans in the wake of slavery and the Civil War. The 600,000 people sacrificed during the Civil War, and the 13th Amendment that abolished slavery, were not enough to guarantee equal treatment and protection of African-Americans by local governments.</p>
<p>In late 1865, a U.S. military official filed a report that made it into the hands of congressional leadership. The report highlighted how the state of Mississippi had enacted laws limiting the rights of freedmen and women. In the report, submitted on Nov. 28, Lieutenant Eldridge wrote that a Mississippi law barred African-Americans from leasing land, “testifying in cases of whites,” “doing any independent business” and appealing court cases past the county level.</p>
<p>The Mississippi law did give African-Americans the right to marry, to sue and to own property. But the ultimate goal of the state’s “Black Codes” and those passed in other states like Alabama and South Carolina was to limit the movement and gain control over the labor of freedmen and women. In the state of Mississippi and in other southern states, black and white people were to live under different laws.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=906&fit=crop&dpr=1 600w, https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=906&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=906&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1139&fit=crop&dpr=1 754w, https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1139&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/132261/original/image-20160727-21584-h4f8t3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1139&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Senator Lyman Trumbull from Illinois.</span>
<span class="attribution"><a class="source" href="https://upload.wikimedia.org/wikipedia/commons/0/05/Lyman_Trumbull.jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>With the failure of white Southerners to recognize African-Americans as citizens, Senator Lyman Trumbull of Illinois led a congressional response and wrote the <a href="http://www.pbs.org/wgbh/amex/reconstruction/activism/ps_1866.html">Civil Rights Bill</a>. It passed Congress but was vetoed by President Andrew Johnson. Congress mustered the votes to override the veto and passed the bill into law in April of 1866. Its principal objective was to make explicit the citizenship rights of African-Americans, and in effect prevent racial discrimination. More specifically, the law guaranteed black people protection by the government.</p>
<p>In a message <a href="https://auctr.worldcat.org/title/speech-of-hon-lyman-trumbull-of-illinois-on-the-civil-rights-veto-message-delivered-in-the-senate-of-the-united-states-april-4-1866/oclc/11617583&referer=brief_results">delivered on April 4, 1866</a>, Trumbull responded to President Johnson’s veto message. Drawing on the ideas of political theorists and the opinion of military officials, Trumbull argued that the federal government was responsible for providing protection to all citizens regardless of race. The law, Trumbull argued, would make binding policies that had already been undertaken by the military in the post-Civil War South. </p>
<p>The United States military had filled the vacuum created by the collapse of the Confederacy. One of their <a href="http://www.kentuckypress.com/live/title_detail.php?titleid=2111#.V5ki5LgrJnw">roles</a> was to administer justice and adjudicate disputes. Within this context, Major General Sickles, based in South Carolina, ordered in late 1865 to early 1866 that the government’s role was to “secure the same equal justice and personal liberty to the freedmen as to other inhabitants.”</p>
<h2>Black grassroots politics and the contest for equal rights</h2>
<p>Leading up to the civil rights debate at the federal level, African-Americans in the <a href="http://www.cornellpress.cornell.edu/book/?GCOI=80140100315130">North</a> and <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674017658">South</a> organized grassroots movements to secure their rights as citizens.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=796&fit=crop&dpr=1 600w, https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=796&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=796&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1000&fit=crop&dpr=1 754w, https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1000&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/132273/original/image-20160727-21595-p51bpk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1000&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Pennsylvania Equal Rights League leader Octavius Catto.</span>
<span class="attribution"><a class="source" href="http://www.loc.gov/pictures/item/2008677286/">Library of Congress</a></span>
</figcaption>
</figure>
<p>For example, the <a href="http://www.jstor.org.ezproxy.auctr.edu:2051/stable/40543520?seq=1#page_scan_tab_contents">Pennsylvania Equal Rights League</a> emerged in the wake of the Civil War. Led by William Forten, Octavio Catto and other prominent black Philadelphians, they pressed the state legislature for black male voting rights and an end to segregation on Philadelphia’s streetcar lines.</p>
<p>African-Americans in the South held political conventions to define their new roles in the U.S. as citizens. Freedmen held a <a href="http://coloredconventions.org/items/show/524">convention in Augusta, Georgia, in January of 1866</a> to define what they meant by citizenship rights. They resolved they had the right to protection, to land, to serve on juries, to individual and collective property ownership, to pensions for military service and to universal male suffrage. This meeting also launched the Georgia Equal Rights Association to realize this vision.</p>
<p>Yet, the Civil War had not fully come to an end. Violence broke out in the streets of New Orleans and <a href="http://us.macmillan.com/amassacreinmemphis/stephenvash">Memphis</a>. As African-Americans flocked to Memphis looking for a refuge from rural poverty and exercising their new rights to move about freely, the white press of Memphis reacted by painting blacks as “lawless.” </p>
<p>The “<a href="http://us.macmillan.com/amassacreinmemphis/stephenvash">Massacre in Memphis</a>” erupted on May 1, 1866, leaving nearly 50 black people dead and another 70 to 80 wounded. White rioters went after black women in particular, perpetrating <a href="http://uncpress.unc.edu/browse/book_detail?title_id=1018">rape as a form of terror</a>. On July 30, mob violence led by Confederate veterans and the police in <a href="http://lsupress.org/books/detail/an-absolute-massacre/">New Orleans</a> left over 40 African-Americans dead. The 1866 massacres and Johnson’s earlier veto of the Civil Rights Bill pushed Congress to pass the 14th Amendment and send it to the states for ratification.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/132259/original/image-20160727-21587-13mks38.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">White Americans attacked black men and women in the Memphis Riot of 1866.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:Black_Americans_attacked_in_Memphis_Riot_of_1866.jpg">WikimediaCommons/Alfred Rudolph Waud</a></span>
</figcaption>
</figure>
<p>The process was not without its imperfections. Men and women, blacks and whites had joined common cause before the Civil War to promote women’s rights and an end to slavery. But throughout the push for civil rights in 1866, <a href="http://www.cornellpress.cornell.edu/book/?GCOI=80140100141100">rhetoric</a> used by politicians, military officials and equal rights organizations called for the rights of “men.” This would ultimately translate into a focus on black male suffrage, which was embedded in the 14th Amendment. The specific rights of women were put on hold.</p>
<p>As a result of this compromise, <a href="https://global.oup.com/academic/product/fighting-chance-9780199772636?cc=us&lang=en&">fissures grew</a> in the interracial coalition of men and women who had fought for equal rights before the war. The unraveling of this coalition was emblematic of a larger process.</p>
<p>Soon after, in the face of corruption scandals and an economic crisis, the federal government lost its will to defend African-Americans and failed to protect their civil rights. Through a long, complicated and contested process, white vigilante groups, local and state governments, and even the Supreme Court rolled back the political gains of the 1860s.</p>
<p>The political struggles of 1866, the ratification of the 14th Amendment and the aftermath demonstrate the intertwined nature of grassroots and national politics. It also shows how fragile political coalitions can be. Ultimately, it reveals that political progress is neither linear nor inevitable – that forces of reaction, regression and retrenchment meet every forward movement.</p><img src="https://counter.theconversation.com/content/62263/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frederick Knight does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The struggle for equal rights for black citizens in the U.S. today is backed by the promise of the 14th Amendment. A historian takes us back to the grassroots movements that led to its passage.Frederick Knight, Associate Professor of History, Morehouse CollegeLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/609712016-06-28T19:26:13Z2016-06-28T19:26:13ZNigeria’s constitution holds the key to protecting internally displaced people<figure><img src="https://images.theconversation.com/files/128044/original/image-20160624-28382-1n1tapr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Baby Lurky, whose family was displaced by Boko Haram in the northeast region of Nigeria, sleeps at a camp in Adamawa State. </span> <span class="attribution"><span class="source">Reuters/Afolabi Sotunde </span></span></figcaption></figure><p>The internal displacement of people has become a significant concern in Nigeria. More than <a href="http://www.tv360nigeria.com/people-displaced-boko-haram-now-2-17-million/">two million people</a> have fled their homes because of the <a href="https://africacheck.org/factsheets/factsheet-explaining-nigerias-boko-haram-and-its-violent-insurgency/">Boko Haram</a> insurgency in the northeast. Millions more have been displaced by other causes, including natural disasters and development projects.</p>
<p>The rise in the problem has led to calls for concrete <a href="http://opinion.premiumtimesng.com/2015/12/28/idps-in-nigeria-and-a-call-for-urgent-intervention-by-olawale-rotimi/">rights-based solutions</a> to protect and assist internally displaced persons. This is why the absence of a national legal framework for dealing with the crisis is receiving increased attention.</p>
<p>The problem of internal displacement is serious enough to require amendments to Nigeria’s constitution. The rising wave of displacements in the north has far-reaching implications for national political stability. Given that the constitution obliges the government to safeguard the welfare of all Nigerians, it becomes imperative that there be constitutional protection for displaced people. </p>
<p>There are existing trends for this argument. The <a href="http://www.icla.up.ac.za/images/constitutions/ethiopia_constitution.pdf">Ethiopian constitution</a> recognises the right of pastoralists not to be displaced. It further requires that displaced persons must be protected. The Colombian Constitutional Court in 2004 declared the situation of internal displacement in the country an
“<a href="http://www.brookings.edu/%7E/media/Projects/idp/Colombia_T-025_2004.pdf?la=en">unconstitutional state of affairs</a>”. This is despite the <a href="https://www.constituteproject.org/constitution/Colombia_2005.pdf">Colombian constitution</a> not having such explicit provision. </p>
<h2>The possible legal routes</h2>
<p>Nigeria is party to the African Union Convention for the Protection and Assistance of Internally Displaced Persons (<a href="http://www.unhcr.org/about-us/background/4ae9bede9/african-union-convention-protection-assistance-internally-displaced-persons.html">Kampala Convention</a>). Increased attention is therefore being put on the need for it to align its national legal system with the convention.</p>
<p>But so far the discourse on a national instrument for addressing the plight of displaced people has ignored the role played by the <a href="https://www.constituteproject.org/constitution/Nigeria_1999.pdf?lang=en">Nigerian constitution</a>. The constitution is significant in that, among other things, it sets policy objectives for the state and makes provision for fundamental human rights.</p>
<p>In the national hierarchy of norms, the constitution is regarded as the supreme law. Its essence, set out in the preamble, is the need to ensure the welfare of the Nigerian people.</p>
<p>In fostering this objective, the constitution highlights strategic policy areas that the government must give priority to. It further provides for fundamental human rights that must be respected, and for which redress may be sought if they are infringed.</p>
<p>One might argue that a reason for the omission of the role of the constitution in the protection of internally displaced persons lies in the rigidity of constitutional amendments. But recent history has shown that it is possible to amend the Nigerian constitution if necessary. </p>
<p>There are arguably two reasons to follow this route.</p>
<h2>The case for constitutional protection</h2>
<p>A constitutional entrenchment of protection will elevate the discussion on internal displacement from being just an altruistic, humanitarian concern to a constitutional issue. It will thus necessitate a systemic institutional response.</p>
<p>As the constitution is the epicentre for the formation and functioning of government, including protection for internally displaced persons, its provisions will serve as a strong basis for the various organs of state to act proactively.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/128045/original/image-20160624-28354-g8idh6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Evacuation of people displaced by Boko Haram in Nigeria.</span>
<span class="attribution"><span class="source">Reuters/Afolabi Sotunde</span></span>
</figcaption>
</figure>
<p>A constitutional entrenchment will further grant people a legitimate claim to protection against arbitrary state decisions that result in their displacement without recourse to international standards.</p>
<p>This is particularly relevant when people are forced to leave their homes to make way for development projects. Constitutional protection will give displaced people the opportunity to assert their rights to adequate protection against impoverishment from disruptions to their livelihoods.</p>
<p>But how should the constitutional protection be entrenched? </p>
<p>Two models are proposed. The first is an insertion of a clause in chapter II of the 1999 constitution. The second is an insertion of a specific right under chapter IV.</p>
<h2>Safeguarding displaced people</h2>
<p>Chapter II of the constitution (sections 13 to 24) provides for the Fundamental Objectives and Directive Principles of State Policy. The directive principles set out strategic policy direction for the state in the realisation of a democratic, just and egalitarian society. </p>
<p>The directive principles outline policy priorities in relation to economic, political, social and environmental concerns. In preserving social order, section 17 of the 1999 constitution mandates the state to direct its policy towards all citizens. In addition, it specifically recognises the need to protect children, young people and the elderly. </p>
<p>To this end, the state has developed national policies on children and young people. In 2001, a National Youth Policy was developed. The policy was revised in 2009. The aim of the policy was to enhance youth participation and foster youth development. In 2007, Nigeria developed a National Child Policy to promote engagement among stakeholders on child rights.</p>
<p>But a downside to entrenching protection for internally displaced persons in the directive principles is that its provisions are non-justiciable. As such, they cannot be legally asserted in a court of law. To circumvent this, an alternative proposition is to insert a specific right for protection of internally displaced persons under chapter IV of the constitution.</p>
<p>Chapter IV of the constitution (sections 33 to 46) provides for fundamental human rights. As rights contained in this chapter are enforceable, an insertion of a specific right will afford internally displaced persons a legitimate claim before national courts. </p>
<p>A sample provision that could be incorporated in this chapter is:</p>
<blockquote>
<p>every person shall have a right to be protected and assisted in situations of internal displacement.</p>
</blockquote>
<p>Clarification on what protection and assistance entails in the various circumstances of internal displacement could be advanced by the judiciary. In advancing clarification, the judiciary should make reference to the United Nations <a href="http://www.unhcr.org/protection/idps/43ce1cff2/guiding-principles-internal-displacement.html">Guiding Principles</a> on Internal Displacement and the Kampala Convention, which Nigeria has ratified.</p>
<h2>The way forward</h2>
<p>In January 2016 the Nigerian National Assembly set up a constitutional review committee at the level of the <a href="http://guardian.ng/news/senate-begins-fresh-move-to-review-constitution/">Senate</a> and the <a href="http://www.premiumtimesng.com/news/top-news/197143-house-of-reps-inaugurates-constitution-review-committee.html">House of Representatives</a>. </p>
<p>Having voiced a commitment to protect and assist internally displaced persons, the National Assembly is in a position to initiate constitutional amendments to incorporate their protection. This would ensure durable solutions to the problem of internal displacement at all levels of government. It will also serve as a basis to test the constitutionality of governmental actions, policies, interventions and laws on internal displacement.</p><img src="https://counter.theconversation.com/content/60971/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Romola Adeola does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The rise in the number of people fleeing Boko Haram terror calls for urgent amendments to Nigeria’s constitution to provide legal protection to the country’s millions of internally displaced citizens.Romola Adeola, Legal Researcher, University of PretoriaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/539882016-02-05T04:26:00Z2016-02-05T04:26:00ZRwanda’s Achilles’ heel: there is no back-up plan to Kagame<figure><img src="https://images.theconversation.com/files/110338/original/image-20160204-3012-2yckrv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rwanda has no succession plan to President Paul Kagame.</span> <span class="attribution"><span class="source">Reuters/Tiksa Negeri</span></span></figcaption></figure><p>Rwandan President Paul Kagame New Year’s Eve <a href="http://paulkagame.com/index.php/speeches/national-events/1626-president-kagame-s-new-year-s-message">announcement</a> that he will run for a third term as president
came as no surprise to most observers of the tiny central African country.</p>
<p>It was widely expected after a national referendum approved constitutional changes that allow Kagame to run his <a href="http://www.theguardian.com/commentisfree/cifamerica/2011/jan/27/rwanda-freedom-of-speech">authoritarian</a>, <a href="http://theworldoutline.com/2013/09/kagame-country-rwanda-effectively-one-party-state/">single-party</a> state until <a href="https://theconversation.com/rwanda-paul-kagame-is-in-line-to-stay-in-office-until-2034-53257">2034</a>.</p>
<p>The ruling Rwandan Patriotic Front’s <a href="http://www.britannica.com/topic/Rwandan-Patriotic-Front">(RPF)</a> public relations machinery claims that it is only Kagame himself who has the leadership acumen to oversee Rwanda’s continued <a href="http://www.newvision.co.ug/new_vision/news/1416124/rwandans-clarity-democratisation-process">peace and prosperity</a>. This is the dominant narrative of success that the RPF has painted for foreign audiences.</p>
<p>The reality is that there is no viable alternative to Kagame, within or outside his RPF. Political rivals have died, are jailed and have <a href="http://www.nytimes.com/2014/06/18/opinion/why-are-rwandans-disappearing.html">disappeared</a> or have fled the country.</p>
<h2>Dubious poll and economic statistics</h2>
<p>It is alarming that the purported overwhelming popular support for the RFP has been accepted with such alacrity. </p>
<p>The story fed to the world is that December’s constitutional referendum was approved by more than 98% of voters and before that, when Rwandan lawmakers consulted 3.7 million voters, they could find <a href="http://news.yahoo.com/only-10-rwandans-oppose-kagame-third-term-report-093404258.html">only ten people opposed</a> the idea of a third term for Kagame. That’s an astonishing 99.9997%, which is just slightly higher than the average electoral percentage the RPF has received since <a href="http://www.electionguide.org/countries/id/180/">taking office in 1994</a>. </p>
<p>These numbers should raise eyebrows. As researchers, we know that when we poll a group of 100 free-thinking individuals in the real world on whether or not the sky is blue, we don’t get that kind of consensus. </p>
<p>The numbers from Kigali are literally off the charts – so much so that they discredit themselves. We might as well be told that 110% of Rwandans approve of extending Kagame’s mandate.</p>
<p>This does not even begin to address the fact that democracy since the 1994 genocide is not a system of majority rule, but rather is a complex system that protects the political interests of the RPF and its loyalists.</p>
<p>Political opponents, journalists and ordinary citizens alike dare not voice dissent in Rwanda, as Anjan Sundaram’s recent book <a href="http://www.theguardian.com/books/2016/jan/11/bad-news-last-journalists-in-dictatorship-anjan-sundaram-review-rwanda-paul-kagame">Bad News</a> carefully and persuasively documents. </p>
<p>Kigali tells us not to worry because this movement is popular with the “majority”. They say the West should mind its own business, leaving Rwandans to deal with Rwanda. </p>
<p>Kagame devotees are quick to point out the country’s <a href="https://theconversation.com/why-kagames-bid-to-serve-a-third-term-makes-sense-for-rwanda-53354">economic successes</a>, using reports produced by the Rwandan government itself to back up their claims. In recent years, the World Bank has indeed found Rwanda to be among the easiest countries in Africa in which to <a href="http://www.doingbusiness.org/data/exploreeconomies/rwanda">do business</a>. </p>
<p>But in 2006, when the same World Bank found data that did not support the narrative of economic growth in Rwanda, that data was destroyed and the foreign researchers were <a href="http://www.bertingelaere.net/uploads/2/2/5/2/22520142/life_after_genocide_knowledge_rwanda_ingelaere_asr_final_april_2010.pdf">expelled</a>. Since then everything from the World Bank on Rwanda has been positive. Suppressing dissent knows no bounds.</p>
<h2>An absence of checks and balances</h2>
<p>In Rwanda today there are no checks and balances. There is <a href="http://en.rsf.org/rwanda.html">no independent media</a> in the country. Since he took power there has never been a Rwandan court decision that did not end the way that Kagame <a href="https://www.hrw.org/reports/2008/rwanda0708/8.htm">wanted it to</a>. Every vote in parliament has produced the result Kagame desired. There has never been a popular vote in which people did not concede to Kagame’s will.</p>
<p>Foreign support of this decimation of democracy would also have us remove any remaining incentive for Kagame to show restraint in the coming years. His supporters argue that the country and region would most likely spiral into chaos if he were to step down. </p>
<p>But what if Kagame were to suddenly perish? Kigali has no <a href="https://theconversation.com/the-changes-made-to-rwandas-constitution-are-peculiar-heres-why-53771">back-up plan</a>. He has personally made sure of that. Irresponsible backers of this oppressive regime seem to think Kagame is immortal. </p>
<p>Even using the Rwandan government’s own impressive stats, Kagame is close to the limit of life expectancy for a man born during his era (1957). Life expectancy for Rwandan men is <a href="http://www.worldlifeexpectancy.com/rwanda-life-expectancy">63.8 years</a>. Add the risk factors of military service, poor sleep habits and the weight of a stressful job and he is living on <a href="http://www.nytimes.com/2013/09/08/magazine/paul-kagame-rwanda.html?_r=0">borrowed time</a>.</p>
<p>Kagame’s supporters argue that the country and region would most likely spiral into chaos if he were to step down. No-one who cares about Rwanda would wish for his sudden demise. That would have a catastrophic effect. But you cannot call his government sustainable if it has not prepared a succession plan for the one event that awaits us all.</p><img src="https://counter.theconversation.com/content/53988/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan Thomson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The reality of Rwanda is that there is no viable alternative to President Paul Kagame, within or outside his ruling RPF. Political rivals have died, are jailed, or have fled the country.Susan Thomson, Professor of Peace and Conflict Studies, Colgate UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/537712016-01-28T14:25:39Z2016-01-28T14:25:39ZThe changes made to Rwanda’s constitution are peculiar – here’s why<figure><img src="https://images.theconversation.com/files/109470/original/image-20160128-1055-1xnj3yw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Supporters of Rwandan president Paul Kagame in full cry.</span> <span class="attribution"><span class="source">EPA/Stephen Morrison</span></span></figcaption></figure><p>A <a href="https://theconversation.com/rwanda-paul-kagame-is-in-line-to-stay-in-office-until-2034-53257">two-year process</a> to secure a constitutional amendment allowing Rwandan President Kagame to run for a third term finally ended in mid-December with 98.3% voter approval. The country’s 2003 constitution had limited the number of terms a president could sit to two.</p>
<p>The campaign for the change was run by the governing Rwandan Patriotic Front <a href="http://www.britannica.com/topic/Rwandan-Patriotic-Front">(RPF)</a> as well as all parties represented in parliament. It was largely supported by the regime-dependent media and opinion makers. The result was near-total unanimity in favour.</p>
<p>The sole registered opposition party, the <a href="http://www.rwandagreendemocrats.org/">Democratic Green Party</a>, was the only one to publicly oppose the move, and even <a href="http://mgafrica.com/article/2015-10-08-rwanda-supreme-court-dismisses-case-against-kagame-3rd-term-its-a-battle-thats-never-been-won-in-africa">petitioned</a> the Supreme Court to have the amendment declared unconstitutional. But it had no legal case and was rightly denied its claim. </p>
<p>In all, 3.7 million Rwandans out of a total voting population of six million <a href="http://www.focus.rw/wp/2015/07/14/mps-say-3-7-million-rwandan-petitions-are-constitutional/">signed petitions</a> in a regime-organised “spontaneous” expression of support. The country’s population is estimated to be just over <a href="http://countrymeters.info/en/Rwanda">12 million</a>.</p>
<p>There were no debates, no demonstrations - not even peaceful ones. This was to be expected. Since the RPF took power in 1994 every demonstration in the country has been organised by the government. </p>
<p>Both chambers of parliament <a href="http://news.yahoo.com/rwanda-parliament-votes-support-kagame-third-term-113017972.html">unanimously approved</a> the amendment. One MP abstained. And during nationwide “consultations”, MPs and senators only found ten Rwandans opposing the move. </p>
<p>Strongly worded expressions of <a href="http://greatlakesvoice.com/us-eu-warns-kagame-on-3rd-term-bid/">discontent</a> by the US and the EU didn’t help. Kagame was quick to denounce international <a href="http://www.times.mw/kagame-hits-back-at-us-call-to-step-down-at-end-of-term-in-2017/">interference</a> in Rwandan affairs.</p>
<p>The revised constitution was published in the <a href="http://www.minijust.gov.rw/fileadmin/Law_and_Regulations/Official_Gazette_no_Special_of_24.12.2015__2___1_.pdf">Official Gazette</a> on 24 December. Kagame, having displayed a noncommittal attitude throughout the campaign, announced on New Year’s eve that he would seek a third presidential <a href="http://paulkagame.com/index.php/speeches/national-events/1626-president-kagame-s-new-year-s-message">term</a>. </p>
<p>This article draws attention to some legal peculiarities of the revised constitution.</p>
<h2>Unpacking the constitutional change</h2>
<p>Article 101 as revised states:</p>
<blockquote>
<p>The President of the Republic is elected for a five (5) year term. He or she may be re-elected once.</p>
</blockquote>
<p>The initial 2003 constitution was phrased as follows:</p>
<blockquote>
<p>The President of the Republic is elected for a term of seven years renewable only once. Under no circumstances shall a person hold the office of President of the Republic for more than two terms. </p>
</blockquote>
<p>The duration of presidential terms is thus reduced from seven to five years; the number of terms remains limited to two. The deletion of the emphasis “under no circumstances” has no constitutional significance.</p>
<p>Although the Democratic Green Party invoked this to support its claim before the Supreme Court, the two-term limit is clear and unambiguous, and the emphasis was redundant. So far, so good.</p>
<p>But, Chapter XI on transitional provisions contains an article that makes all the difference. Article 172 proceeds in three steps. Paragraph one states:</p>
<blockquote>
<p>The President of the Republic in office at the time this revised Constitution comes into force continues to serve the term of office for which he was elected. </p>
</blockquote>
<p>This provision is not extraordinary as it aims at preventing a void in the office of the president. But it would have been more logical to provide for this continuity for all offices of the state in one transitional provision. However, this paragraph sets the foundation for something more important: namely Kagame’s stay in office beyond 2017.</p>
<p>Indeed the operative part of paragraph two provides that</p>
<blockquote>
<p>[w]ithout prejudice to Article 101 of this Constitution (…) a seven (7) year presidential term of office is established and shall follow the completion of the term of office referred to in the first paragraph of this article.</p>
</blockquote>
<p>While the legalistic quality of this provision is poor and could raise doubts as to the beneficiary of this exceptional seven-year term (as phrased it could apply to any candidate), it is clearly meant to apply to Kagame, and to him only, as the non-operative part (see below) indicates. So paragraph two allows Kagame to run for a third seven year term in 2017.</p>
<p>The third paragraph states:</p>
<blockquote>
<p>The provisions of Article 101 of this Constitution shall take effect after the seven (7) year term of office referred to in the second paragraph of this article</p>
</blockquote>
<p>What this means is that after his third seven-year term in 2024, Kagame can stand for another two five year terms. </p>
<p>This implies that he could theoretically remain in office until 2034. As he was de facto leader since 1994 before formally becoming president in 2000, that would give him a 40-year presidency. </p>
<h2>What’s peculiar about the changes</h2>
<p>Article 172 displays at least three peculiarities. The first is that the provision is tailor-made for one person, namely President Kagame. Constitutions are normally abstract and general. This oddity was highlighted by the EU High Representative <a href="http://www.consilium.europa.eu/en/press/press-releases/2015/12/03-hr-declaration-on-constitutional-review-in-rwanda/">Frederica Mogherini</a>:</p>
<blockquote>
<p>[T]he adoption of provisions that can apply only to one individual weakens the credibility of the constitutional reform process (…). The amendments to the Rwandan constitution (…) would give rise to this situation.</p>
</blockquote>
<p>Second, that the revised text refers specifically to Kagame can also be deduced from another peculiar feature. This is the inclusion of a non-operative provision in the second paragraph of article 172 which contains the following passage:</p>
<blockquote>
<p>….considering the petitions submitted by Rwandans that preceded the coming into force of this revised Constitution, which were informed by the particular challenges of Rwanda’s tragic history and the choice made to overcome them, the progress so far achieved and the desire to lay a firm foundation for sustainable development. </p>
</blockquote>
<p>This can refer only to Kagame’s past record. In addition, it is a sentence one would expect to find in the preamble of the constitution, and not in the actual text as it has no normative content. </p>
<p>The third oddity is that the entry into force of article 101 is made dependent on a contingent event, namely that Kagame stands for re-election in 2017 and that he is elected.</p>
<p>While it is safe to assume that he will be elected if he runs, the question arises: what happens if he doesn’t? Although he has announced he will, events might prevent him from doing so between now and mid-2017. In that case, does article 101 enter into force in 2017?</p>
<p>These three peculiarities are the consequence of a bizarre constitution-making process that was exclusively focused on Kagame remaining in office beyond 2017. The entire campaign leading to this outcome was extremely personalised, with the incumbent presented as unique and irreplaceable and, more generally, Rwanda highlighted as exceptional. This is not the foundation on which sound constitutional bases can be laid.</p><img src="https://counter.theconversation.com/content/53771/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Filip Reyntjens does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Recent changes to the Rwandan constitution appear to have been tailor-made for the current president. This does not bode well for the country’s future constitutional base.Filip Reyntjens, Professor of Law and Politics, Institute of Development Policy and Management (IOB) , University of AntwerpLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/420382015-05-19T20:04:16Z2015-05-19T20:04:16ZPutting words to the tune of Indigenous constitutional recognition<p>The debate about Indigenous constitutional recognition has become more intense in recent weeks. It has taken an interesting turn with Noel Pearson and the Cape York Institute proposing an alternative approach that involves amending the Constitution to create an Indigenous representative body. Under the plan, the Indigenous representative body’s key role would be to consult and provide advice on proposed laws that affect Aboriginal and Torres Strait Islander peoples.</p>
<p>The Cape York Institute first outlined this proposal in two <a href="http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Constitutional_Recognition_of_Aboriginal_and_Torres_Strait_Islander_Peoples/Constitutional_Recognition/Submissions">submissions</a> to the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples. To date the public debate on these submission has been lacking in clarity and accuracy. </p>
<p>There are varying interpretations of what is actually being proposed. The proposal has been misleadingly described as an “<a href="http://www.theaustralian.com.au/national-affairs/indigenous/recognise-committeesplit-on-best-way-forward/story-fn9hm1pm-1227356868468">Indigenous House of Lords</a>” or reserved seats.</p>
<p>Father Frank Brennan, while accepting that “an Indigenous council is needed to advise government”, <a href="http://www.theaustralian.com.au/news/features/acknowledging-indigenous-heritage-a-good-beginning/story-e6frg6z6-1227356951070">argued that</a>:</p>
<blockquote>
<p>At least in the first instance it would be impossible to design a constitutional provision for a council that was technically and legally sound, ensuring the untrammelled sovereignty of parliament.</p>
</blockquote>
<p>Taking up that challenge, below is a form of words that could be used to give effect to the Cape York Institute’s proposed constitutional amendment, without compromising parliamentary sovereignty or government efficiency. </p>
<p>As with all first drafts, it will need refinement and development as issues are debated and developed. But sometimes it helps to have a set of words to crystallise what is being proposed, so that those participating in the public debate are not arguing at cross-purposes. The debate can therefore be more focused and productive.</p>
<h2>A new chapter 1A of the Constitution</h2>
<p>The Cape York Institute proposes the insertion of a new chapter 1A in <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/">the Constitution</a> after chapter 1, which deals with the legislature. This new chapter could contain a provision along the following lines:</p>
<p>60A(1) There shall be an Aboriginal and Torres Strait Islander body, to be called the [insert appropriate name, perhaps drawn from an Aboriginal or Torres Strait Islander language], which shall have the function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples.</p>
<p>(2) The Parliament shall, subject to this Constitution, have power to make laws with respect to the composition, roles, powers and procedures of the [body].</p>
<p>(3) The Prime Minister [or the Speaker/President of the Senate] shall cause a copy of the [body’s] advice to be tabled in each House of Parliament as soon as practicable after receiving it.</p>
<p>(4) The House of Representatives and the Senate shall give consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples.</p>
<p>Below is a detailed discussion of each of the sub-sections and how they are intended to work.</p>
<h2>Establishment and function of the body</h2>
<p>Sub-section 60A(1) requires the establishment of a body and gives it a function. It does not itself establish the body, as legislation will be needed to set up the mechanism for how members of the body are chosen. That mechanism will then need to operate (e.g. by holding an election for members of the body) before it can exist.</p>
<p>Cynics will note that the same opening words are used in section 101 of the Constitution, requiring the establishment of an <a href="http://en.wikipedia.org/wiki/Inter-State_Commission">inter-state commission</a>, which no longer exists. That body was established in good faith by the parliament but ceased to be relevant and functional after a court decision found that it could not fulfil its intended quasi-judicial role, as this would breach the doctrine of separation of powers. </p>
<p>The Indigenous body proposed here does not risk the same fate, as it is not proposed that it exercise any adjudicative functions that could breach the doctrine of separation of powers. The inter-state commission also never had a body of supporters clamouring for its existence, unlike the Indigenous body, which would have a clear constituency that would ensure its creation and survival. If the Australian people approved in a referendum the constitutional amendment for the creation of an Indigenous body, it would have an unassailable public mandate for its establishment and continuity.</p>
<p>Sub-section 60A(1) gives this body a broad function – the “function of providing advice to the Parliament and the Executive Government on matters relating to Aboriginal and Torres Strait Islander peoples”. It is deliberately drafted in broader terms than sub-section 60A(4). It is intended to permit the Indigenous body not only to comment and provide advice in relation to bills before the parliament, but also to initiate advice on matters that it considers that the parliament or the executive government should address. </p>
<p>The advice provided by this body will be valuable in identifying problems and potential solutions, as well as aiding the parliament in ensuring that its bills are well-considered and most effective in their application to Aboriginal and Torres Strait Islander peoples.</p>
<p>The words “function of providing advice”, while cumbersome, have been used to distinguish the body’s role from one of “advising” the parliament. That is to ensure this is not associated or confused with the very different role of ministers “advising” the governor-general. </p>
<p>The advice of the Indigenous body is not intended to be constitutionally binding. Instead, the Indigenous body would provide advice in the form of wise counsel and representative views that should be given serious consideration, rather than an instruction or the imposition of an obligation. If it is considered necessary to make this even clearer, a different word such as “counsel” could be substituted.</p>
<h2>Power to legislate about the body</h2>
<p>Sub-section 60A(2) gives the Commonwealth the power to make laws with respect to the composition, roles, powers and procedures of the body. Like other legislative powers conferred upon parliament, it is made “subject to this Constitution”. This ensures that it is subject to other constitutional doctrines, such as the separation of powers.</p>
<p>It would therefore prevent the conferral of judicial functions on the body or roles or powers that would otherwise breach any constitutional implications or express constitutional prohibitions.</p>
<p>It is not appropriate to set out in the Constitution the detail of how such a body is to be chosen. Just as the Constitution leaves it substantially to legislation to determine how members of parliament are elected and the powers and procedures of the parliament, so too this amendment would leave such matters to the parliament to determine, in collaboration with Aboriginal and Torres Strait Islander people.</p>
<h2>Tabling the advice</h2>
<p>Any advice by the Indigenous body should be tabled for several reasons:</p>
<ul>
<li><p>it provides a permanent public record of that advice,</p></li>
<li><p>it gives the advice the status of a privileged document,</p></li>
<li><p>it provides certainty for the parliament as its members will know and have a formal record of the advice to which they should give consideration and</p></li>
<li><p>it provides a direct channel from the Indigenous body into the parliament, providing a constitutional means for Aboriginal people and Torres Strait Islanders to have a voice in parliamentary proceedings concerning their affairs.</p></li>
</ul>
<p>A question arises as to who should be required to table the advice in parliament. One option is to oblige the prime minister to cause it to be tabled in each house. This could be done by a minister representing the prime minister in each house (as is standard legislative practice).</p>
<p>The use of the prime minister would reinforce the status and gravity of the process. It would also have the effect of “recognising” the prime minister in the Constitution for the first time. That would be a timely step in making the Constitution more relevant.</p>
<p>An alternative would be to oblige the Speaker of the House of Representatives and the President of the Senate to table the advice. This would be consistent with existing references to those offices in the Constitution and would distance the advice from the government of the day. Either approach would be appropriate.</p>
<h2>Consideration of the advice by parliament</h2>
<p>The critical provision in the chapter is sub-section 60A(4). It imposes the obligation on the two houses of parliament of giving “consideration to the tabled advice of the [body] in debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples”. </p>
<p>The two main issues are: the scope of the obligation; and the extent to which it imposes an enforceable legal burden on the parliament and therefore has an impact upon its power to make laws.</p>
<p>First, the scope of the obligation is more limited than the function given to the Indigenous body by sub-section 60A(1). While the body can advise broadly on any matters relating to Aboriginal and Torres Strait Islander peoples, and the parliament and executive government can and should take that advice into consideration, the obligation in sub-section 60A(4) is confined to considering tabled advice when “debating proposed laws with respect to Aboriginal and Torres Strait Islander peoples”. </p>
<p>If the parliament is to have a specific power to make laws “with respect to Aboriginal and Torres Strait Islander peoples”, then it is appropriate and justifiable that those peoples are able to express their views to parliament about how such a power is to be exercised.</p>
<p>In practice, this could operate by a minister, in the second reading speech on a relevant bill, drawing the attention of the house to any relevant advice tabled by the Indigenous body and noting the government’s response. Other members and senators would then be free to debate the advice and take it into consideration when voting.</p>
<p>The second question is how to ensure that this provision is not interpreted as a legally enforceable limit on the parliament’s power to enact laws. It would be inappropriate for the Indigenous body to delay or prevent the enactment of laws simply by declining to provide advice.</p>
<p>The key is two-fold. First, the houses are only obliged to consider advice that has been tabled. If no advice has been provided and tabled, then there is nothing the house is obliged to consider. </p>
<p>Hence, the responsibility is on the Indigenous body to provide advice if it wants it considered. Failure to provide advice cannot hold up the process.</p>
<p>Second, the words “debating”, “consideration” and “proposed laws” are deliberately employed to indicate that this is an internal parliamentary process that cannot be interfered with or enforced by the courts. The High Court has, for example, regarded constitutional provisions concerning money bills that refer to “proposed laws” as not being enforceable by the courts as this would interfere with internal parliamentary procedures.</p>
<p>The intention is therefore that the issues of whether advice has been considered, the nature of that consideration and the extent of it would be a matter for each house to determine without outside judicial involvement. There would be a political and moral obligation upon members of parliament to fulfil their constitutional role in giving consideration to such advice, but it would be for the houses, not the courts, to ensure that this obligation is met. Contrary to Brennan’s concerns, such an approach would support parliamentary sovereignty, rather than limit it.</p>
<p>This intention could also be made clear in the parliamentary debate on the referendum bills and the official material sent to voters before the referendum, so that it would be apparent on the face of the extrinsic materials that a court may draw upon in interpreting a constitutional amendment.</p>
<h2>Why should Indigenous people get special treatment?</h2>
<p>The type of constitutional amendment outlined above could not be characterised as creating an Indigenous House of Lords or reserved seats. It is about consulting Aboriginal and Torres Strait Islander peoples about laws that affect them and letting their views be heard in parliament. </p>
<p>This opens up the prospect that laws and policies that have a significant impact upon Aboriginal and Torres Strait Islander peoples will be better targeted and more effective in resolving the problems that they face in daily life. It is therefore an active form of recognition, rather than a passive and merely symbolic one. It is also an ongoing form of recognition, not just words on a page of a document rarely read and soon forgotten.</p>
<p>The question is sometimes asked: “Why should Aboriginal and Torres Strait Islander peoples get special treatment by the creation of such a body, while nobody else does?” </p>
<p>The answer is that it is proposed that the Commonwealth Parliament would have the power to make laws with respect to Aboriginal and Torres Strait Islander peoples, and not any other specially identified groups. Aboriginal and Torres Straits Islander peoples have a distinct constitutional position as Australia’s Indigenous peoples. They have pre-colonial rights to their lands and waters, and cultures, languages and heritage that have endured for millennia.</p>
<p>No other group is in the same position in Australia. The distinct position of Indigenous people cannot be denied and nor can the need for the Commonwealth Parliament to be able to legislate with respect to matters such as native title and heritage. As legislation is directed specifically at matters concerning Aboriginal and Torres Strait Islander peoples, in a way that doesn’t apply to everyone else, it is only fair that they should be consulted and have their voices heard in parliament when those laws are being made.</p><img src="https://counter.theconversation.com/content/42038/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey receives funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies. </span></em></p>Proposals for constitutional recognition of Indigenous people are gaining momentum but also raising legal concerns. Here is a form of words to create an advisory council that overcomes those concerns.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/365282015-01-22T10:41:46Z2015-01-22T10:41:46ZAn American Charlie Hebdo?<figure><img src="https://images.theconversation.com/files/69666/original/image-20150121-29767-1ulmato.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Samuel Roth's time, there was no Constitutional protection for expression deemed subversive, obscene or indecent.</span> <span class="attribution"><a class="source" href="http://library.columbia.edu/content/libraryweb/news/libraries/2014/2014-1-14_CUL_IS_Announces_Spring_2014_Events/_jcr_content/layout_content/textimage_v2/image.img.jpg/1389737031174.jpg">Columbia News</a></span></figcaption></figure><p>In 1957, publisher Samuel Roth spent his 63rd birthday in federal prison. His appeal denied by the United States Supreme Court, he would end up serving every day of his five year sentence. The crime? He had placed “obscene” books (and flyers advertising these books) in the mail. </p>
<p>In Roth’s time, there was no Constitutional protection for expression deemed subversive, obscene or indecent (which included information about abortion or contraception). US Customs, anti-vice societies as well as citizen and religious groups all passed judgment, declaring what was and wasn’t permissible. In 1929, for example, Roth had also been arrested for publishing works such as James Joyce’s Ulysses, DH Lawrence’s Lady Chatterley’s Lover, Frank Harris’ My Life and Loves, a checklist of Victorian forbidden erotica, Schnitzler’s play Hands Around and the Kama Sutra. </p>
<p>In the wake of the assassinations of cartoonists for the French weekly Charlie Hebdo, many are discussing freedom of speech and its importance in a secular Western culture. In contemporary France, solidarity with Charlie’s iconoclastic satire makes it clear how absolute that right is. Samuel Roth was equally iconoclastic – and hated by many. Such people are never secure, regardless of the protections that democratic institutions can offer.</p>
<p>Both Samuel Roth and Charlie Hebdo could be thought of as pariahs who made many enemies. Both stoked the insecurities of their adversaries, who intimidated them and threatened them with suppression. Neither offended gratuitously, but rather sought to force people to confront their worldview and consider why they react the way they do to images and words.</p>
<h2>The original publisher provocateur</h2>
<p>Roth grew up in New York City’s Lower East Side, arriving at the age of 10 from a shtetl in Eastern Europe. A poet since the age of 14, he wished to build stature as a man of letters by publishing literary magazines. But after he issued excerpts from Ulysses without Joyce’s permission, the literary establishment spurned him. Needing money, he turned to distributing pornography and over-the-counter exposes and biographies of celebrities.</p>
<p>In 1931, Roth published John Hamill’s The Strange Career of Mr. Hoover Under Two Flags, an attack on sitting President Herbert Hoover. It accused “The Great Engineer” of, among other crimes, profiting from the relief of Belgium during World War I.</p>
<p>The White House sent investigators. One accessed Roth’s bank account and was able to unearth court documents related to a civil suit filed against Roth. With this information, the investigator offered Roth money and escape from embarrassment if he withdrew the book. Roth declined, hoping instead for a libel suit that would be a publicity bonanza. </p>
<p>The following year, Roth published the pseudonymous A Scarlet Pansy, now recognized as a landmark early gay novel. Its male protagonist, Faye Estrange, was a transvestite who died on a World War I battlefield while protecting his injured lover. </p>
<p>A decade later, Roth faced the problem of how to sell A Scarlet Pansy through the mail. In the 1940s, any text or image that a postal inspector considered obscene or indecent would be declared unmailable. Roth ended up excising many incidents that documented the gay milieu of the 1920s and 1930s, and the hidden loneliness of homosexual flamboyancy. On this occasion, Roth conceded to the agents of the moral consensus: he was, after all, a businessman.</p>
<p>But Roth grew frustrated when the Post Office began preventing many of his less-offensive works from being shipped. Waggish Tales from the Czechs (1947) was a set of spicy smoking-room yarns that weren’t scatological or pornographic in any way. Yet the Post Office ordered a mail block on the text along with other titles in Roth’s catalog. In 1949, Roth sued the New York postmaster, arguing that, due to the block, he hadn’t received any orders for the books. </p>
<p>Where was due process? “Dame Post Office” – as Roth called the bureaucracy – asserted that any delay would allow Roth to profit from his scheme. Their intransigence – which Congress allowed – meant Roth’s business was denied a basic democratic First Amendment protection. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=885&fit=crop&dpr=1 600w, https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=885&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=885&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1112&fit=crop&dpr=1 754w, https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1112&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/69668/original/image-20150121-29736-18egtpd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1112&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">‘Lysistrata,’ by controversial British illustrator Aubrey Beardsley.</span>
<span class="attribution"><a class="source" href="http://upload.wikimedia.org/wikipedia/commons/4/4f/Aubrey-beardsley-lysistrata-01.jpg">Wikimedia Commons</a></span>
</figcaption>
</figure>
<p>In response, Roth became even more iconoclastic. He began circulating a publication that included illustrated excerpts from erotic classics, including drawings by Aubrey Beardsley. Some were considered obscene, as were a book about lesbianism and a photographic study of nudes.</p>
<p>In 1952, the New York City District Attorney’s Office requested that Roth withdraw another of his books – The Private Life of the Duke and Duchess of Windsor – from circulation. The British Board of Trade had strenuously objected to the work’s conclusion that the Duke was homosexual.</p>
<p>Instead of obeying the polite request, Roth published a paperback edition, with a frontispiece depicting a snarling woman with the Duchess’ facial features, a forked tongue protruding from her teeth. Pleased with his defiance of authorities, Roth then published an expose of fear-mongering Commie-hunter <a href="http://www.nytimes.com/1998/11/18/arts/he-turned-gossip-into-tawdry-power-walter-winchell-who-climbed-high-fell-far.html">Walter Winchell</a>.</p>
<figure class="align-right ">
<img alt="" src="https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=891&fit=crop&dpr=1 600w, https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=891&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=891&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1120&fit=crop&dpr=1 754w, https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1120&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/69658/original/image-20150121-29754-bcvxqf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1120&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The frontispiece from the paperback version of The Private Life of the Duke and Duchess of Winsor.</span>
<span class="attribution"><a class="source" href="http://members.authorsguild.net/jgertzman/images/Duchess-210.jpg">Jay Gertzman</a></span>
</figcaption>
</figure>
<p>Having upset a number of powerful people in powerful places, Roth couldn’t skirt their wrath forever. The United States Postal Service, the New York Society for the Suppression of Vice, the New York District Attorney’s Office, the FBI, the literary establishment – all would play a part in his 1956 indictment and imprisonment, which effectively put an end to his publishing career.</p>
<h2>Roth’s lasting legacy</h2>
<p>Roth may have despaired over the failure of his 1957 Supreme Court appeal to his conviction. But two years later, he was able to claim his place as a leading fighter for First Amendment freedom: the grounds of Roth’s appeal in Roth v. The United States were used to win a more reputable publisher, Barney Rosset, the right to distribute Lady Chatterley’s Lover through the mail. Some other beneficiaries included Al Bendich (<a href="http://www.nytimes.com/2015/01/14/us/al-bendich-defender-of-howl-and-lenny-bruces-comedy-is-dead-at-85.html">who died last week</a>) – the lawyer who won acquittal for contrarian comedian Lenny Bruce and poet Allen Ginsberg – and <a href="http://www.nytimes.com/2000/04/29/us/elmer-gertz-a-top-lawyer-is-dead-at-93-won-for-leopold-ruby-and-henry-miller.html">Elmer Gertz</a>, who argued successfully for the publication of the sexually-explicit Henry Miller novel Tropic of Cancer.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=404&fit=crop&dpr=1 600w, https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=404&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=404&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=508&fit=crop&dpr=1 754w, https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=508&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/69669/original/image-20150121-29720-sll7ci.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=508&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Though Roth lost his Supreme Court appeal, his arguments were used to vindicate other writers and artists, like Allen Ginsberg, whose poem ‘Howl’ was initially deemed obscene – and banned from publication.</span>
<span class="attribution"><a class="source" href="http://upload.wikimedia.org/wikipedia/commons/thumb/d/d3/Allen_ginsberg_675.jpg/1024px-Allen_ginsberg_675.jpg">Michiel Hendryckx/Wikimedia Commons</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>It took men like Roth – who possessed a raucous voice and a unique mixture of belligerent idealism and prophetic assurance – to pave the way for others, and reshape the interpretation of the First Amendment.</p>
<p>Charlie Hebdo’s artists risked being targeted by militant zealots alien to their culture, who felt their God was stronger than those of their enemies. It’s a battle cry that echoes from the Old Testament’s prophets to the mouth of one of Donald Rumsfeld’s favorite generals, William Boykin, who once said, “My God was bigger than [a Muslim soldier’s].” </p>
<p>Roth’s enemies didn’t use ideology in order to punish the pariah in their midst. They hoped shame and isolation would be enough. But
Roth, like Charlie, was irrepressible. The two are brothers in spirit.</p><img src="https://counter.theconversation.com/content/36528/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jay Gertzman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In 1957, publisher Samuel Roth spent his 63rd birthday in federal prison. His appeal denied by the United States Supreme Court, he would end up serving every day of his five year sentence. The crime? He…Jay Gertzman, Professor Emeritus of English, Mansfield University of PennsylvaniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/144742013-05-20T20:35:29Z2013-05-20T20:35:29ZReferendum chaos - do ministers really know what they are proposing?<figure><img src="https://images.theconversation.com/files/24109/original/gxbq4c7b-1369015720.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Has the Gillard government fully thought through its referendum on recognition for local government?</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>I am not Nostradamus, but I am prepared to make a confident prediction. If the proposed constitutional amendment to recognise local government, in the form announced by <a href="http://ministers.regional.gov.au/honourable-anthony-albanese-mp/media-releases/2013/release-draft-constitutional-amendment-recognise">press release</a> last week, were to proceed, all the states would give it complete support. </p>
<p>Indeed, I would not be surprised to see state and territory premiers jumping with glee and breaking out the champagne. If successful, such a referendum would give a huge boost to the economy and be an <a href="http://www.abc.net.au/news/2013-05-09/gillard-confirms-local-government-referedum/4679152">extraordinary legacy</a> of the Gillard government.</p>
<p>My second confident prediction is that the Gillard government will not put the referendum in the form that it announced – more’s the pity.</p>
<p>The proposal is to amend <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s96.html">section 96 </a>of the Constitution. This provision allows the Commonwealth to “grant financial assistance to any State on such terms and conditions as the Parliament thinks fit”. </p>
<p>The sting is in the tail – the “terms and conditions”. This means that the Commonwealth can intervene in any area of state responsibility, such as health or education, by placing conditions on its funding to the state.</p>
<p>As the states’ means of revenue-raising are few, they are dependent upon Commonwealth grants for about half the revenue they need to fulfil their responsibilities. Realistically, they cannot refuse Commonwealth grants and have to put up with <a href="http://www.sbs.com.au/news/article/1765606/Referendum-plan-'could-weaken-state-governments'">onerous terms and conditions</a>.</p>
<p>According to the High Court, the Commonwealth can impose any terms and conditions on its grants, even if they have nothing at all to do with how the money is spent. It can therefore give money for a sporting ground on the condition that the state changes its industrial relations system.</p>
<p>The <a href="https://theconversation.com/explainer-why-are-we-having-a-referendum-on-local-government-14112">proposed referendum</a> is to permit the Commonwealth to make grants directly to local government too, rather than through the states. The joint announcement of the federal attorney-general Mark Dreyfus and Minister for Local Government Anthony Albanese set out the revised version of section 96 in the <a href="http://ministers.regional.gov.au/honourable-anthony-albanese-mp/media-releases/2013/release-draft-constitutional-amendment-recognise">following terms</a>:</p>
<blockquote>
<p>During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State, or to any local government body formed by a law of a State.</p>
</blockquote>
<p>Yes, there was a full stop at the end and the phrase “on such terms and conditions as the Parliament thinks fit” had magically disappeared.</p>
<p>Was it a bit of spin by a media adviser who thought it might be clever not to mention that the funding to local government would be tied up by burdensome and intrusive conditions? Or was it simply ignorance? </p>
<p>One might imagine that with something as important as a proposed change to the Constitution, someone who knew what they were doing might just have glanced at it. Apparently not. So the press release makes each minister look like a goose and has misled the press which republished it everywhere, understandably presuming it was accurate.</p>
<p>What was really breathtaking, however, was the opinion piece by Anthony Albanese printed in <a href="http://www.theaustralian.com.au/national-affairs/opinion/council-vote-is-housekeeping/story-e6frgd0x-1226644787192">The Australian </a>on the following day. Yes, he too set out the revised section 96, carefully including the completely redundant preliminary words, but leaving off the critical words that the grants shall be on “such terms and conditions as the Parliament thinks fit”. </p>
<p>A mistake in a press release is one thing, but when the minister repeats the omission in his own opinion piece, then one really has to wonder exactly how much attention has been paid to this proposal and whether the ministers involved really know what they are doing.</p>
<p>There is one other remote possibility. Perhaps they meant it. Perhaps the lasting gift of the Gillard government will be terminating the Commonwealth’s ability to place terms and conditions on its grants. This would mean that the Commonwealth could get on with governing in its areas of responsibility and the states could do so in theirs. </p>
<p>Just imagine - no duplication, no administrative burdens, no Commonwealth bureaucrats who have never run a hospital or school placing conditions on how the states run hospitals or schools. A single level of government would be responsible and accountable for the subject areas within its jurisdiction. Economic efficiency in the public sector would rise and the budget would most likely come bouncing back into surplus. </p>
<p>It would be a truly noble act of a dying government. But not even Nostradamus would have been prepared to make such an unrealistic prediction.</p><img src="https://counter.theconversation.com/content/14474/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey receives funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>I am not Nostradamus, but I am prepared to make a confident prediction. If the proposed constitutional amendment to recognise local government, in the form announced by press release last week, were to…Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.