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Occupy Wall Street: If South Americans Can Reform Their Constitutions, Then Why Not Us?

After a couple of weeks trying to find their groove, Occupy Wall Street protesters are now on a high and are set to take their movement to the next level. First came the announcement that New York City mayor Mike Bloomberg would not dismantle the encampment at Liberty Plaza, and then, as anti-capitalist demonstrators took to the streets in cities as far afield as Madrid and Rome, activists may have sensed that Occupy Wall Street stood to become truly global in scope. With the mushrooming of protest across the United States, corporate executives are sitting up and taking notice, while both the Republicans and Democrats have been forced to recognize the growing power of demonstrations. With the 2012 presidential election just a year away, it is not inconceivable that Occupy Wall Street will exert a political impact upon the campaign.

Though these wins are certainly impressive, the protesters must now face some daunting challenges. Youthful and energetic, Occupy Wall Street activists have enthusiasm and momentum on their side. There will come a time, however, when the demonstrators may find it difficult to sustain such a high level of mobilization. Perhaps sensing that it was too soon to put forth a concrete set of demands, anti-corporate protesters have, up until now, exploited a general sense of unease with Wall Street excesses and government bailouts of the financial sector.
Yet, for all their successes, the demonstrators are locked in a paradox: on the one hand, Occupy Wall Street must appeal to more disenfranchised people if it wants to grow the movement, ye by including other constituencies the protesters may find that the nature of their protest becomes too diluted or diffuse. Activists, then, must delicately find a way to channel their demands in such a way that the movement expands without losing its core focus. In looking to the future, some on the left are seizing on ambitious goals which heretofore might have seemed, to put it modestly, rather "pie in the sky."

Occupy Wall Street Thinks Big

Take, for example, the radical notion of amending the Constitution to address protesters' demands or even convening a constitutional convention. Already, an Occupy Wall Street "working group" has called for a "non-partisan National General Assembly" which would convene in Philadelphia in July, 2012 to draft a "petition of grievances." In an echo of the original Continental Congresses of the colonial era, members of the assembly would deliberate amongst themselves and present points to the presidential candidates in advance of the 2012 election.

Occupy Wall Street has listed a number of grievances having to do with economic fairness, and not surprisingly the case of Citizens United vs. Federal Election Commission (or FEC) stands out. Reformers would like to remove corporate money from the political process by doing away with this recent Supreme Court decision, which granted companies the right to spend unlimited funds to influence the outcome of elections. The ruling has enraged the progressive community which now sees democracy as hanging by a mere thread.

Taking Up the Cause of Constitutional Reform

Though some may be taken aback by Occupy Wall Street's idea, the notion of overhauling the constitution is not a new one and, indeed, dovetails with some recent efforts on the left to address the issue. Indeed, in an attempt to head off creeping corporate influence, a number of organizations including Ralph Nader's Public Citizen recently called for a national grassroots campaign to amend the constitution, overturn the Supreme Court's decision and declare unequivocally that corporations should not enjoy the same rights as persons.

Yet another backer of the proposal is the Liberty Tree Foundation, run by Wisconsin activist and attorney Ben Manski. I met Ben in Madison in the summer of 1999, shortly before the emergence of the anti-globalization movement. Later, Manski played a key role in organizing protests against the World Trade Organization in Seattle, considered by some to be a precursor to the Occupy Wall Street movement. "Given that the occupy movement is concerned about the fundamental allocation of political and economic power," Manski wrote me in a recent e-mail, "and is committed to the practice of direct democracy, as opposed to merely representative government, it's reasonable to expect that in time this movement will take up the work of constitutional reform."

Occupy Wall Street and Constitutionalists Coalescing?

Manski is already seeing signs "of integration between the occupy movement and the existing post-Citizens United v. FEC movement to amend the U.S. Constitution." In the coming months, he believes, these two currents will continue to overlap and coalesce. Perhaps, Manski's predictions will turn out to have merit: already, moveon.org, which has traditionally been tied to the Democratic Party, has taken to posting Occupy Wall Street's call for the separation of government from corporations, much as the colonists called for the separation of government from England in 1776.

Moreover, during a recent conference held at Harvard Law School both tea party activists and anti-corporate liberals made common cause to discuss the corrupting influence of political contributions in campaigns. The conference, which was attended by Manski amongst others, discussed the possibility of convening a constitutional convention in order to address fundamental failures in American government.

Recent surveys suggest that the Supreme Court's Citizens United ruling is wildly unpopular amongst the American public, including Democrats, Republicans and independents. Judging from some recent grumblings in Congress, too, this movement might have some legs: some liberal members of the House have voiced support for a constitutional amendment aimed at Citizens United, and in the Senate too there have been calls for an amendment which would allow the government to regulate the raising and spending of money for federal political campaigns.
A Constitutional Uphill Climb

Despite such efforts, the reality is that constitutional reform would remain a challenging uphill struggle. If popular forces sought to repeal Citizens United, they would have two options: either pass an amendment by a two-thirds margin in both houses of Congress, and then get three-quarters of the states to ratify it, or, more controversially, get two thirds of the states to convene a constitutional convention and get three quarters to ratify. The first option has proven to be rather thorny: since 1789, over 10,000 amendments have been introduced into Congress, but only 33 have been approved and of those just 27 have been ratified and added to the Constitution.

The second option, which is favored by the likes of Manski, has almost never been used so we'd be in slightly untested waters. Since the Constitution went into effect, there have been hundreds of petitions from the states to convene a constitutional convention and none of these efforts ever bore fruit. What is more, if the left ever succeeded in convening a constitutional convention, activists might regret their decision as this could unleash a virtual Pandora's Box. There's no contemporary experience with a national constitutional convention and no clear consensus about what it should do. In theory, a constitutional convention could allow the right to introduce its own amendments.

As South America Goes, So Too North America?

Faced with such daunting odds, some on the left might dismiss any such grandiose constitutional maneuvers. But just think: a mere two months ago who would have guessed that a modest encampment near Wall Street would have sparked world-wide protest and rallies of hundreds of thousands of people? Perhaps, within the present milieu, such ambitious plans might at the very least succeed in sparking a long overdue national debate.
Having endured thirty years of conservative ascendancy the left is understandably a bit jaded, but I think progressives may sell themselves a little short. In South America, a couple of countries have managed to reform their constitutions in short order, yet many in the U.S. believe that such radical change is impossible in Washington. Why is that? Are Venezuelans, Ecuadorans, or Bolivians more inherently revolutionary than Americans?

In light of the current political impasse, perhaps activists should reconsider the case of South America. As I point out in my second book, popular revulsion with free-market reforms succeeded in driving political elites from power across the Andes, first in Venezuela and later in Bolivia and Ecuador. As the old order came crashing down, leaders such as Hugo Chávez, Evo Morales and Rafael Correa sought to capitalize on popular discontent by clamoring for nothing short of a new constitutional order, one which would "re-found" the state to be more inclusive and democratic toward the marginalized and dispossessed.

A Look at the Venezuelan Constitution of 1999

As anyone who's read my other essays will know, it didn't entirely wind up that way and the picture throughout the region, particularly in Ecuador and Venezuela, remains decidedly mixed. Nevertheless, some South American constitutions represent important landmarks in progressive legislation. Take, for example, the Venezuelan constitution of 1999, which allows for so-called "social human rights" such as employment, housing, and health care. Under the legislation, all workers have the right to a decent salary, and the state will even promote and protect economic cooperatives.

In addition, the constitution is very forward and broad-looking on the issue of gender equality, stating that any discrimination which results in lasting inequality must be dismantled, which in practice implies that public policies must be reexamined. Furthermore, there are provisions for recall of any elected officials, which might be of interest to U.S. activists in light of recent efforts to remove Governor Scott Walker of Wisconsin. Under another interesting provision, Venezuela scrapped its bicameral legislature in favor of a unicameral structure which in theory will be more in tune with the country's needs. While some on the U.S. left have argued that it is time to get rid of the Senate, it would clearly take some time for such calls to gain any traction out in the American heartland, however.

Radicalizing Occupy Wall Street

In South America, leftist populists have latched on to the constitutionalist banner yet in the U.S. events have unfolded differently. Indeed, here in this country it is the rightist Tea Party movement, and not leftists, which has adopted patriotic symbols and wrapped itself in the constitution. Perhaps it is time for Occupy Wall Street to reverse this equation and develop its own brand of left populism designed to revive American democracy. It will certainly be an uphill climb, but the American left may not encounter a more auspicious moment to present such radical proposals.

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