By Irami Osei-Frimpong (February 13, 2018)
The basic problem is that our rights were conceived with property owning white men in mind. These rights presupposed economic security and independence. Security and independence came in the form of property. And that’s why the Constitution is primarily concerned with securing property rights. Also the exercise of rights relies on the collegiate fraternity of white men, but I’ll consider this later.
When you start formally extending rights to dependent women, how do you secure the independence of their actions in exercising those rights, i.e., how free can you be if you are economically dependent on a guy who is threatening to kick you out if you speak out? Furthermore, even if you do become economically independent, these rights presuppose a balance of power, so how can you exercise them if men clique up against you, to, for example, lock you out of the press. Again, remember that you are fighting both economic dependence upon and the fraternity of white men.
This set of problems births the need for family law, and if we had thought of how we baked in the presuppositions of economic independence and white fraternity from the beginning, family law would have more robust constitutional protections, so that the government secured free and equal relations between spouses (and the economically dependent spouse and society) the way it secures free and equal relations between property owning white men.
A similar set of problems emerges when we talk about extending rights to employees who are economically dependent upon their employer. How free can you be if you can be fired for speaking out of turn? The Founders were worried that employees would be used as tools of their employers. They were right to worry about this. But they were wrong to use that as a reason to deny employees political power. Once again, the particular social position of the Founders skewed their conception of rights, so if you are going to constitutionally secure the economic foundation for the exercise of rights for property holding white men, that is, property rights, then you have to constitutionally secure the economic foundation for employees, also, protect employees from the collusion of the fraternity of white male propertied employers. This is why you need worker and organized labor protections in the constitution if you expect workers to ever be able to exercise their other rights. This is why we have property rights in the constitution because we DID expect white property holders to exercise rights.
Now you have black people who are both without property and without the fraternity of whiteness, and more pointedly, whose inability to exercise their rights is directly tied to their economic and political dependence, rendering them targets for exploitation by property owning white men and their auxiliaries.
The question is always going to turn on how do we constitutionally secure the ability to exercise rights for everyone, including women, the property-less, and non-white people, the way we constitutionally secured the ability of propertied white men to exercise rights.
The analogy I used was fighting so hard to get into a poker game, only to find out that you can’t afford the ante. Then fighting so hard to get the ante, only to find out that the other players are colluding against you because they’ve known each other for so long.
So in order to actually play the game you need to both have the ante (economic security) and protections against collusions/cliques of the other players.