Thursday, June 13, 2013

The Conflict Between the Kansas Constitution and the United States Constitution and its Historical and Modern Contexts

In this post, I will look at the conflict between the Kansas constitution and the United States Constitution.  You may be wondering what this has to do with a blog on shared earning/shared parenting marriage?  The Kansas constitution prohibits this type of marriage; the United States Constitution recognizes it.  Also, I grew up in Kansas and am familiar with some of the context there.

In our current political climate, a number of politicians and elected officials with strong connections to Kansas are playing roles in the polarization and paralysis in Washington and in (a) blocking reform of federal tax and benefits structures to recognize 2-earner/2-parent marriages and (b) structuring new programs, and suggesting reforms, that seem to contain the same biases.    These include the Koch brothers, Governor Sam Brownback of Kansas, President Barack Obama and Secretary of Health and Human Services Kathleen Sebelius and Kansas Secretary of State Kris Kobach.  

I suspect part of the problem is that Kansas has a state constitution that needs some amendment to bring it out of conflict with the U.S. Constitution and perhaps to advance the articulation of rights to address issues the U.S. Constitution does not, in order to recognize shared earning/shared parenting families.  At the end of this post, I make a couple suggestions of this kind.

The Conflict

 The Kansas constitution contains a number of positions that appear to be in conflict with the United States Constitution.  These include:

(a)        The Preamble refers to gratefulness “to Almighty God for our civil and religious privileges”.  Does this violate the Establishment Clause of the United States Constitution?

While many state constitutions refer to a higher power, a lot of them don’t make it male, and also none of them refers to “civil privileges” deriving from this identification.[1] 

(b)        The Bill of Rights Section 1 provides “§1: Equal Rights.  All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”  Does this violate the 14th Amendment in giving rights to men and not women (is this thus effectively giving privilege, and not rights, to men)?  When read in conjunction with the Preamble’s reference to “civil privileges” does this violate the Establishment Clause?  Does it violate other provisions of the U.S. Constitution describing rights of Persons? 

It is evident from the drafting and ratification history of the U.S. Constitution that the switch from the term “Man” in the Declaration of Independence to the term “Person” in the U.S. Constitution was deliberate and intended to cover women and men both as Persons.   Moreover, the U.S. Constitution does not use the language of "natural rights" which are often seen as being in conflict with rights established by law (sometimes referred to as "positive rights").  "Natural rights" are often a type of euphemism for a highly subjective interpretation of the "natural world", whereas rights established by law have a basis in negotiated or debated consensus among a variety of people (albeit the extent of the diversity in the representation enacting the law can vary.  There is more background context on this below.[2]

(c)        Article 8 (Militia), Section 1 (Composition; Exemption), provides “The militia shall be composed of all able-bodied male citizens.”  Does this violate the Equal Protection Clause and the Second Amendment, as it would seem to deprive women of the right to defend themselves, as well as to be recognized for efforts in the state militia?

 It may violate other provisions of the U.S. Constitution as well?  Given that the Second Amendment has been read by federal courts to give individuals the right to hold guns, this Kansas provision may also read that only men may hold guns, which may also be in violation of the Equal Protection Clause and the Second Amendment?

(d)        In Article 15 (Miscellaneous), Section 6 (Rights of Women), it provides “§6: Rights of Women.  The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.”  Does this provision violate the Equal Protection Clause in that it allows women to acquire property outside the marriage during the marriage and retain such ownership, but does not explicitly allow this for men?  Or, conversely, does this provision violate the Equal Protection Clause in its implicit view that marital property not specifically acquired by the wife belongs only to the man?   If the latter, state marital property laws that consider as a default all property brought into the marriage during the marriage to be the property of the marriage would be inconsistent with this apparent default rule in the Kansas Constitution?   Does this provision also imply that women are primarily responsible for tending and raising children?  Or does it not address this need that children have?  It speaks of "possession" of children as though they are lifeless objects to be owned, rather than "custody".

This language seems to be derived from the archaic “Married Women’s Property Acts”, which had been in turn enacted to repeal common laws of coverture and patriarchal rights of primacy with regard to children.  The last of these and the similar “head and master” Napoleonic civil code laws were repealed in the 1970s under Reed v. Reed, 404 U.S. 71 (S. Ct. 1971) (holding that the Equal Protection Clause prohibited discrimination on the basis of sex in a marital economic matter) and Kirchberg v. Feenstra, 450 U.S. 455 (S. Ct. 1981) (invalidating the last state "head-and-master" marriage law, a community property law in Louisiana).   

Some of the drafters and ratifiers of the U.S. Constitution appear to have been engaged in civil disobedience of the British (originally Norman Conquest) laws of coverture, however, even back in 1787.  There is more background context on this below.[3]  

(e)        In Article 15 (Miscellaneous), Section 6. “§ 16: Marriage. (a) The marriage contract is to be considered in law as a civil contract. Marriage shall be constituted by one man and one woman only. All other marriages are declared to be contrary to the public policy of this state and are void. (b) No relationship, other than a marriage, shall be recognized by the state as entitling the parties to the rights or incidents of marriage.  Does this violate the 14th Amendment with regard to same sex couples?  The Supreme Court will soon clarify this.

Historical Context of these Provisions:

Kansas Adoption of this Antebellum Constitution.  Kansas adopted its current constitution in 1859-1861 amid the chaos of four competing constitutions and the hypercompetitive violence-promoting Kansas-Nebraska Act “Free State” establishment.  John Brown and other Puritan-based “Beecher Bible” advocates of vigilante violence based in religion, as well as the Jayhawkers,  were active in the state.  

Here is the famous John Steuart Curry mural of John Brown in the state capitol of Kansas which evokes this mentality.   

Brown and other advocates of the Kansas constitution that was ultimately adopted had momentum around the idea that the U.S. Constitution was invalid, at least with regard to its then sanction of slavery, and that Kansans' desire to establish a free state would be in conflict with the U.S. Constitution on this issue with regard to fugitive slaves as well as in broader economic concerns.   

Moreover, they had momentum around the idea that the U.S. government was corruptly interpreting the U.S. Constitution with regard to the Dred Scott decision that all black people, including ex-slaves, slaves, and nonslaves, were not “Persons.”  So, their feeling that they needed to resort to vigilante violence, male privilege, establishment of religion may be understandable given their lack of trust in government and even in the U.S Constitution itself.  Nonetheless, their method and means for objecting to these legitimate concerns violates fundamental principles of the U.S. Constitution, particularly after ratification of the 14th Amendment.

Original U.S. Cultural Conflict on Issue of Gender Equality:

In the United States during the period 1770-1790, there were at least a few predominant cultures: (a) the New England Puritan-based, (b) the Mid-Atlantic Quaker-based, with particular concentration in Pennsylvania, (c) the Southern Cavalier/Slave-Owning, who had immigrated as "second sons" and indentured servants and (d) the Frontier Warrior , many members of which had immigrated from the insecure, intensely fought and constantly-shifting-for-centuries boundaries between the British Isles.[4]  The Constitution reflects influence from all of these, but particularly from the Puritan-based, Quaker-based and Southern Cavalier/Slave-Owning.  The Frontier Warrior culture tends to deny the legitimacy of government altogether.

While the New England cultural reference is to Puritans and the Mid-Atlantic cultural reference is to Quakers, this is being used not to say that these religious views were intended to be established in the U.S. Constitution, but more to describe a set of values of these two regions, which overlapped somewhat but also had important differences, differences that are now very visible in the way the Puritan-based culture of early Kansas were reflected in the state constitution, which then, and especially now, after the adoption of the 14th Amendment, violates the U.S. Constitution.

In the colonial period, the Quaker-based culture saw women as separate people from men, including in marriage.  They also saw children as the responsibility of both parents, not just the mother, and believed in women holding, inheriting and bequeathing and devising personal property, and, in some cases, real property.  Several of the signers and drafters of the Constitution from this culture, such as John Dickinson and Thomas Mifflin, appear to have been engaged in civil disobedience of the Norman Conquest laws of coverture in their marriages.  Thomas Mifflin's wife, Sarah Morris, wrote a letter to a British officer stating that she would rather "die free" than "live as a slave" when her life would thus be worthless. Here is a famous John Singleton Copley painting of Thomas Mifflin and Sarah Morris, for example, that seems to illustrate this, albeit through the lens of New Englander Copley, who may have seen the only alternative to patriarchal (male-dominant) marriage to be matriarchal (female-dominant) marriage (Mifflin looks at Morris, which some historians, such as Barry Levy, see as "matriarchal").   In this portrait, Sarah Morris looks out directly at the viewer at eye level).  

This painting is a contrast from other family portraits of the day, where the woman and children look at, or lean on, the man, who looks out, typically above the viewer, such as this portrait of George Washington and family.

There may also be a political propaganda message in the Morris-Mifflin painting in that the Quaker-populated colonies' objection to the New England Puritan-populated and Southern colonies' advocacy of war as a means for resolving independence with Britain was seen by frustrated New Englanders as the result of supposed "female dominance" of men in that region; in fact, the Quaker-based political economy was still male-dominated if much less so that the New England or Southern colonies.  Mid-Atlantic opposition to war may have had as much to do with the then thriving commerce and innovation of that region, which could be lost in war or if the patriarchal traditions of New England or the South held sway in a new independent nation.  The mythic depiction of this is Quaker Betsy Ross' inventiveness in suggesting the more efficient five-pointed star for the flag.  Ross' role in the design of the flag has never been proven but her life was a typical one of Quaker women, in maintaining an upholstery business through three marriages (she was widowed twice during the Revolutionary War) and raising a number of children.

The Mid-Atlantic had to decide whether it fared better under the protection of a King or Queen who tolerated their colonies' egalitarian ways of equal fundamental rights regardless of gender or race or trying to hold its own in a new country where the other regions had different traditions and agendas.[5]

In reality, the Quaker marriages varied. The "inner light" religious theory of the Quakers could lead to a type of authoritarian individualism, where there is no interaction or negotiation but a recognition of diversity in viewpoints (in contrast to patriarchal religions where there is only one authority in the home or in the society at large) or to a more egalitarian, negotiated relationship.

John Dickinson, a Pennsylvania delegate to the Revolutionary War Continental Congress, refused to sign the Declaration of Independence, which contained the language in Section 1of the Kansas constitution, “§1: Equal Rights.  All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”  Although very interested in independence from Britain, the Delaware Valley Quaker-based culture would not have agreed to this language seeing "natural rights of men".  He was the chair of the committee that then drafted the Articles of Confederation, in which he used only the word "Person", except for references to mustering armies.  By the time the Articles were later converted to the Constitution by James Madison, married to Quaker-raised Dolley Payne Madison, the word "man" was completely gone from the document and only the word Person is used.  Dickinson and his wife Mary Norris also seem to have been engaged in civil disobedience of the laws of coverture, as a letter written by John Adams after visiting them indicates.[6]

Also, single women in the Delaware Valley area had a lot of influence and even under the laws of coverture they had status equivalent to men.[7]   Susannah Wright and Hannah Griffitts, for example, were both politically and economically engaged single women.  The former was a businesswoman, landowner, botanist, paralegal and adoptive parent, the latter a poet who wrote much about politics.   Both were collaborators with signers of the Constitution and other prominent political men.  Wright worked with Benjamin Franklin in resolving a variety of issues at the Pennsylvania frontier with both (a) Native Americans and (b) the Frontier Warrior culture settlers. Griffitts had written public debates with Thomas Paine and was a cousin-in-law to John Dickinson.

The other regional cultures had different views of these issues of gender equality, family structure, female economic and political responsibility and male personal responsibility for children, such as the well known John Adams letters with Abigal Adams indicate, and Thomas Jefferson's secret fathering of children with his slave Sally Hemmings also indicates, however the drafters and ratifiers from these regions did not object to the Constitution being based on "rights of Persons" not "rights of Men", at least not formally in the way some delegates and ratifiers objected to the sanction of slavery.[8]

Of these regional cultures, in the Civil War, the Quaker-based and Puritan-based later became most associated with the Union and the Southern Cavalier and slave-owning with the Confederacy.  The Frontier Warrior fought on both sides; Lincoln is thought to have been heavily influenced in his upbringing by a paradoxical combination of Kentucky Frontier Warrior and Quaker-based cultures, for example.

John Brown was a representative of the New England Puritan mindset, as were many settlers of Kansas Territory, and the Kansas constitution apparently reflects this.

Modern Context:

Since the original U.S. Constitution and the Kansas constitution were adopted there have been a number of amendments and clarifications of the U.S. Constitution as well as changes in factual circumstances. 

These include:

(a)        The 14th Amendment was adopted in 1868. 

(b)        In the 1970s and the 1980s, the last state head and master law was repealed and the U.S. Supreme Court definitively ruled that women were Persons in the U.S. Constitution in a long line of cases such as Reed v. Reed.  The Court established an "intermediate scrutiny" standard for sex discrimination.

(c)        Since 1970, paternity has been provable and now costs as little as $80 to establish, with this cost expected to drop even further due to advances in the sciences.

(d)        In 2013, women now have reached 80% of men's earnings and are getting the majority of college and other advanced degrees.

(e)        Divorce laws now seldom follow the "tender years" doctrine of female primary responsibility for children in applying the "best interests of the child" standard in custody disputes, and alimony is now provided in fewer than 15% of divorces.

The U.S. has not resolved the standing of children with regard to the U.S. Constitution, however, and their rights as well as the rights and responsibilities of parents and the state with regard to them remain a vague area.  The Court in In re Gault, 387 U.S. 1 (S.Ct. 1967), held that children were Persons in the U.S. Constitution with regard to some rights, and in more recent cases, such as Miller v. Alabama, 567 U.S. ____ (S.Ct. 2012), particularly in the criminal context, has noted the developmental distinction between children and adults, but there is little precedent beyond this. 

In the early 20th Century, a number of "Rights of the Child" amendments were proposed to the U.S. Constitution but none were passed.  The United Nations Convention on the Rights of the Child, drafted in the late 1980s before the lowest cost and most reliable methods of proving paternity through DNA were available, has not been adopted by the United States.  So this issue of children's status - and who is responsible for meeting their needs - thus remains vague, which is particularly troubling given how dependent they are for so many years, especially in infancy and preschool years, but even for another 15 years or so after that until they reach adult development. 


Conclusion and Suggestion:

(A) Given all these developments, as well as the basic rights of the U.S. Constitution given to Persons, is it time for Kansas to bring its constitution out of violation with the U.S. Constitution by amending the provisions noted above?  

(B) Perhaps given the principles in our Constitution of adult rights and responsibilities of both male and female Persons, and given changes in science that now allow proof/disproof of paternity, is it time to draft and adopt a rights of the child amendment which clarifies the default rights and responsibilities of both biological parents (which can be transferred to willing adoptive or single parents) and which are based in principles of default equal responsibility of each sex for such responsibilities, rather than based in principles of female primary responsibility?   Parents can contract for another way to meet child's needs if they wish, provided that they meet basic standards for child abuse/neglect, but such a contract has to be express rather than implied.

[1] This chart lists the language in all the various state constitution preambles referring to higher power, divinity, God, etc.
[2] See the section entitled "Original Constitutional Conflict on Issue of Gender Equality and Family Structure".
[3] See the section entitled "Original Constitutional Conflict on Issue of Gender Equality and Family Structure".
[6] See, e.g., Alice M. Hoffman, John Dickinson (1732-1808): Quaker Statesman?, Friends Journal, Nov. 1, 2003. [7] See, e.g., Karin Wulf, Not All Wives: Women of Colonial Philadelphia (2005).
[8] By contrast, the contemporaneously drafted French Constitution of 1789 is built around a concept of "Rights of Man."  Interestingly, the French Constitution produced a series of usurpations from both the left and the right, from the Jacobins, to two Napoleons to Hitler.  These did not happen in the United States. The constitutional court of France still recognizes the "rights of man" preference from 1789 (even after other provisions establishing equal rights, if not equal responsibility, for men and women have been added since the 1950s).