Editing the governmental contract? Don’t forget obligations | Opinion

William Lyons
Updated ·4 min read

Elections are about who wins, and then who governs. Elections determine how we, as a society, resolve divisive issues. The issue divide, mirrored in the personality divide, is deep. We can all look forward to millions of conversations over the next year and a half. We’re obliged to make them productive.

Most of the conversations can be reduced and reframed as “Should the contract between citizens and those who govern be rewritten? If so, how?” This contract is grounded in fundamental rights, either those guaranteed in the Constitution that limit government interference or those that are the product of legislation that require government action.

The Bill of Rights protects expression, exercise of religion, free assembly, the right to bear arms, the right to due process and, thanks to the 14th Amendment following the Civil War, guarantees each person equal protection, or equal treatment by government at all levels.

Diaper Connection employee and volunteer recruiter Renee Watkins carries diapers to be packaged at the Nashville Diaper Connection warehouse May 15 in Nashville. Tennessee could soon become the first state in the nation to offer two years of free diapers to low-income mothers on TennCare, the state’s Medicaid program. Funding for the program was included in Gov. Bill Lee’s budget for the fiscal year starting July 1. The Nashville Diaper Connection is a nonprofit that has been working to provide free diapers to help families before the state funding was available.

Gun and abortion rights shape our political landscape

These rights are enforced by the courts, serving as referees, when government actions, either through passage of laws or administration of those laws, fail to stay between the guardrails. Dozens of decisions shape these protections. Two relatively recent decisions help shape today’s political landscape. Do we have a constitutional right to bear arms? Yes. Is it clear what these terms mean? No. That’s why we have the Supreme Court,

Is there a right to privacy that limits what states can do to regulate abortion? There was between 1973 and 2022. However, last year’s Dobbs v. Jackson Women's Health Organization decision freed states to pass whatever laws they wished to regulate abortion. Here the court opined that women’s right to an abortion was not in fact embedded in an implied right that their predecessors had found a half-century earlier.

Another decision set the boundaries for what states could do under the Second Amendment. The Heller v. District of Columbia decision of 2008 put guns in the home under the protection of the Second Amendment. It also made clear that states could legislate some limits on firearms. In 2022 it made clear that the Second Amendment also protected carrying guns in public and narrowed the discretion of government officials to regulate this practice.

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Obviously there’s wide disagreement on gun and abortion rights. States have some discretion on the former and a lot of discretion on the latter. The decisions are now in the legislative arena, including in Tennessee, where Gov. Bill Lee has called a special session of the General Assembly in August to discuss limiting gun ownership by those experiencing mental health challenges. The legislature already stepped in to outlaw almost all abortions.

What are the government's obligations on health care and housing?

The second notion of rights places requirements on the government to provide the basics of life. It’s not protection from government. Rather it implies more government. It isn't part of the fundamental contract outlined in the Constitution. It’s part of a contract being constantly updated, reflecting changing beliefs and legislation. We’re still creating and extending the latter by majority votes by lawmakers.

Is health care a right in the United States? It’s not mentioned in the Constitution. But it is close, embedded in legislation for decades. It began with Medicare for the elderly and Medicaid for those with low incomes and special health challenges. Then the Affordable Care Act greatly expanded the affordability to multiple millions. There’s not a consensus for Medicare for All or a single-payer system.

In some jurisdictions there is an implied right to overnight shelter. What about housing? Is something more permanent a right? Again, not really. But the rapid rise in rents and home prices and homelessness points to the need for a serious rethinking and policy rewind.

In his “Book of Obligations,” Richard Haas notes the critical importance of the public’s keeping informed and engaging respectfully in the democratic process. Courts cannot enforce such obligations. They’re impossible to mandate through legislation. They need not remain the afterthought they have become. We’re obliged to be responsible participants in the contract negotiations.

William Lyons is Director of Policy Partnerships for the Howard Baker Jr. Center for Public Policy and Professor Emeritus of Political Science at the University of Tennessee. He also served as Chief Policy Officer for Knoxville Mayors Bill Haslam, Daniel Brown and Madeline Rogero.

The views and opinions expressed are those of the author and do not necessarily reflect the official policy or position of the Howard Baker Jr. Center for Public Policy or the University of Tennessee.

This article originally appeared on Knoxville News Sentinel: Opinion: Editing the governmental contract? Don’t forget obligations