By legal definition, a contract is “an agreement creating obligations
enforceable by law… The law provides remedies if a promise is breached or
recognizes the performance of a promise as a duty. Contracts arise when a duty
does or may come into existence because of a promise made by one of the
parties. To be legally binding as a contract, a promise must be exchanged for
adequate consideration. Adequate consideration is
a benefit or detriment that a party receives which reasonably and fairly
induces them to make the promise/contract” (Legal Information Institute at
Cornell University Law School). Accordingly, the State of
Illinois has a long list of antedated court rulings upholding the
rights and benefits (contracts) of its public employees.
To possess a right to a promised deferred
compensation, such as a pension, is to assert a legitimate claim with all
Illinois legislators to protect that right. There are no rights without
obligations. They are mutually dependent. Fulfilling a contract is a legal and
moral obligation justified by trust among elected officials and their
constituents.
According to philosopher David Hume, the idea of
keeping a promise depends upon creating rules of justice; that rules of
contracts, for instance, have to be considered morally desirable as well. In
other words, a "contract" or promise between the State of Illinois
and its public employees must be viewed as a moral commitment and requirement
of justice. Justice demands we keep our "covenants" with one another.
In regard to public pensions, keeping an agreement means a concern to promote
the well-being of public employees and the need to secure their rights.
All citizens have rights that must be protected.
When legislators swear an oath to uphold the state and federal constitutions
(Article XIII, Section 3 of the Constitution of the State of Illinois), then
citizens of Illinois and the United States have also acquired the right to
expect that they will uphold that pledge. This is also a matter of important
moral concern for all citizens of a state, for all legal claims will be
validated by a moral framework since the concept of justice is grounded in
ethics. If citizens’ legal rights are abused, then their dignity and humanity
will also be violated. As stated by Alicia H. Munnell, Director of the
Center for Retirement Research at Boston College, Illinois is one of seven
states where accruals are protected, and the legal basis for protection of
public pension rights is under state law (State and Local Pensions).
Like all other citizens, public employees’ legal
rights are derived from past political constitutions, legislative enactments,
and case law. All citizens of Illinois have a fundamental right to oppose a
General Assembly that imposes a violation of their constitutional rights and
earned benefits… According to Laurence Tribe, professor of constitutional law
at Harvard Law School, “Any statute which [is] imposed upon [public
employees]… in order to redistribute resources and thus benefit some persons at
the expense of others [extends] beyond the implicit boundaries of legislative
authority. Such laws…violate natural rights of property and contract, rights
lying at the very core of the private domain” (American Constitutional Law).
Current pension reform is without legal and moral justification; furthermore,
to call it "pension reform" when it is "breaking a
contract" is a fabrication.
“Wherever there is a right, the case is one of
justice and not of the virtue of beneficence… When we call anything a person’s
right, we mean that he [or she] has a valid claim on society to protect him [or
her] in the possession of it, either by the force of law or by that of
education and opinion” (Mill, Utilitarianism).
The significant issue of pension reform is its
attack on public employees’ rights to constitutionally-guaranteed,
earned compensation and the legislators’ obligation to safeguard those
promises. An unconscionable constitutional challenge of those rights and earned
benefits generates a serious threat to their secure sense of worth as citizens
and creates the unfair possibility for an economic disadvantage for a
particular group of people and their families. This can never be legally or
morally justified.
Public employees are promised certain retirement
compensation. It is earned; it is not a gratuity. They expect and plan their
lives based upon these promises. “The very idea that [the state can] hold
[public employees’ lives], or the means of [their] living, or any material
right essential to the enjoyment of life, at the mere will of another ‘has been
thought’ intolerable in any country where freedom prevails” (Locke, Two
Treatises of Government).
State “governments must respect ‘vested rights’ in
property and contract…” (Tribe). We should be able to assume most legislators
in Illinois understand this concept of justice and that lawfulness demands that
people keep their "covenants" with one another. Regarding current
pension reform, no justice is accomplished when subordinating or diminishing
public employees’ rights and earned benefits because of past legislators’
negligence, irresponsibility, and corruption.
All citizens of the State of Illinois have legal
justification for their rights. As stated, the foundation of their rights is
the State and U.S. Constitutions that directly support any claims against them.
State contracts are protected by the federal government. Understandably, the 5th and
14th amendments of the United States Constitution protect due
process of law. The legal basis for protection of past-and-future public
pension rights are established in both constitutions.
John Stevens, legal consultant for the Illinois We
Are One Labor Coalition, stated most recently that “to take away the
Cost-of-Living Adjustment for retirees is not a free and fair choice. It is a
coercive choice under duress.” In other words, duress (or coercion) is a
vitiating factor. Legislators of the State of Illinois are breaching a contract
by forcing public employees to make a choice to diminish their
originally-vested guarantee. They are breaking an enforceable promise, one that
is bilateral and emphasizes an agreement between the State of Illinois and its
public employees as to their future rights and earned compensation. To impair
the obligation of a contract is to lessen its value. "Any law which
changes the intention and legal effect of the original parties, giving to one a
greater and to the other a less interest or benefit in the contract, impairs
its obligation" (115 A. 484, 486). State statutes which do so are
prohibited by Article 1, Section 10 of the United States Constitution.
Any pension reform with a coercive choice offers
public employees no ethical and lawful alternatives except to consent to the
General Assembly's demands by choosing between two illicit choices. It is
unlawful because of the illegitimacy of the General Assembly's advantageous
attempt to renegotiate a constitutionally-guaranteed contract; it is unlawful
to induce undue pressure upon public employees to make an unfair choice; it
is an unjust financial enhancement for the General Assembly because it is a
breach of contract for public employees to receive less than what the original
vested right and earned compensation guaranteed, and it is a blatant
exploitation of influence to obtain an unwarranted advantage.
American moral
and political philosopher, John Rawls, once stated: “Each person possesses
an inviolability founded on justice that even the welfare of society as a whole
cannot override… It does not allow that the sacrifices imposed on a few are
outweighed by the larger sum of advantages enjoyed by the many. Therefore, in a
just society the liberties of equal citizenship are taken as settled; the
rights secured by justice are not subject to political bargaining or to the
calculus of social interests” (A Theory of Justice).
"The notion that, whenever a privilege or benefit might be withheld
altogether, it may be withheld on whatever conditions government chooses to
impose, has been repeatedly repudiated since the mid-20th century...
Unconstitutional conditions – those that make enjoyment of a benefit contingent
on sacrifice of an independent constitutional right – are invalid..."
(Tribe).
Breaking a contract threatens the integrity of all laws that govern and protect
the citizenry, for the values of the United States Constitution (Article I,
Section 10) and the Illinois State Constitution (Article I, Section 16 and
Article XIII, Section 5) are dependent upon the understanding and integration
of all of the articles and amendments in totality. Moreover, American
philosopher, Tom Beauchamp, states: “the strength of the
constitution[s] would not be proven by considering each article or amendment in
isolation from the others” (Philosophical Ethics).
As
citizens, we are advocates of a unification of the Bill of Rights in the United
States Constitution, which protects all of us from any violations of human
rights and contracts, as much as we would wish others to be motivated by a way
of life that is also governed by a complete moral system of
thinking. There are no good reasons for legislators’ attack on public
employees’ rights and benefits and their attempt to equate public employees'
lives to an exchange rate in dollar amounts. The General Assembly cannot
justify pension reform in accordance with fundamental, constitutional
principles of reason and morality.
What
we call rights of individuals is bound up with the theory and precepts of
social and political justice we adopt (Mill, On Liberty). All
citizens of the State of Illinois have legal justification for their rights and
for compensation they have earned, for rights and obligations are
logically correlative, and a citizen’s rights imply or complement the
legislators’ obligation to guarantee them.
The
keeping of promises is the General Assembly’s legal duty. It is something the
United States Constitution requires them to do whether they want to or not.
Unfortunately, many legislators are willing to act without moral or ethical
principles, even though “claims of rights [are] prima facie or presumptively
valid-standing claims” (Beauchamp).
What
is at stake right now is not a potential adjudication of claims that public
employees will have against policymakers who want changes to public employees’
benefits and rights, but to respect the public employees’ contractual and
constitutional promises because they are legitimate rights and moral concerns
not only for public employees, but for every citizen in Illinois: for any
unwarranted act of stealing a person’s guaranteed rights and compensation will
violate interests in morality and ethics and the basic principles of both the
State and United States Constitutions that protect every one of us.
For
that reason, it is imperative that policymakers and stakeholders examine their
own ethical and moral principles and their conduct in view of the fact that
they will have to justify their decisions to the citizens of Illinois.
Certainly, moral responsibility and legal obligation to fund the public pension
systems should not be ignored.
It
is a moral concern and legal duty to reform the state's sources of revenue and
to address the incurred pension debt through restructuring so the state can
provide services for its citizens and fund the public pension systems instead
of incriminating public employees, and thereby forcing them to defend the State
and United States Constitutions. It is the State of Illinois that has the
"primary responsibility for financing the system of public
education" (Article X, Section 1 of the Illinois Constitution), and
the public employees’ pensions are an integral part of “the system of public
education” in Illinois.
There
is no justice in granting financial benefits for the wealthy among us and
attempting to place the burden of financing public pensions upon schools and
taxpayers by Illinois policymakers; there is no justice in granting tax
breaks for wealthy corporations and, at the same time, legislating cuts to
public employees’ and retirees' constitutionally-promised compensation. It is
ethically wrong to perpetuate unfair distributions of debts in Illinois,
especially when Illinois legislators give “undeserved weight to
highly-organized wealthy interest groups, [those groups] tending to ‘drain
politics of its moral and intellectual content’” (Tribe).
“The Pension Clause [Article XIII, Section 5 of the Illinois Constitution] not
only makes a public employee’s participation in a pension system an
enforceable contractual relationship, but also constitutionally protects the
pension benefit rights contained in the Illinois Pension Code when an
employee joins a pension system, including employee contribution rates.
The Clause also safeguards pension benefit enhancements that are later
added during employment. Further, the Clause ensures that pensions will be paid
even if a pension system defaults or is on the verge of default. Finally,
while the Clause bars the General Assembly from adversely changing the
benefit rights of current employees via unilateral action, these rights
are 'contractual' in nature and may be modified through contractual principles.
In sum, while welching on public pension promises is not an option for
Illinois as some legal and civic commentators have suggested, legitimate
contract principles provide a solution to mitigate this crisis” (Madiar, Chief
Legal Counsel to Illinois Senate President John J. Cullerton and
Parliamentarian of the Illinois Senate, Abstract for Is Welching on Public Pension Promises an
Option for Illinois? An Analysis of Article XIII, Section 5 of the Illinois
Constitution).
If policymakers
do not take individual rights and contracts seriously, but prefer to challenge
them in a court of law, then we can assume legislators of the Illinois General
Assembly will not take any of their other laws seriously either. To “let the
courts decide” (Michael Madigan) is a travesty of justice, a costly effrontery
and negligence of a legislator’s oath of office.
-Glen
Brown
Works
Cited:
Beauchamp,
Tom L. Philosophical Ethics: An Introduction to Moral
Philosophy. New York: McGraw-Hill, 1982.
“Constitution of the State of Illinois, Constitution of the United States.”
2011-2012 Illinois Handbook of Government, May 2011.
“Hume’s
Moral Philosophy,” Stanford Encyclopedia of Philosophy Online.
2004, 2010.
Law
Dictionary, 6th edition. Ed. Steven H. Gifis. New York:
Barron’s Educational Series, Inc. 2010.
Locke, John. Two Treatises of Government. Ed. Peter Laslett.
Cambridge: Harvard University Press, 1988.
Madiar, Eric M. “Is Welching on Public Pension Promises an Option for Illinois?
An Analysis of Article XIII, Section 5 of the Illinois Constitution”
Mill, John Stuart. Selected Writings of John Stuart Mill. Ed.
Maurice Cowling. New York: New American Library, 1968.
Munnell, Alicia H. State and Local Pensions: What Now?
Washington, D.C.: Brookings Institution Press, 2012.
Rawls, John. A Theory of Justice. Cambridge: Harvard University
Press, 1973.
Tribe,
Laurence H. American Constitutional Law. New York: The Foundation
Press, Inc., 1988.
Added on May 8, 2015: For Illinois Supreme Court ruling on May 8, 2015, Click Here.
