The U.S. Constitution

Format Additions

When the forefathers wrote the Constitution, they provided a description of how the U.S. government was to be run.  When it was presented to the states for ratification, it came back stamped "incomplete" -- "Hey, you guys left out an entire section!"  The states refused to ratify the Constitution until another section was added: the Bill of Rights.

Although the Bill of Rights constitutes the first ten amendments to the U.S. Constitution, in reality it's better to think of it as another section.  In fact, it doesn't really make sense to think of it as ten amendments, since the Constitution itself was never ratified without them.  They are therefore part of the original Constitution, not amendments per se.  That's semantics, but I think most Constitutional scholars would agree with the notion that the Constitution consists of three parts: the Constitution, the Bill of Rights, and the subsequent Amendments.

I contend that the Bill of Rights wasn't the only section left out.  If we ever have an opportunity to update or revise our Constitution (as opposed to simply tacking on amendments) or if you're reading this from some country that has just tossed its former government into the sea and is looking for guidance on setting up a constitutional republic from scratch, I suggest a constitution should include the following sections in addition to a formula for government operations and a listing of people's rights:

Applicability:  There should be a section describing whose rights the Bill of Rights protects.  "Why, obviously they protect everyone's rights!"  No, obviously they don't protect everyone's rights.  Convicted criminals have several rights taken away on the basis of their conviction.  Children don't have as many rights as adults.  The mentally incompetent often lose rights.  And foreign nationals either within or without our borders don't enjoy as many protections as U.S. citizens.

I would suggest that the Bill of Rights should be clarified as applying to all natural-born U.S. citizens over the age of 18 who have not had been convicted of a crime or found to be mentally incompetent by a jury of their peers.  Then there should follow listings of exactly what rights excluded groups have.

There should be a listing of rights guaranteed to naturalized U.S. citizens.  I suspect this will be very close to the basic Bill of Rights, but I'd have no problem with dropping a couple of rights such as the protection against unwarranted search and seizure or perhaps even the right to vote.  Immigrants should be very happy to be able to become U.S. citizens even if they don't get full rights; their children born here will get full rights, which is a valuable objective for immigrating.

There should be a list of rights guaranteed to convicted criminals in prison, a list of rights guaranteed to convicted criminals on parole, and a list of rights guaranteed to convicted criminals who have served their time and returned to society -- and I suggest that all of these lists are shorter than the basic Bill of Rights.  Even the convict who has served his time may reasonably be subjected to unwarranted search, and also may reasonably be denied the right to bear arms.  The convict who gets out on parole can reasonably be expected to have to sign a document agreeing to the suspension of certain rights -- such as protection from unwarranted search and the right to bear arms -- as terms of his early release.

There should be a list of rights guaranteed to children -- and it should stipulate ages.  There perhaps should be some rights guaranteed to minors over the age of 12, or over the age of 8, or whatever.  This would be a good place to list the rights of unborn fetuses as well, along with test-tube fetuses, clones, frozen fertilized eggs, whatever.  This section should also spell out the rights of parents, i.e. exactly what leeway they have to restrict or punish their offspring without facing criminal charges or violating their childrens' rights.

Having all of these distinctions spelled out would save a lot of consternation.  The fact that convicts in prison lack rights should be obvious to all, yet we are constantly hearing of convicts bringing lawsuits demanding their rights to use a telephone, see cable TV, whatever.  And, clearly, convicts do have certain rights guaranteed under our Constitution -- such as the right to appeal and protection from cruel and unusual punishment.  But until it is clearly stipulated what rights they lose upon conviction and incarceration, we will continue to get legislation from the bench as one court after another decides the poor little dears aren't comfortable enough in their cells.

Interesting hypothetical question: if the forefathers had listed those groups protected by the Bill of Rights when it was originally written, would they have included blacks and women?


Offense and Recourse:  Another section needed is a set of guidelines for ascertaining when the government is no longer abiding by the Constitution and what the citizens are authorized to do about it.

"We already have the Supreme Court to decide when the gov't isn't abiding by the Constitution."  Yeah, right.  That's why we have an entire slate of Federal drug laws and an entire DEA  responsible for enforcing those drug laws despite the fact that the Constitution clearly reserves regulation of such matters to the states.  Our gov't has run roughshod over several restrictions in our Constitution -- sometimes with the Supreme Court's blessing, other times just not caring about the Supreme Court -- and the citizens feel totally powerless to do anything about it.

Yes, the U.S. government abusing their powers and violating the Constitution should be obvious -- but it's not.  Our forefathers thought it would be obvious, but just to make sure the government didn't get creative interpreting the Constitution they provided the Federalist Papers to explain in excruciating detail exactly why each facet of the Constitution was framed the way it was -- and people today insist on misinterpreting it anyway.  Some Supreme Court justices have actually had the gall and audacity to claim that they were justified in reinterpreting the Constitution as they see fit.

Putting a section right into the Constitution should make it a lot clearer, not to mention giving it the force of authority rather than simply an explanation to be ignored the way the Federalist Papers commonly are.

Perhaps an example would make this concept clearer.  Let's say, for example, that we're dealing with this Constitution with its 2nd Amendment clearly prohibiting the gov't from infringing on the citizens' right to bear arms.  The section on ascertaining that the gov't is no longer abiding by this clause could read as follows:
The following are examples of possible arm restrictions: All of the above constitute "infringement" upon the right to bear arms, and therefore are in violation of this Constitution.
Now, wouldn't that make everything clearer?  Perhaps you might not agree with this (or another) clause of the Constitution, but this level of clarity would help to encourage those who wish things were different to work to change the Constitution rather than ignore it.

OK, so now you know your government is screwing you.  What do you do about it?  Well, as was spelled out in detail in the Declaration of Independence back in 1776, people have the fundamental right to rise up and overthrow governments that are abusing their authority.  U.S. citizens still feel this way, and in fact often demonstrate impatience with the citizens of other countries for not rising up and overthrowing their totalitarian regimes.

But wouldn't it be nice if we could get at the crux of the problem before it reaches the level where violent overthrow is necessary?  Of course it would.  It's going to be tough suggesting a method, though.  First off, allow me to point out what won't work: anything involving a majority vote.  Remember, the majority is usually the problem here.  If the basis for rule was the majority, we wouldn't need a Constitution in the first place.  The Constitution exists to protect us from abuses of government even when that government is elected by the majority of the voters.  Simply put, the Constitution serves to protect the individual from the whims of the majority.

What's really needed is a variation on the Supreme Court with less (to be exact, zero) connections to the other branches of the federal government.  A system by which an aggrieved party, regardless of their political popularity, can have their complaints heard and responded to fairly.  And, this system must have the authority to correct the problem -- to expel elected officials from office, if necessary.

It helps to imagine a group that you really hate -- say, the American Nazi party or al Qaeda or whomever -- and imagine that they have a legitimate beef about their freedom of speech being denied.  If you can imagine a system where these people will get a fair hearing and can actually get action to correct the situation, you have imagined the system we need.

At present, we have no such system -- although the Supreme Court does come close, arguably as close as any institution anywhere has ever come.  The problems with the Supreme Court are, first, that the Justices are appointed by an elected official and confirmed by a building full of other elected officials, so it's politics all the way.  And, second, you have to actually be convicted of a crime to even be heard -- so, by definition, the only people who can seek recourse are criminals.  Honest citizens have no recourse other than to become criminals to force an issue.

The biggest problem, though, is the fact that the Supreme Court has no authority whatsoever.  If you doubt that, try driving through Virginia with a radar detector on the dashboard of your car.  Your radar detector will be confiscated despite the fact that the Supreme Court has upheld the motorist's right to have one.  The Virginia Highway Patrol simply doesn't give a shit what the Supreme Court has to say on the matter, and the Supreme Court lacks the authority to punish or disband the Virginia Highway Patrol.

The United Kingdom, Australia, and New Zealand have a system.  It's called the Queen of England.  People tend to overlook this, but in this day and age of parlimentary rule the Monarch actually has a very important function: if things get too far out of hand, she has the power to disband the government in entirety and call for new elections.  And, yes, she retains that power in Australia and New Zealand despite the independence of those nations.

That power has never been put to use in the United Kingdom -- but it has been put to use in Australia.  In 1975, one senator died and another was appointed to the bench, and -- defying convention -- the premiers of their states appointed replacements from the opposition party rather than from the party in power.  This shifted control of the Senate to the opposition, which promptly refused to pass supply legislation and brought on a constitutional crisis.  Everybody blamed everybody else until the Governor-General, who is the Queen's representative, dismissed the government and appointed a caretaker to run things until new elections could be held.  You can read all about that episode at http://whitlamdismissal.com/.

We in the U.S. don't have a queen, and it's unlikely we'll establish one -- and even more unlikely we'll grant authority to the Queen of England or her representative.  However, the authority to disband government and call for new elections has potential.  Perhaps whatever system or court is set up could have the authority to expel whatever elected official is deemed responsible for abuses of power under his command and call for the election or appointment of a replacement.

Presently, Congress acts with impunity and enacts laws with little regard for whether they violate the Constitution or not.  As far as they're concerned, they do what they think is best (which, of course, means whatever they expect will garner them the most votes in their reelection bids) and if the Supreme Court declares it unconstitutional, well, that's just too bad.  But what if the Supreme Court (or whatever authority we establish) not only tossed the law, but also expelled all the Senators, Congressmen, and the President whose signatures appeared on a piece of legislation that was in clear violation of the Constitution?  Maybe those officials would think a little harder before trampling all over the people's rights.


Secession:  Article IV of the U.S. Constitution states that "New States may be admitted by the Congress into this Union" and "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States".  So, I guess it's possible to secede from the Union; you just need approval from Congress.

If this is truly a "free country", one would think that freedom includes the right of a group of people to decide for themselves that they no longer desire to be part of the nation and to go their own way.  Arguably, it does -- they just cannot take any territory with them.  Individual citizens can renounce their citizenship, but territories apparently cannot.  What would happen if every citizen within a state renounced their citizenship?  They apparently don't lose their rights to own property, since foreign nationals own quite a bit of land within U.S. borders.  So hypothetically you could end up with an entire state full of people who don't claim citizenship in the U.S. and own all of the land within that state -- and it would still be part of the U.S.

I think it would be a good idea for a constitution to include a section on how a territory peaceably secedes from the union.  It should also stipulate how the union is peaceably dissolved; perhaps every territory secedes from it, but perhaps the union may be dissolved by agreement of all territories therein.

Would any state ever actually want to leave the Union?  Well, several did in the 1860's -- but clearly they didn't ask Congress nicely because they got their ass kicked for their efforts.  It's doubtful that any state would seriously entertain the notion today, but having the threat of secession might be just what the federal government needs to keep them from usurping more and more of the states' rights.