Constitutional Updates

i.)        Bill of Rights Updates

Problem:         The Bill of Rights has been stretched and twisted over the years, and has failed to address fundamental questions of our times. Many people are surprised how the words have been interpreted by the Supreme Court over the years. Government ambitions to do a through job correcting wrongdoing must not harass and obstruct the law abiding citizen.

Solution:         The Bill of Rights needs a refresher. Over time, the Bill of Rights has been eroded, to the point where it seems general warrants for the government to search all of our papers and effects are now OK. How did we get to a place where the government can “collect” (seize is a better word, since the companies involved don’t really have a choice) our phone records, travel records (toll records), and not violate the fourth amendment? The whole thing needs to be rewritten and updated, and real freedoms need to be emphasized and restored. Of course, this will be a group effort, and must be done with consensus in mind. It is not for any one individual or party to manage. The IParty should develop specific improvements to advocate, but not expect to win on everything. Below is a list of examples to provide a starting point for discussion and to get the ball rolling. By no means are the examples below intended to be a complete statement or last word on this matter.

Examples:

a.)        The Second Amendment states, “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” An honest reading of this would suggest that the people have a right to keep and bear any weapons, including nuclear weapons. The founders were not interested in placing any limits on the people, only ensuring that great limits be placed on the government. The founders were among the same people that kept canon capable of firing 24 pound shots that the king tried to seize in the battles of Lexington and Concord. The founders clearly did not want ANY limits placed on their rights (the rights of the PEOPLE) to keep and bear arms. They considered arms in the hands of the people to be necessary to the security of a free state.

The argument that arms in the hands of the people are just as necessary today as they were in 1792 is supportable by both ancient and recent history. Democracies have regularly reverted to dictatorships throughout history. Just a few examples include ancient Athens and Rome, England after the signing of the Magna Carta, France after the French Revolution, and Germany and Italy in the 20th century. In the 21st century, we are probably witnessing Russia and Egypt lose their brief attempts to form democratic rules. To believe that the United States is immune to tyranny simply invites tyranny to return.

Yes, people will do stupid and tragic things with the weapons in their hands. But people with a government uniform cannot be trusted more than the people without a government uniform. Armies under government command regularly cause more destruction than any criminals ever manage. Imagine a society where only the government has weapons, and the people have none at all. Does that sound like the most safe Utopia you could live in? Is it hard to imagine what will go wrong?

While the IParty should be in favor of expanded weapons rights for the people, it should also be willing to place limits on these rights, so that the right does not literally extend to nuclear weapons, or their chemical or biological equivalents. The rights of people should extend beyond handguns and rifles. Greater scrutiny of potential owners should be allowed for weapons of greater power, with some weapons (nerve gas, nuclear bombs, etc.) entirely beyond the legal reach of individuals not under the command of the government.

Of course, if the people can’t be trusted with a given weapon, why should the people suddenly be trusted when they put on a government uniform? The people should be required to directly approve any weapon the government wishes to build or maintain, but deny access to the people. This is obviously a sticky issue, but it should not be left to the discretion of a few judges to decide. Neither should the government be trusted to secretly decide which massively destructive weapons to build.

b.)        The Fourth amendment right against unreasonable search and seizure has been eroded and degraded in many ways. As one small example, police are allowed to search your home without your consent and without a warrant if they get the consent of someone else living there, even if they know they do not have your consent. Police should be required to get consent from all people living at the residence, or get a warrant. Many of the other ways police and the courts have eroded the fourth amendment should be revisited and corrected.   This is a large topic that needs input from many people.

c.)        Property rights have been eroded by the Supreme Court. A fundamental principle of freedom is the right to own property. Without this right, people become mere subjects of the government. Unfortunately, the Supreme Court severely damaged this fundamental principle in the Kelo v. City of New London decision. See the Wikipedia entry on Kelo v. City of New London. What this means is that corporations and the government can take away your property for just about any reason, and pay some company to decide how much you get for your property. You have no say in whether you get kicked off your property, or how much you get paid for it. The danger is that corporations will overuse this procedure to seize private property with no regard for individual liberties.

Eminent domain is a theory that goes back to the time of kings. The king owns all the land in the kingdom, but lets you use it when he is not using it. It is still his. After the American Revolution, this policy continued, under the theory that the people had seized the king’s land, and now it belongs to the people collectively. They formed a constitution, emphasizing the fact that the People collectively own all the property, rights, and powers, and only grant some limited powers and property to the Federal Government through the Constitution.

The Fifth Amendment does not use the term “eminent domain”, but instead states “…nor shall private property be taken for public use, without just compensation.” Now, the court has stretched the definition of “public use” to include what is essentially a private use. They expanded a limited grant of power to a much greater grant of power. They included a lot of rationale, but the majority, in a 5-4 decision, essentially missed the forest for the trees. As Justice O’Conner wrote in her dissent, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.” This type of power agglomeration is bad for democracy.

Eminent domain should be put back in its rightful place. The people own the land collectively. If land is to be seized for public use, the public should be both privileged and obliged to actually vote on that seizure. It is, after the Revolution, the People’s land. Moreover, seizure of private lands for private use should be banned, to avoid the “tyranny of the mob”.

If the founders knew how their words would get twisted, they would have been more careful. Now, with the benefit of hindsight, we can be more careful. Several states have amended their constitutions to avoid eminent domain abuses. Perhaps an amendment to the US Constitution can be made to follow the best state amendment. Without such an amendment, there is always the danger that the federal government may seize your property despite any state constitutional provision. And if there is any question of whether corporations might be heavy handed and abusive, just remember some corporations are willing to force nuns off their land. Nuns.

There are additional ways in which the Supreme Court has eroded property rights. The Supreme Court has upheld civil forfeiture laws where the government names property as a defendant. See, for example: http://en.wikipedia.org/wiki/Asset_forfeiture  http://en.wikipedia.org/wiki/Bennis_v._Michigan and http://en.wikipedia.org/wiki/United_States_v._$124,700_in_U.S._Currency.  The use of the “rational relation” test in deciding property rights has allowed legislatures to have wide latitude in regulating property rights. According to Prof. John E. Finn of Wesleyan University, it is not much of an exaggeration to say “Property is no longer a significant constitutional liberty. You might as well write it out of the bill of rights.” (Civil Liberties and the Bill of Rights, 2006, The Teaching Company). Over the years, the Court has painted itself into a corner, and needs some help from the people in the form of a Constitutional amendment to free itself.

d.)        The Ninth Amendment needs to be reiterated. It states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court has essentially ignored it. Some Justices have even suggested that the use of the 9th Amendment will lead to the Court to become untethered from the text of the Constitution. Of course, the 9th Amendment is the text of the Constitution, and it was put there for a very good reason. Just because certain rights are specifically enumerated, doesn’t mean that the people don’t have other rights. For example, people have the right to marry and have children. Where are those rights in the Constitution? Virginia tried to outlaw marriage between blacks and whites, for example. Nowhere did the Bill of Rights mention a “right to marry”. Virginia could well have outlawed marriage between Jewish people and Christians, or between people deemed too poor, unintelligent or uneducated to have children. A literalist interpretation of the Bill of Rights, absent a meaningful 9th amendment, could lead a person to believe that Virginia had the right to outlaw marriage, if it chose to do so, or restrict people to having one child. Where does the Constitution say there is a right to have more than one child?

The whole premise of the Bill of Rights is that the people were going to emphatically state that the government can’t trample on rights that governments historically have loved to trample upon. For example, when someone commits a crime, the standard procedure for a government is to put a suspect in a chair and beat them until they confess.  ( “When I want your opinion, I will beat it out of you.” ) The people wanted to emphatically tell the government that, from now on, they would not be allowed to do this (e.g., the right to remain silent), no matter how much they wanted or needed. And, just because the people made a list of rights traditionally trampled on by governments, doesn’t mean that there aren’t other rights retained by the people. Like the right to have more than one child, or to drink beer. Only a further Constitutional Amendment approved by the people’s representatives should be effective to limit the rights retained by the People through the 9th Amendment.

e.)        The First Amendment has been twisted to state that giving money to a political candidate is protected political speech. Regardless of whether this is defensible from the perspective of Constitutional Law, the public policy implications are dangerous. Instead of reasonable limits on monetary campaign contributions, which are defensible from a typical “time, place, manner” analysis that the Court has applied in other free speech cases, the Court seems intent on obliterating any limits at all on campaign contributions, except for the most overt bribery, where the donor must announce he is bribing the politician to change his vote. In cases where the donor gives tons of money and the politician just happens to vote for the interests of the donor, in the absence of the announcement, all perfectly legal. In fact, it is not a legitimate aim for the government to try to stop this kind of wink-and-nod campaign contribution/influence peddling, according to the 5-4 Court majority opinion (McCutcheon vs. Federal Election Commission; see e.g. http://www.oyez.org/cases/2010-2019/2013/2013_12_536).

Without a correction, these decisions will lead to a great imbalance, where corporations and rich people effectively own the government, buying all the “free speech” they want. This is not a balanced approach to an area where different principles conflict. Free speech is not unlimited and an absolute right about which the government can say nothing. It has never been. Why must it be unlimited and completely beyond the reach of government when “free speech” takes the form of “money”? This is just plain wrong.

See also https://movetoamend.org/

ii.)       Commerce Clause Clarification

Problem:         The commerce clause has been stretched beyond recognition. It has been used to justify federal laws to prohibit a grandmother from growing marijuana in her own basement for her own consumption for a medical condition based on the rationale that it affects interstate commerce.  See Gonzales v. Raich.

Solution:         Restate the commerce clause to avoid having the government intrude into private lives under the guise that some activity “affects interstate commerce”. If it is not actually interstate commerce, it should be left to the states for regulation.

At the same time, the interstate commerce clause has not been effectively used on genuine issues of interstate commerce to create systems which reduce or eliminate pollution and waste. For example, food packaging and distribution causes great problems of food contamination, waste, and environmental pollution. Packages are not reused, but thrown away or “recycled”. No national system that would solve a great many problems has been implemented. For example, regulations requiring the use and reuse of glass food containers and their carriers (boxes) would reduce pollution and food contamination by the leaching of chemicals into products in contact with the plastic container. In order for this to be economical and effective, it must be a regulated free market, where standards are specified, but industrialists are allowed to innovate and complete to produce the most efficient and economical product. Plastic may be convenient and efficient, but it is difficult to reuse, requires chemicals that leach into foods. Glass is inert; it does not leach into food or the environment. It is made of sand, which is everywhere and cannot be considered a pollutant. It is very simple chemically and does not need to be broken down at the chemical level. However, glass breaks into dangerous shards, and is energy intensive to form. It is not a panacea, but could be used to solve significant problems with the current system. Plastic may still have a role, for example, as a protective coating on the outside of reusable glass containers, to form crates and boxes to carry the containers, and in other ways.

Here is an example of a regulated food distribution system:

Thick, reusable, standardized glass containers become the food distribution packaging of choice. These are used for beverages, canned goods, dry goods, dairy, meats, etc. Reusable standardized crates are developed to deliver the foods from the producers to the retail stores, and other standardized crates are used to transport the foods from the store to and from the end user, for example to and from a home or restaurant.

The glass containers have an identification tag embedded into the wall of the container to allow tracking of the container, and to monitor the service life. The container may have a rubber or plastic seal between the lid and body of the container. The containers may be of several standard sizes and shapes, designed to cooperate with each other.

Certain foods would be exempted if it could be shown that they cannot be accommodated by the system. For example, raw eggs still in their shell may be problematic for this type of system. For these foods, a single use container might be devised that is completely mulch able. In less densely populated areas, people would be encouraged to mulch their waste, rather than have a garbage truck collect it. In more urban settings, mulchable waste could be collected separately.

Despite the expense of the new system, for example the cost of the production of the containers, and the increased cost to ship food in those containers, it would be offset by savings. This system would cut down on the plastic bottles we see by the side of the road, the plastic bags that blow everywhere, and ultimately form a soup of plastic in our lakes, rivers, and oceans. It would also decrease spending on single use plastic food packaging, garbage trucks, garbage transfer stations, landfills, and recycling.

iii.)     Digital Rights and Right to Encryption

Problem:         The government has classified encryption as a weapon, and forbade export of encryption technology without approval by the government. The federal government has actively sabotaged encryption that people use for banking on the internet so that the government may more easily spy on citizens.

Solution:         The right to encryption should be enshrined either in the law or the Constitution. Encryption is one of those “trust but verify” issues. You can trust people to not read your private documents; you can trust them even more if the documents are competently encrypted.

iv.)      Balanced Budget Enforcement

Problem:         The Federal Government is building up a huge, potentially catastrophic amount of debt.

Solution:         Warren Buffet’s rule should be adopted into the Constitution. “When an annual deficit rises above 3% of GDP, no sitting legislator or president shall be eligible for reelection.” The annual deficit should be determined by a body independent of the Executive/legislative branch. Any IParty member elected to Congress must commit to introducing legislation to encourage balanced budgets. See also section D, paragraph i.).

v.)        General Right to Privacy

Problem:         Privacy is under siege in the U.S. Personal dignity and security requires privacy. Freedom of the press and political dissent will be suppressed without privacy.

Long Term Solution: The right to privacy should be expressly enunciated in the Constitution. The right of privacy should constrain both governments and corporations from amassing and disseminating personal information without authorization from the individual. This is not a simple issue, and should be carefully developed by the IParty collectively. There are several privacy interests, including family associations, sexuality, medical, and personal. The Supreme Court should not be required to divine which of these privacy interests it should enforce using the 9th amendment or “due process”.

Shorter Term Solution:          The IParty should support candidates committed to privacy and to restoring laws and policies that promote privacy. The argument that “I’ve got nothing to hide,” must be debunked and defeated. (The right of privacy, while it is a personal right, confers a collective benefit of protecting reporters, political dissenters, political opposition, activists, and other people whose privacy is necessary to the security of a free state.)

vi.)      Right to Medical and DNA Privacy

Problem:         Medical data is increasingly important and available, but not protected by right. The Congress could change the law at any time.

Solution:         The right to keep medical data private, and in particular, DNA information, should be enshrined in the Constitution.

 

vii.) Right to Sexual and Reproductive Privacy

Problem:         The Federal and State governments continually intrude upon the sexual and reproductive freedoms of the people, because no such freedoms are enunciated in the Constitution, and the 9th Amendment has not been effective in preventing these intrusions.

Solution:         Further amendments enunciating the rights to sexual privacy and reproductive privacy should be enacted. Two of many possible examples follow.

a.)        A constitutional amendment might try to capture the following. “The right to terminate a pregnancy at the discretion of the mother up until the time of the natural viability of the baby shall not be infringed. The right to terminate a pregnancy for reasons of grievous genetic or health defect of the baby, the substantial increase of risk to the health of the mother, or in cases of rape and incest shall not be infringed up until the time of the birth of the baby. Natural viability is the time at which the baby can survive with natural feeding and clothing.” This would end the uncertainty and long term variability about when termination of a pregnancy is legal. It also protects the interests of the parents to refuse unwanted medical intrusions on them or their children. In other words, this amendment prevents the possibility of a state at some time in the future declaring that it could get a fetus to survive, through medical interventions, after just four weeks of pregnancy, and therefore banning all abortions after four weeks. Such a fetus might only be saved for a live of suffering and diminished capacity, but allow the state to ban abortions after four weeks because the fetus is “viable”.

b.)        Example text: “The right of consenting adults to engage in intimate (sexual, romantic, and otherwise loving) activity and partnerships shall not be infringed, and private communication shall not be accessed, intercepted, collected, stored, or otherwise made available to the state unless the state demonstrates that a compelling health or liberty interest of the people outweighs the collective individual rights of consenting adults.”   The real need for the state to intrude upon these matters is minimal. It is highly unlikely the state has any practical ability to make a society better by intruding in these matters. Yet the potential for abuse of the system by government intrusions here is real and substantial.

viii.)    Voting Process Reform

Problem:         The one person one vote system does not do a great job at capturing the intent and will of the voter. Many times, voters feel that they must vote for their second or third choice because if they vote for an unpopular candidate, they will be throwing their vote away. People often do have first, second, and third choices for an office, and not allowing them to express those choices fails to fully capture their intent.

Solution:         The method of choosing all representatives should be changed to an instant runoff system. In this method, generally, a voter is allowed to pick a number of choices for election to office. They can write down a number of preferences:

1. Candidate A

2. Candidate B

3. Candidate C

                        (etc.)

When the votes are tallied, candidates with the lowest vote totals, and no possibility of winning, because they are not any choice on a majority of voters lists, are eliminated. Then, the votes are totaled with that candidate eliminated, and the priorities of anyone who voted for that candidate adjusted. If still no candidate has a majority, then another candidate on the low end is eliminated. This continues until one candidate gets 50% of the vote. There is also a possibility that the candidates could be eliminated until some maximal percentage and/or supermajority is reached. This should be researched by the IParty to determine the optimal rules and methods to implement an instant run-off system.

ix.)      Clarification of Fundamental Constitutional Rules

Problem:         The Constitution fails to address many fundamental issues.

Solution:         The fundamentals of the Constitution should be explained better. The inherent incompleteness of words and laws should be mentioned. For example, it is understood that words are imperfect and incomplete expressions of intent. Latent ambiguities in every word can be identified by anyone with experience in the practice of law. We cannot therefore create a perfect Constitution or set of laws which spells out how we should act in all situations. For this reason, no right can be absolute, because in some situations it will conflict with another right. For example, the right to free speech, when used to yell “fire” in a crowded movie theater when there is no fire, conflicts with the basic rights of life held by others. Explaining this fundamental rule and others would clear up misunderstandings and adjust the expectations of the people appropriately.

x.)        Abolish the Electoral College

Problem:         Under the current system, it is possible that a majority of voters vote for one candidate for president, but another candidate not having the majority of votes is elected.

Solution:         Abolish the Electoral College, and elect the president by direct popular vote. The Electoral College may have made more sense in the days when travel and communication was limited by sailing and horseback. It makes no sense to retain it. It distorts and confuses the election system with no identifiable benefit. It makes the results of the election less credible. It could make a contended outcome even more volatile and contentious. In a close election where this system matters, no one can really say in advance whether they will be a “beneficiary” of a distorted electoral outcome. Does anyone really want the party they oppose to win an election that way? It could happen, unless the Electoral College is abolished.

xi.)      Right to Attorney/Client and Doctor/Patient Confidentiality

Problem:   The right to confidentiality when consulting an attorney or doctor has not been expressly established in the Constitution. These rights should be plainly stated, as they are fundamental and important rights which are always tempting for governments to trample. When peoples’ rights are denied, even when they are very bad people, it means that no one else can trust that what they say to doctors or attorneys is confidential. Everyone is punished because a small number of people behave badly. Moreover, the punishment only gets a few people at one time, because thereafter, people will know they must keep secrets from doctors and attorneys. The benefits of confidentiality (including the most effective legal advice and medical treatment based on complete information) will be ruined for all time for a one-time convenience.

Solution:   Amend the Constitution to define and include these rights. The IParty should use a deliberative process to identify the range of alternatives, and vote on the best solutions.

xii.)     Change the Constitutional Amendment Process.

Problem: A small percentage of the population can be effective to make it nearly impossible to amend the Constitution. Justice Scalia recently remarked that just two percent of the population could thwart a constitutional amendment. Justice Scalia further remarked that amending the Constitution should be hard, but not as hard as it is.

Solution: Amend the Constitution to allow for ratification by a 75% vote of the people during a presidential election as an alternative to ratification by 75% of the states. The IParty should use a deliberative process to identify the range of alternatives, and vote on the best solutions.

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