The U.S. Constitution
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
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
from some country that has just tossed its former government into the
and is looking for guidance on setting up a constitutional republic
scratch, I suggest a constitution should include the following sections
in addition to a formula for government operations and a listing of
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
rights. Convicted criminals have several rights taken away on the
basis of their conviction. Children don't have as many rights as
The mentally incompetent often lose rights. And foreign
either within or without our borders don't enjoy as many protections as
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
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'
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
Putting a section right into the Constitution should make it a lot
clearer, not to mention giving it the force of authority rather than
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
abiding by this clause could read as follows:
The following are examples of possible arm
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.
All of the above constitute "infringement" upon the
right to bear arms, and therefore are in violation of this Constitution.
- The gov't requires a license to bear arms.
- The gov't outlaws ammunition.
- The gov't outlaws particular types of arms.
- The gov't prohibits bearing of arms in particular
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
of Independence back in 1776, people have the fundamental right to rise
up and overthrow governments that are abusing their authority.
citizens still feel this way, and in fact often demonstrate impatience
the citizens of other countries for not rising up and overthrowing
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
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
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
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
The problems with the Supreme Court are, first, that the Justices
are appointed by an elected official and confirmed by a building full
other elected officials, so it's politics all the way. And,
you have to actually be convicted of a crime to even be heard -- so, by
the only people who can seek recourse are criminals. Honest
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
will be confiscated despite the fact that the Supreme Court has upheld
motorist's right to have one. The Virginia Highway Patrol simply
give a shit what the Supreme Court has to say on the matter, and the
Court lacks the authority to punish or disband the Virginia Highway
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
was appointed to the bench, and -- defying convention -- the premiers
their states appointed replacements from the opposition party rather
from the party in power. This shifted control of the Senate to
opposition, which promptly refused to pass supply legislation and
on a constitutional crisis. Everybody blamed everybody else until
Governor-General, who is the Queen's representative, dismissed the
and appointed a caretaker to run things until new elections could be
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
or her representative. However, the authority to disband
and call for new elections has potential. Perhaps whatever system
or court is set up could have the authority to expel whatever elected
is deemed responsible for abuses of power under his command and call
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
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.
does -- they just cannot take any territory with them. Individual
can renounce their citizenship, but territories apparently cannot.
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