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The U.S. Constitution

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There is nothing flawed in the Constitution. The Constitution means exactly what it says, and it means exactly what it states today as it did in 1787. The beauty and genius of the Constitution is that it is not what liberals call a "Living Document" open to the political interpretations and agendas of the day. It's genius is in its applicability, in its original intent, form, and literalness for all time.

What is more important right now is that we try and establish a philosophical basis within the United States. An Objectivist Political Party would not do very well because the basic philosophy behind it has not become something that the culture accepts, or that the culture is tolerant of enough to have instigated.

Objectivism is not a political school of thought, it is a philosophy. The best one, naturally, but it needs a political conduit. The LP and libertarianism is the perfect political conduit to infuse objectivist thought and rationality into politics and the government. Libertarianism is a political school of thought, which of course, can benifit tremendously through objectivist philosophy. The LP was greatly influenced by the objectivist movement, and many of its founders were followers of Ayn Rand's works. I do wish we could be more harmonious, we'd have a powerful political force, one in which would promote limited government and keep it subservient to individualism and the free market.

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There is nothing flawed in the Constitution.

Sure there is. Taxation is possible, under the Constitution. So is conscription, gun control, the Taft-Hartley act (and the list goes on). This is an extremely significant flaw.

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Sure there is. Taxation is possible, under the Constitution. So is conscription, gun control, the Taft-Hartley act (and the list goes on). This is an extremely significant flaw.

David,

How is gun control possible under the Constitution? It is not. Only through the activism of the judiciary, along with the support of agenda driven, corrupt politicians can this be circumvented. The Constitution is very clear on this subject as articulated in the Second Ammendment. It guarantees the people the right to keep and bear arms. The government has no mandate via the Constitution to impose laws and restrictions on gun ownership. Maybe I should rephrase my argument. In the BoR their is no flaw. Certainly the 16th Ammendment, the 17th Ammendment, and the 18th are flawed, for they usurp natural law and natural rights. They were also illegally and unconstitutionally passed, especially the 16th (with the Taft-Hartley act) That was passed illegally because activist judges and politicians circumvented proper protocols and laws. Incidentally, all these ammendments were passed long after the deaths of our Founding Fathers. Washington, Jefferson, Franklin, Monroe, Madison, Patrick Henry - none of them would have for a moment stood for that.. In reality, the BoR was all the was really intended as for the Constitution.

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How is gun control possible under the Constitution? It is not. Only through the activism of the judiciary, along with the support of agenda driven, corrupt politicians can this be circumvented.

This activism of the judiciary and the corrupt agenda driven politicians is possible under the Constitution. Note that I said that gun control is possible under the constitution, not required. This is a flaw.

The Constitution is very clear on this subject as articulated in the Second Ammendment. It guarantees the people the right to keep and bear arms.
True, but that does not mean that a specific individual cannot be prevented, by law, from owning a gun, nor does it mean that requiring registration of arms (or, waiting periods for the purchase of same, or mandated background checks, or scarlet G's branded into the foreheads of gun owners) is not possible under the Constitution). In addition, only the abolition of all arms for everybody would violate the 2nd. If you think that the statement "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" means that everybody can own a gun, or that any gun can be owned, then you don't understand why the Constitution is flawed. The 2nd can be interpreted as consistent with limiting the type of weapons that can be owned, who may own weapons, and what hoops you have to jump through to own a weapon.

The government has no mandate via the Constitution to impose laws and restrictions on gun ownership.

No, but it has the power. In fact, the only apparent "mandate" is that the government should provide welfare.

Maybe I should rephrase my argument. In the BoR their is no flaw.
If I'm to take the BoR to be the entire document that is "The Constitution", then the flaws rise to the level that "The Consitution" is utterly incomprehensible. The BoR does not require anything of the government, or even say that the government may do anything (such as have a president, or a congress, or outlaw murder). While I agree that the BoR is important in securing what little freedom we have, unless it forms part of a general legal system, it has no actual effect. If your argument is that the Constitution is entirely flawed and that the only hope is to throw the whole thing out and start again, you can go for that argument if you want.

Certainly the 16th Ammendment, the 17th Ammendment, and the 18th are flawed, for they usurp natural law and natural rights.

How do you know that they usurp natural law? I just don't know what you mean by "natural law"; do you mean something like "The laws given by god"? If not, I don't have any idea what that refers to. If you mean "law which I might accept", then we might have problems if we don't agree on what we will each accept as a law.

They were also illegally and unconstitutionally passed, especially the 16th (with the Taft-Hartley act)
I'm not familiar with the evidence that these amendments were adopted in violation of the Constitution: can you explain what laws were broken? I looked and the House's web page which records ratification, and it seems to me that no laws were broken and the basic requirements were satisfied (i.e. it was not imposed by executive decree), but perhaps you have other information that's not present there. A similar question arises with Taft-Hartley: what law was broken? Or are you saying that there is a privision in the law that violates the Constitution (and if so, please do tell! It would be so cool to take that sucker down).

That was passed illegally because activist judges and politicians circumvented proper protocols and laws.

Okay, but you'll need to say more precisely what laws were broken in passing these laws. What proper protocols are you talking about?

Incidentally, all these ammendments were passed long after the deaths of our Founding Fathers. Washington, Jefferson, Franklin, Monroe, Madison, Patrick Henry - none of them would have for a moment stood for that..
You may be right; still, the Constitution and BoR was passed without including a provision that the document could not be modified after the deaths of these men. Since they do provide an unlimited power to amend, and provide a virtually unclhecked power to impose laws, we have to conclude that these clearly bad results are possible given the Constitution. That is, the Constitution does not provide adequate checks on the power of the government. Of course, we understand in hindsight what many of the errors were, and there is no question that the system we have now is better than the tyranny of kings. Still, the Constitution is flawed, because it does not prevent these violations of rights.

In reality, the BoR was all the was really intended as for the Constitution.

If so, that would be another flaw: that the Constitution was actually passed and accepted as a principle of law, when that was not the intent (though intent of whom, is another matter). I find your claim hard to believe since I question your sources on the intent of the governemnt 200+ years ago.

BTW, I recommend Scalia's "Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws", a very readable lecture on why we should not give a fig about intent.

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What specifically is flawed in the US Constitution? Please include Article Section and Clause, if applicable. What would a completely rational and capitalistic Constitution look like? Has anyone ever written one up?

A very interesting piece of writing appeared in this link:

http://www.mega.nu:8080/ampp/

..under the heading "How to Get Things Done"

The author claims to be the founder of "Innovism", which, on the surface, appears to share similar traits with Objectivism.

He has written a detailed and lengthy 'constitution' document.

I am curious to know what Objectivists think about these ideas. The whole web site is a rather deep piece of writing by an obviously brilliant individual who claims to have been in the employ of DARPA and who has seen the ugly secrets of the US government and made a conscious decision to stop abetting the enemy.

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The decision in Kelo vs. City of New London, reminds me that the "takings clause" (Fifth Amendment( is another flaw in the U.S. constitution. I do not blame the founders for not foreseeing the corruption of the 21st century.

The fifth amendment reads:

Private property shall not be taken for a public use, without just compensation.

If one had to reword the clause, one would need to do the following, at the minimum:

1) formulate a principle that would severly delimit the ability of the government to take property, limiting it to emergency/security situations. [There are many jurists who interpret the clause as not applying any limit on what can or cannot be taken (though other parts of the constitution may impose such limits). They see it as concerned solely with compensation.]

2) broaden it to cover not just an outright "taking", but also any forced behavior that might reduce the value of the property. [There was the case of Penn Station where New York City did not let the owners develop it as the owners wanted, because the city planners liked the look of the station just the way it was. They refused to compensate. The court held that this was not a "taking". The opinion of anti-property majority said: "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law".]

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I love the US Constitution, especially in its original form. I think it is very practical if its original intent is followed. I like the concept of federalism. I like the concept of separation of powers. I would not totally scrap it, I would make amendments to it.

SoftwareNerd, how can eminent domain be reconciled with Objectivism? I can see its practical use, when used properly by government, but it is the use of force by the government against innocent individuals. If we can't get rid of it though, I do think you have important additions to clause to keep it from being abused.

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The fifth amendment does not grant the government any power to take private property for any reason whatsoever. It does, however, impose a civil rights limit - just compensation - on any property which the constitution grants the government the authority to seize.

Eminent domain cannot be reconciled with freedom from the initiation of force, because eminent domain is the initiation of force, in every case but emergencies (for clarification on the concept emergency, see "The Ethics of Emergencies", The Virtue of Selfishness, Ayn Rand). Even then, what the government does is to be considered emergency measures, and, after the emergency, all property taken must be returned or just compensation made if the property cannot be returned.

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Are you saying that the fifth amendment is written just fine and does not require to be any clearer?

The amendment has received widely different interpretations by different judges. It is because the wording implies governmental "takings" are okay in some situations without expressly delimiting those situations. It requires judges to use the rest of the constitution to figure out the limits on government "takings".

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None of the amendments grants any additional power to the government. The powers the Constitution grants to the government are clearly delimited within the Constitution, though these limits have since been overstepped.

All the amendments are there to clarify, explicitly, what government does not have the power (or the right) to do. That it does not have the power to do these things is implicit in the fact that the Constitution did not explicitly grant it that power.

They affirm certain individual rights, such as speech, assembly, and press; and they force the government to introduce certain civil rights, such as certain legal procedures. But they do not grant the government any more power than what is explicitly granted within the Constitution proper.

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For all its greatness, there is a fundamental flaw with the US Constitution: it is not self-enforcing.

The founders understood that politicians will create mischief, but they did not adequately handle what to do about it.

There is evidence that, circa 1810 or so, a 13th Amendment (there were 12 at the time, and this was pre-1865) was proposed, which had to do with government officials accepting gifts (bribes?) from foreign countries. One clause in the amendment caused any government official violating it to lose his citizenship.

If the state legislators could impeach members of Congress, that might help. Anything that provided for real penalties when officials (especially judges) violated the US Constitution would help. Maybe it might have stood up better to abuses over the years.

~ zynner

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After the Kelo decision, here's another potential amendment I'm chewing on:

In any case between a government and a private person or entity, a 5-4 decision in favor of the government will be deemed to be a decision in favor of the private person or entity.

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After the Kelo decision, here's another potential amendment I'm chewing on:

In any case between a government and a private person or entity, a 5-4 decision in favor of the government will be deemed to be a decision in favor of the private person or entity.

Even when its a criminal appealing a death sentence he rightly deserved? What if its not so clear-cut between the state and the private entity (Marbary vs. Madison, where government officials were involved on both sides) This is just too arbitrary, and what entity would decide the proper one to fall back on? Another Supreme Court to judge the Supreme Court?

The idea of having the Congress or some other entity able to nullify, or impeach, judges in a close verdict has problems too. First of all, what happens when the judges narrowly get it right? Can we trust the government agencies not to overturn it for the sake of their own power(this same Congress who wants to pass flag burning amendments and welfare programs)? This may just drive the Court to have near-unanimous decisions, even when split, to secure its own authority. When FDR tried to pack the Supreme Court, while FDR suffered politically, the Court got the message and started agreeing with the New Deal in order to preserve their existence.

I think the most practical solution is to have a rational supreme Court, and perhaps stronger Constitutional Amendments to enforce a strict interpretation.

Now, some of my thoughts on the Constitutional Amendments that already exist, and which ones are big problems:

10th- The 10th amendment is great, but its no longer adhered to. If it was, the whole nation would not have its liberty threatened when one group of irrational people seize power in a single state. Instead, we have an all powerful federal government, acting irrationally, beyond the scope of its power.

14th - In theory, a good amendment. Who doesn't want all citizens to have equal rights before the law? In practice, it has allowed the Federal Government to expand its powers in the name of creating "equal protection," which has meant affirmative action programs, welfare programs etc.

16th - I think this is plenty self-explanatory. It expanded the Federal Gov'ts authority to tax.

17th - Had the US Senate been more responsive to the State governments, and given them their proper voice in this federation of states, some of the really stupid, socialistic programs passed in Congress would never have made it through the Senate. That was the intent of the Senate -- separate it from the passions of irrational people, give the states an organ to prevent encroachment on their power and authority. The 17th Amendment destroyed this, allowing "populist" politicians push through social welfare programs and destroy our liberty. This is part of the reason why the 10th Amendment has so little bite these days.

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The 10th amendment is great, but its no longer adhered to.
I agree. In fact, this deserves to be moved right to the beginning of the text -- in the paragraph that comes before the first Article. It should lay the basis for everything else.

The 17th Amendment destroyed this, allowing "populist" politicians push through social welfare programs and destroy our liberty.
I don't understand how the 17th contributed to making the situation worse. Could you briefly explain the status of the senate before this amendment?

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None of the amendments grants any additional power to the government. The powers the Constitution grants to the government are clearly delimited within the Constitution, though these limits have since been overstepped.
I don't understand that argument. I obviously agree that the government has grabbed power which is should nothave; I just don't see any reason to believe that this is inconsistent with the Constitution. Article I Section 8 Clause 1 explicitly gives Congress the power to do almost whatever the hell it wants, and Clauses 2-18, esp. 3, 5, 7 covers anything else. What is an example of a government power that you think is prohibited by the Constitution, except e.g. mandating a state religion, prohibiting any possession of arms by any civilian, or criticising the government?

Following the principle exclusio unius, the clause which says "nor shall private property be taken for public use, without just compensation" implies that the government does have a right to take private property, and puts a restriction on a particular kind of taking -- that if property is taken for a "public use", there must be just compensation. Given that stated protection, it does not at all follow that there cannot be takings for private purposes and it does not even mean that takings for private purposes have to be compensated at all. Sure, no court is going to interpret the takings clause to mean that unfettered and uncompensated private taking is allowed, but that is because of the basic sense of justice that remains with judges, at the moment. The written law does not itself protect property.

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I agree. In fact, this deserves to be moved right to the beginning of the text -- in the paragraph that comes before the first Article. It should lay the basis for everything else.

I don't understand how the 17th contributed to making the situation worse. Could you briefly explain the status of the senate before this amendment?

Prior to the 17th Amendment, the state legislatures selected who would be the Senators for the state. Afterwards, it just became yet another office directly elected by the people.

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The Constitution defines the branches and the powers of the Federal government. The Bill of Rights makes explicit certain individual and civil rights commonly known and expected but not stated explicitly in the Constitution proper.

My point was the government has grabbed power which it is not Constitutionally authorized to have. Article 1, Section 8 grants the Federal legislature certain powers: to finance the Federal government by taxation and by borrowing (but this does not give it the power to finance the States), to regulate interstate and foreign commerce (this power is granted to the Federal government to withhold it from the State governments), to create fiat money, to provide for a post office (but not to outlaw private competition), to promote science and art by implementing patents and copyrights (but not to implement welfare schemes such as NEA), and courts and national defense. This list does not grant the Federal government any statist welfare powers whatsoever except the establishment of a post office, and no statist powers except that of taxation and creating fiat money. Ninety-five percept of what the government does today - farm subsidies, poverty subsidies, public education, public transportation, on and on - is unconstitutional.

Eminent domain is not a power granted to the Federal government under normal circumstances. It is not in the list above. I suspect - look at the third amendment - that it refers to emergency situations such as war. In the case that government does take private property for public use - perhaps a factory to build tanks during an invasion - the Federal government must justly compensate the owner. I am actually at a loss as to why the clause appears in the fifth amendment, tacked on at the end, but right in the exact middle of five amendments dealing with civil rights in the courts.

What kind of eminent domain powers the government does have cannot be found in the fifth amendment, since that only lists a civil right in the case where taking by eminent domain has already happened. The phrase "for public use" is not a restriction at all, since it is merely a clarification of the context: that government needs to use certain property, not that the property is being seized as evidence in a trial (which was the context of the rest of that amendment and the previous one, and also of the next three). Ie, when government takes property to present it as evidence in a trial, it does not need to provide just compensation; but when it takes such property to use, it must provide just compensation. However, what power the Federal government actually has to take private property is not addressed here, and no such power is given to it in the list of powers in the Constitution.

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My point was the government has grabbed power which it is not Constitutionally authorized to have.
Right, and my point is that one of the fundamental flaws of the Constitution is that it does not restrict the government to just a specific and explicitly enumerated set of powers. The welfare clause says that Congress has the power to provide the "general welfare", whatever that is. It's right there in black and yellow -- constitutional authorization for the welfare state.

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Here is a thought-exercise.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

If you had to write a 1 paragraph preamble (noy too much longer than the current one) to an ideal constitution:

1) What principle would guide its writing?

2) What would it contain?

I think the principle behind a preamble would be: lay down the fundamental and overriding principle(s) that guide the rest of the document.

Ideally, the contents of such a preamble would focus on individual rights.

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What's the purpose of a preamble? Why not go directly to The Fundamental Rules? For example, "Rule 1: all government action is validated only to the extent that it protects the rights of individuals"

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Since the preamble stands as something of a summary introduction, it could be viewed as a "first among equals" rule, rather than just the first in a sequence of rules. Ofcourse, it could be explicitly defined as being overriding, and then that would achieve the same purpose.

Come to think about it,it's better to make everything as explicit as possible.

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The preamble has no rules. It is a list of six general purposes of the Constitution and of the government it authorizes, not six powers granted to the government. The "general welfare" clause, far from endorsing the welfare state, simply indicates that part of the purpose of the Constitution is to ensure the general welfare, but only by the means which the Constitution explicitly authorizes the Federal government.

All rules and powers regarding the Federal government are defined within the articles of the Constitution, not within prefaces and not within endnotes. Everything is in its proper place.

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The "general welfare" clause, far from endorsing the welfare state, simply indicates that part of the purpose of the Constitution is to ensure the general welfare, but only by the means which the Constitution explicitly authorizes the Federal government.
Where does it say that? Congress has no explicit power to do anything, because the Constitution does not explicitly say how Congress may do anything. I don't see anything that explicitly says how the rules of Congress are to be created, or that a majority of those casting valid votes is required for a bill or motion to "pass". Did I miss something in my reading?

What's fundamentally wrong with the Constitution is that this absolutely right idea about only allowing a small set of explicitly enumerated powers is not in the document.

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