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The U.S. Constitution

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What specifically is flawed in the US Constitution?

1. There is no "axiom" to the effect that the sole function of government is the protection of individual rights.

2. There is no requirement that (when created) laws be explicitly justified or that (when interpreted) they be interpreted with reference to that axiom.

3. Rules of interpretation, or at least metarules, should be incorporated in the Constitution itself, and should be restricted to defining proper interpretation according to the function of government, and objectively justified principles of disambiguation.

4. In numerous places, direct or indirect sanction is given to improper functions of goernment (e.g. 1.7.1: "All Bills for raising Revenue shall originate..." which asserts that bills for raising revenue are within the scope of the government; 1.8.1: "The Congress shall have Power To lay and collect Taxes" says so blatantly, the Commerce clause 1.8.3: "To regulate Commerce..." -- pretty much every word of section 8. The worst is the Welfare clause, 1.8.1, which also includes "provide for the common Defence and general Welfare of the United States".

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A problem resulting from #1 of the above list is that there is nothing restricting the government from the function of promoting ideas. The 1st Amendment only guarantees us freedom of religion, saying that Congress may pass no law "respecting an establishment of religion". Government can still constitutionally promote a religion, because promoting is not equivalent to legislizing. It needs this right, otherwise schools would be unconstitutional, because promoting ideas is exactly what schools do!

Of course, courts have reinterpreted the 1st Amendment to fully separate church and state, which inevitably created a firestorm of controversy. Technically, religion should be allowed everywhere in government as long as it doesn't make that religion law. Secular or otherwise non-Christian people (rightfully) saw this as a problem, so they changed it. This "culture war" is totally unreconcilable as long as the Constitution remains the way it is.

Question to anyone: Is it legally possible to add an amendment specifying that the role of the government is to protect individual rights? Would it be impossible because it contradicts all the statements DavidOdden quoted in #4 of his list?

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As to the second part of my question: has anyone written up a rational constitution? Shouldn't Objectivist's have one prepared just in case.

When two parties are opposing and one offers no alternative and the other side offers one, even a suicidal one, the people will go with the side with the idea.

This means Objectivist's should have a constitution written up ready to take the place of our current Con.

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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.

Also, ANY political party that ran currently with its own constitution and spoke of replacing the new with the old would most easily never get voted in.

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THE NECESSARY AND PROPER CLAUSE! Article I, Section 8, Clause 18:

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

This has basically allowed Congress to do whatever they want without changing the Constitution in any way. It has allowed for the creation of Welfare, Social Security, Medicare and Medicaid, etc in conjuction with the general welfare clause. It has allowed the creation of the Federal Reserve in the case McCullogh vs. Maryland and in conjunction with the coin money clause. It has allowed the creation of all regulatory bodies in conjuction with the regulate commerce clause. Basically everything Objectivists would consider an improper function of government has come through this clause.

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A problem resulting from #1 of the above list is that there is nothing restricting the government from the function of promoting ideas.

That would emerge from the interaction of 1 and 2: promoting ideas is not protecting rights, therefore a law putting government in the position to promote ideas fails the purposive justification test.

The 1st Amendment only guarantees us freedom of religion, saying that Congress may pass no law "respecting an establishment of religion". Government can still constitutionally promote a religion, because promoting is not equivalent to legislizing. It needs this right, otherwise schools would be unconstitutional, because promoting ideas is exactly what schools do!

That is more or less the point of 3. The wording of the First is somewhat unclear and we don't have clear guidance as to whether "promoting" constitutes "establishment". 2 requires justification referring to 1, and you just cannot construct a coherent argument that the promotion of religion protects individual rights.

Question to anyone: Is it legally possible to add an amendment specifying that the role of the government is to protect individual rights? Would it be impossible because it contradicts all the statements DavidOdden quoted in #4 of his list?

You can add anything to the Constitution and the beauty of is is that an amendment cannot be declared unconstitutional, and thus has absolute power except insofar as the Constitution can actually be ignored by judges if they want. Such an amendment would force the Commerce clause and the Welfare clause to be narrowly construed. The basic principle is that the Constitution is supposed to be interprerted as a noncontradictory document, so that in case one part of the document appears to contradict another, both parts should be interpreted in some way that avoids contradiction. Blatent contradiction is possible, in which case chronology rules (i.e. you can change and revoke parts of the Cnstitution by amendment).

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As to the second part of my question: has anyone written up a rational constitution? Shouldn't Objectivist's have one prepared just in case.

I think all Objectivists could ever want in a Constitution could be summed up in a single grand Amendment. It would state as an axiom what powers the government is restricted to, require that all laws abide by it, and establish objective rules to interpret it (as David said). That alone would subsume many individual laws (like those in the Bill of Rights) and abolish others (like Congress' power to collect taxes). Ideally, the rules for lawmaking and governing (which are now in the first several sections of the Constitution) would probably come afterwords, since they are laws that must abide by the axiom.

I imagine an exact copy of the Amendment and a few lawmaking/governing laws sprouting out of it could be forcefully established as the Constitution of whatever nations we occupy in the future, just as MacArthur and his team forced an American-inspired constitution on Japan. Of course, the fact that Islam was allowed to be written back into Iraq's Constitution shows that this could not happen in today's political climate.

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I think all Objectivists could ever want in a Constitution could be summed up in a single grand Amendment. It would state as an axiom what powers the government is restricted to, require that all laws abide by it, and establish objective rules to interpret it (as David said). That alone would subsume many individual laws (like those in the Bill of Rights) and abolish others (like Congress' power to collect taxes). Ideally, the rules for lawmaking and governing (which are now in the first several sections of the Constitution) would probably come afterwords, since they are laws that must abide by the axiom.

I imagine an exact copy of the Amendment and a few lawmaking/governing laws sprouting out of it could be forcefully established as the Constitution of whatever nations we occupy in the future, just as MacArthur and his team forced an American-inspired constitution on Japan. Of course, the fact that Islam was allowed to be written back into Iraq's Constitution shows that this could not happen in today's political climate.

I'm not talking about a political party, I'm just saying that Objectivist's (rightly)condemn the US constitution as flawed by contradictory values. I'm just waiting until someone says "well if it that bad what would you all do instead?" that is when i could present them with the rational US constitution.

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I've been thinking of writing one myself.

The current document's primary flaws in my eyes:

1. No definitions (with one such omission meriting its own entry below).

2. No direct codification of the purpose of government, referenced and reinforced in the "default" clause (that's the "any powers not hereby delegated" clause, which catches all unforseen possibilities... this is currently the Ninth and Tenth Amendments)

3. No "Consent of the Governed" clause dealing with the delegation of the right of retaliatory force, and the circumstances delineating the limits of the Government's moral authority to wield force. Here would be codified the inalienable rights of the sovereign individual, the moral authority by which the new Government is formed, and just as importantly, the principles and tests by which the Government can be considered forfeit of said authority. This is the "secession" clause some thought should have been written into the original Constitution, but geared to the secession of the individual rather than the states.

4. The failure to define "the people".

From what I've read so far, the Founders did not see the necessity for defining exactly who "the people" are. I ascribe this to the limitations of the state of the political art in 1776. At the cusp of the Enlightenment, they could not anticipate the coming of the Left and their introduction of fundamental collectivism. With our added two centuries of history to draw upon, it is all too clear why "the people" as a collective and "the people" meaning the sovereign individual MUST be sharply distinguished, by use of specific terms if necessary.

Related to this is the nasty conflation of "the people" with the states, the most egregious example being the Tenth Amendment, which sets the states and the people on one side versus the federal government on the other. The rational Constitution would only distinguish between all governments on one side and the sovereign individual on the other, with the division of powers handled in derivative clauses further downstream. While this is in part due to the particular historical circumstances surrounding the establishment of the United States, the idea of federation needs to be more tightly subordinated to the recognition of individual sovereignty.

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Here is a model Constitution from Lindsay Perigio over at SoloHQ so don't expect too much. There are some good points to it and some bad as when capital punishment is specifically outlawed.

http://www.freeradical.co.nz/content/constitution/index.html

He does away with the presidency and has the executive power vested in three 'Tribunes'. He also does away with local government.

Whatever its flaws it does provide a good model for some here that are interested in writing their own version of an Objectivist Constitution.

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  • 2 weeks later...

I think all Objectivists could ever want in a Constitution could be summed up in a single grand Amendment. It would state as an axiom what powers the government is restricted to, require that all laws abide by it, and establish objective rules to interpret it (as David said).

However, language is inherently inobjective. Terms change meaning over time. Phrases mean different things to different people. Judges take different views on how to construe the terms of a statute. Making rules of interpretation means interpreting the rules of interpretation themselves, which leads to the same problem as before.

alone would subsume many individual laws (like those in the Bill of Rights) and abolish others (like Congress' power to collect taxes).

Where exactly does the money for the government come from?

- Josh

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However, language is inherently inobjective.

Have you read Introduction to Objectivist Epistemology? If not, I suggest you do before making claims such as this here again. If so, would you care to give an argument to refute the entire point of that book, rather than just asserting the opposite?

While most of the things you listed as evidence of this claim are to some extent true, that does not prove that language (i.e., concepts) is inherently "inobjective."

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Have you read Introduction to Objectivist Epistemology?

Nope, I'm moving forward through the history of Western thought. As such, I get to Ayn Rand when I get to the 20th century. I just finished Aristotle (at least, most of his major works).

If not, I suggest you do before making claims such as this here again.  If so, would you care to give an argument to refute the entire point of that book, rather than just asserting the opposite?
An objective definition of language would mean that every linguistic sound has an objective meaning. People who use an objective theory of math say that the concept of two (not necessarily the word "two" but the concept) can only refer to a thing and an additional thing and nothing else. People who use an objective theory of value say that every item has an unchanging, predefined value. If someone wants to use an objective theory of language, each linguistic unit has to have an objective meaning.

This leads to the conclusion that there can only be one objectively correct human language. If pas means "not" in French and "all" in Greek, one or both are wrong about meaning of the sound. This is obvious nonsense, since the purpose of language is to communicate. If a person says "pas" and the hearer understands "not", the purpose is accomplished.

This doesn't mean that languages are without standards, just that there is no such thing as an objectively correct language. When you drop a loaded term like "liberty" into a world of extremely intelligent, grossly unethical people billing $500/hr., you've just poured blood into shark waters.

While most of the things you listed as evidence of this claim are to some extent true, that does not prove that language (i.e., concepts) is inherently "inobjective."

Concepts may or may not be objective(1), but concepts and language are not the same thing. Have you ever been unable to come up with the appropriate word or phrase to describe something? Have you ever considered the difficulties in translating a concept in a foreign language into English (consider eudaimonia)? These are indications that thought is different from language. Related, yes. Identical, no.

(1) My first thought, off the cuff, is that some concepts are objective - the concept of two - and some are not - the concept of love.

- Josh

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Money to fund a capitalist government comes from voluntary sources. You can find this and other information about capitalism here:

http://capitalism.org/faq/taxation.htm

You expect people to voluntarily give their money to the government when they expect someone else does? That has two problems, both related to selfishness:

1. If someone else is expected to pay for something, people will rarely pay for it. This is called The Free Rider Problem.

2. He who pays the piper calls the tune. A government funded voluntarily by some sector of society will soon use it monopoly power to accrue benefits for its contributors.

- Josh

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Nope, I'm moving forward through the history of Western thought.  As such, I get to Ayn Rand when I get to the 20th century.  I just finished Aristotle (at least, most of his major works).

Let me get this straight: you haven't read any of Ayn Rand's work? Then why are you on an Objectivist discussion board?

An objective definition of language would mean that every linguistic sound has an objective meaning.
No, that would be an intrinsicist definition of language. Again, I'll refer you to ItOE.

People who use an objective theory of math say that the concept of two (not necessarily the word "two" but the concept) can only refer to a thing and an additional thing and nothing else.  People who use an objective theory of value say that every item has an unchanging, predefined value.  If someone wants to use an objective theory of language, each linguistic unit has to have an objective meaning.

More intrinsicism.

This leads to the conclusion that there can only be one objectively correct human language.  If pas means "not" in French and "all" in Greek, one or both are wrong about meaning of the sound.  This is obvious nonsense, since the purpose of language is to communicate.  If a person says "pas" and the hearer understands "not", the purpose is accomplished.

What is obvious nonsense is that that's what an objective theory of language would be.

Concepts may or may not be objective(1), but concepts and language are not the same thing.
Concepts are the basic building block of language.

Have you ever been unable to come up with the appropriate word or phrase to describe something?  Have you ever considered the difficulties in translating a concept in a foreign language into English (consider eudaimonia)?  These are indications that thought is different from language.  Related, yes.  Identical, no.

So?

(1) My first thought, off the cuff, is that some concepts are objective - the concept of two - and some are not - the concept of love.

Again, I suggest you stop posting this kind of stuff here until you've read Ayn Rand's relevant work. Or at least restrict yourself to the "Basic Questions" forum.

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However, language is inherently inobjective.

A-hem. Well, that is sufficiently wrong that I'll hold off starting a separate thread attacking that. Besides, Ash has made most of the important points. The one that I will add here is that your statement "every linguistic sound has an objective meaning" is completely wrong. Meanings are signalled by a conventional relation to specific sounds (plural). Your apparent cause-and-effect view is wrong, as is your intrinsicist view (which is why the same sound means "step", "all", "father", "give", "in" (etc.) various languages.

Actually, I think you don't understand the concept "objective"; I'd recommend reading up on that particular term. It doesn't mean "universally invariant".

Terms change meaning over time.
The interpretation of a rule has to be done according to the meaning of words and phrases at the time the rule is created: that's not hard to do, though over 500 years it might actually prove necessary to re-word the rules to deal with language change (or keep good records on meanings -- but I favor re-writing, to avoid turning ststutes into sacred mystical texts).

Phrases mean different things to different people.

Yes and no. The literal interpretation is not person-dependent, though it can be dialect dependent. This is why statutes are written in the standard dialect (so that for instance you won't find a law where "bad" means "good"). The rule of lenity does address the resolution of ambiguous statutes; so can you give me an example of where you think there might be a problem?

Judges take different views on how to construe the terms of a statute.
Right, but that's because there are few explicit guidelines governing interpretation. The fact that judges currently take a common-law view on statutory interpretation is the problem, and should be fixed (see Scalia's Tanner lectures).

Making rules of interpretation means interpreting the rules of interpretation themselves, which leads to the same problem as before.

Sure, any system of codifying law objectively has to rely on human intelligence, to apply it to any new case, and there might even arise a situation where a fundamental rule of interpretation itself proves ambiguous. But this doesn't mean that we should give up the search for objective law. As it stands, there is remarkably little attempt to codify a uniform set of interpretive principles, which allows Breyer and Scalia to both be Justices.

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Let me get this straight: you haven't read any of Ayn Rand's work?  Then why are you on an Objectivist discussion board?

To argue and learn. That seems obvious enough.

No, that would be an intrinsicist definition of language.  Again, I'll refer you to ItOE.

Language as concept simply doesn't work. "The dog slept green fiercely." That's a perfectly good example of English except it doesn't mean anything.

Concepts are the basic building block of language.

Primarily vocal gestures are the basic building block of language. Concepts, among other things, can be conveyed through language.

- Josh

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"The dog slept green fiercely."  That's a perfectly good example of English except it doesn't mean anything.

I think you need to recheck the basics. Subcategorization defines "what's good English", and you've got a basic subcategorization error in your example (check the verb, which is intransitive). The classical example, as you should know, is "Colorless green ideas sleep furiously". However, the point of that example is to emphasize the distinction between syntactic well-formedness and semantic well-formedness -- i.e. the classic sentence "doesn't mean anything". Are you suffering under the erroneous misconception that the grammar of English only relates to syntactic well-formedness? Rest assured that that is quite false.

Primarily vocal gestures are the basic building block of language.
That doesn't mean anything. First, the expression "primary vocal gestures" doesn't refer to anything (using standard technical terminology, or compositional semantics). Second, any claims about what is primary vs. secondary in language has to be supported with argument -- it is not at all obvious that sound is the "primary" atom of language. In fact, IMOO the conceptual content of language is primary (most important). You can attach whatever significance you want to the fact that, as a phonologist, I nonetheless assign greater primacy to the semantic aspect.

Concepts, among other things, can be conveyed through language.

Using sounds, among other things.

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  • 4 weeks later...

I would want to amend the constitution so that a president's child cannot be president except in a situation where he succeeds a president who's office ends short of his 4-year term.

I think this check/balance against "dynasties" is important.

More importantly, I would set a 6-year limit on representatives and disallow and devise a limit that disallows anyone going from the house to the senate if it could result in more than 8 years in Congress.

PS: This has nothing to do with Bush, for whom I am voting.

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I would want to amend the constitution so that a president's child cannot be president except in a situation where he succeeds a president who's office ends short of his 4-year term.

I think this check/balance against "dynasties" is important.

More importantly, I would set a 6-year limit on representatives and disallow and devise a limit that disallows anyone going from the house to the senate if it could result in more than 8 years in Congress.

PS: This has nothing to do with Bush, for whom I am voting.

I don't understand your first amendment here. What is the point of it? To use the term dynasty in the American political context is a bit of a misnomer. We've only had two sets of family succession. The Adam's "dynasty" was the father 1797-1801, then three subsequent administrations and then his son from 1825-1829. We then have to wait 160 years before the start of the new "dynasty" in 1989. This also was not in succession. There is nothing in your argument, nor any relavant facts that support your amendment as important.

I think the second suggestion is actually dangerous. It takes away our check and balance of being able to throw the bum out. If his time is going to be so constrained, what matters it to him to be good at his job? You'll have hit and miss politicians in there time and again.

For the same reasons, I do not agree with the term limits set for the presidency either. Why should we be forced to say goodbye to a good president (if we ever run across one again) just because of an arbitrary rule? If he is good, we won't have him as long as we like. If he is bad-with or without term limits-he will lose his job.

For instance let's say that on September 11th (leaving out a lot of variables for example) we had a very good president, but he was on the last months of his term, and he had to leave office. Who is coming up behind him? Bush vs. Kerry! Instead of us being able to say: "Hey, we want to keep George Washington the VI, he wiped out China when they attacked us four years ago! That is the man we want! Let's vote ol' George in for a third term!" No, sorry you have to choose between these two morons.

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