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What Parts of U.S. Founding Were Flaws?

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     [Note: by feds, I mean the federal criminal courts/FBI/prosecutors]

Just to name 2: Eminent Domain and the Commerce Clause. I don't know my history well enough to fully understand the Founders' intent, but I can see the results: Eminent Domain is a violation of the Right to Property. And the Commerce Clause is now diliberately misinterpreted so the feds can expand their jurisdiction, to supersede states' laws by claiming various acts interfered with interstate commerce.

     I was born and raised in Honolulu. (I attended Punahou, the same elite prep school Obama did and, I can assure you, any claims he made that he and his single Mom were poor is false: only rich kids went to Punahou.) Years ago I was pulled over in a traffic stop and the cops found my unregistered sawed-off shotgun in my car. I was on state property, and the cops decided not to charge me for the gun.    

     There's a federal felony called Shortened and Unregistered Firearm ("Shortened" meaning sawed-off). The feds charged me with it.

      I said, "You don't have jurisdiction!"  Then I proved, " I was on state property!

      The feds invoked the Commerce Clause  (which might've been originated to protect Americans from interstate trade barriers), which gave the feds jurisdiction because the gun was manufactured in Massachussets and therefore, traveled (legally travelled doesn't matter) across state lines to get to Hawaii.

     I was shackled and flown to the the United States Penitentiary in Lompoc, California. I found Atlas Shrugged on a federal prison library bookshelf,  5 years ago. I then immediately invested all my savings on every book about Objectivism (and Ayn Rand, the person) I could find. I think I got 'em all. I read and reread and reread that stuff for 5 years.

     I just got out.   

    

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So the judges robbed you of 5 years of your life for finding a gun in your car? There's got to be something more to it

I had priors, if that's what you mean. my point is the commerce clause is deliberately misinterpreted by the federal government. My main concern is how they use the commerce clause to give legality to their intervention into the U.S. economy. A good example is how they used it to prevent health insurance portability (buying across state lines), which prevented competition.

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While I'm not a lawyer, and I don't know all of the facts surrounding your case, nonetheless, Steve, you have my sympathies. I support 2nd Amendment rights for US citizens, and yet there are some people who, by their past behavior, should be restricted, not saying you're one of them.

With that, I would appreciate a chance to address your opening question: Are there flaws in the Founder's Constitution. Short answer: Yes. Aside from accepting slavery for a portion of the population, there were only a few in the wording of the Preamble. The slave issue was, by far, the hottest. All debate on the subject was to postponed until after 1800, or 1810, or some such time when things had settled out. Five slaves counted for three electoral votes; seems rather nutty today. One of the debated phrases that found its way into the Preamble was the explicit purpose to "promote the general welfare." Opponents of this phrase recognized it for what it was, and it has been applied to various arguments leading to our current welfare state. If you look at the wording of the Confederate constitution, 1860, the Southerners omitted this clause, and otherwise transposed the wording of the original. That is, with one other major exception: The Southerner included a reference to "God" thereby invoking his "blessings" on the slave-holding nation. Omitting god, (or gods) from the Constitution was also debated, and the rational founders won out, quite fortunately. Perhaps my inclusion of the Southern Constitution may seem like too much information, but it is relevant to illustrating the ideas in play during the nations early construction.

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The main flaw was slavery. Another big one was the introduction of forced taxation to pay for the debts incurred during the Revolutionary War. It could've been handled differently.

There were other, minor flaws.

But I wouldn't rush to blame the founders' flaws for what happened in the past 100 years. The Constitution and the early US could've both been perfect and it still wouldn't have stopped later generations from embracing racism, religious fanaticism, the progressive movement, or modern liberalism.

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With 20/20 hindsight, the essential flaw in the constitution was that it did not make individual rights its explicit central purpose. The Declaration of Independence stands as a rationale for the nation. So, one ought to read the Constitution in the context of the Declaration; but this should have been made explicit within the constitution as a document standing on its own. Instead, the constitution -- prior to amendments -- reads too much like a compact between states (i.e. a compact between governments rather than a way to guarantee individual rights).

 

The first 10 amendments (Bill of Rights) attempts to rectify this focus, but also contain an essential flaw -- which was known and argued about at the time -- in that it enumerates specific rights, therefore allowing future generations to argue that anything not enumerated was up for democratic vote. Nevertheless, the Bill of Rights was great, because it ended up supporting individual rights much more than it hurt. Without it, voters would have taken away still more freedoms from their fellow-citizens, and faster than transpired. 

 

With what we know today, the core of the constitution should be a declaration that its sole purpose is to guarantee individual rights. To stress this point, it should be made explicit that while democratic vote is the final concrete arbiter, it is not the primary moral and political principle of what makes something right. 

 

Reference: In "To Secure These Rights" by Scott Gerber, the author argues for a theory of constitutional interpretation that takes "the natural-rights philosophy of the Declaration of Independence" at its context. I agree. However, the need to argue for this, points to a key missing element within the constitution itslef.

Edited by softwareNerd
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The constitution failed to enshrine the Rule of Law. By this I mean what F. Hayek describes: laws must apply to all citizens at all times. The law that we drive on the right-hand side of the road is valid under the Rule of Law principle. However, laws that require periodic interpretation by panels of experts violate the Rule of Law. Most regulations are like this in that congress writes some principle into law that must be interpreted by agencies and encoded by them into regulations, giving us the rule of the bureaucrat. Obamacare is a prime example of a violation of the Rule of Law in that it seats a panel of experts to decide what procedures are and are not covered under insurance plans controlled by governmental exchanges and also sets the prices for those services. It is clear that we no longer live under the Rule of Law but under the rule of the panel of experts. This is an egregious violation of rights.

 

The Whiskey Rebellion was a response to this constitutional flaw. Whiskey was taxed in order to pay for the revolution, sparking resistance by a lot of innocent folk. It may seem reasonable to make sin pay for the war but this did not treat all equally, violating the Rule of Law. If the debt was incurred by all then, all should pay. This is distinct from gasoline taxes where those who use the stuff pay a tax that ostensibly pays for upkeep of the roads. This is reasonable under the Rule of Law principle. Slavery is a violation of the Rule of Law, allowing some to be treated differently (in a way causing immense hardship and resentment).

 

Other than that, there seems to be no way to force the government to live by the constitution. The 10th ammendment is routinely violated and there seems to be no remedy. The "Living-Breathing" idea for the constitution means that in fact the bill of rights is null and void. Since words have no specific meaning, the constitution means nothing. When all is a floating abstraction, you have no rights.

Edited by aleph_1
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One should add that the US constitution originally did not treat women equally.

 

I would also like to add that the constitution did not constrain criminality to actions and make thought an area of free reign. The existence of thought crimes, such as "hate crimes", should have been cut short at the root, but the founders likely could not have imagined anything so perverse as "hate crimes".

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