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Rewriting the constitution

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We've had more than one thread where the question of objective law and a better constitution arises. It seems to me that we oughta actually do something about this, even if it's just an academic exercise. So in that spirit, I offer a first draft of a few preliminary changes that I propose to the US constitution. In fact, these are "preliminary clauses", something that you put at the beginning that restricts other things that follow and / or are legally subordinate to it. I am not sure whether any other clauses should be added -- I haven't even begun to touch the parts that need to be deleted (like, the commerce clause, the welfare clause...). Here is the proposal:

1. The purpose of government is to protect the rights of those subject to its laws.

2. The fundamental right of any man is the right to his own life: each man has the right to act on his own judgment by his own voluntary choice.

3. No law or constitutional provision shall be valid except as it is necessary to protect those rights.

4. If a law is found to be materially ambiguous, the law must be restated to remove that ambiguity within 1 year of that finding, after which time the law becomes null and void.

5. If a law is found to be materially ambiguous, it must be interpreted in a rights-respecting manner according to Article 1 if such an interpretation is possible.

6. All legal requirements governing those subject to the law of the nation must be expressly stated in this constitution, or in the US Code. Appelate decisions pertaining to the validity of a law are limited to

  • (i) the finding that a law is unconstitutional under Article 3 or
  • (ii) the finding that a law is ambiguous in interpretation under Article 4.

The Supreme Court has the discretion to temporarily restate the ambiguous statute in a specific, unambiguous manner, which restatement remains valid until the law is rewritten by the legislative body.

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I think #2 needs to have something about property, and it should explicitly mention money. This will protect it from liberals.

I would include the whole Bill of Rights, with the following changes:

  • 1st Amendment - Instead of, "Congress shall make no law respecting the establishment of religion," it should be, "No laws shall be made which attempt to legislate, in any capacity, the tenets of a religion, unless such tenets are required to protect individual citizens." I put that last phrase in there so the southern Baptists don't start screaming that, by that standard, murder can't be outlawed, since it's one of the 10 Commandments.
  • 2nd Amendment - Remove the phrase "A well-regulated militia being necessary to a free society." This phrase causes too much confusion, and it clouds the operative phrase of the Amendment. I would further restrict ownership of arms to defensive weapons. This will keep right-wing wackos from thinking they have a right to a nuclear bomb or a SCUD missile.
  • 4th Amendment - Include a specific reference to a right to privacy.
  • 8th Amendment - Define "cruel and unusual punishment." Explicitly state that the purpose of the penal code is to protect the innocent and punish the guilty. It must be explicitly stated that the penal code is not intended to "rehabilitate" the guilty.
  • 9th and 10th Amendments - I would restate these 2 Amendments over and over again, to the point of redudancy. The more ways you say the exact same thing, the less likely someone is to find a loophole. Another point that should be beaten into the ground is that, while the states maintain rights that the federal government does not have, they may never infringe on the rights of the citizens, as set forth in the other Amendments.

Some things I would add:

  • Presidents may only serve 2 non-consecutive terms. This would help to cut back on politicking while the first term is going on. If a president knows he can't run for at least 4 years after his first term, he won't engage in as much vote-buying. An alternate solution would be a single 6 year term.
  • All elected officials of the federal government are limited to no more than 3 terms in office, all non-consecutive.
  • An Amendment which limits all foreign alliances to a period of 5 years, with the option of renewal at the end of each period. If this were the case, the American people would pretty much force Congress to withdraw from the United Nations at the earliest possible opportunity.
  • Private citizens, including privately-owned businesses, may discriminate against other people for any reason at all, provided that it does not affect anything other than the discriminated person's use of the owner's property. Thus, if a racist shop-owner doesn't want blacks or Jews shopping at his store, he doesn't have to, because no one has a right to shop there. Blacks and Jews would simply go to other stores and provide another shop-owner with a better income. The only color that capitalism cares about is green, and racist business-owners would most likely just swallow their pride to get a little extra cash. This would also put an end to the ridiculous mandatory handicapped parking spaces and bathroom stalls.
  • Trim the voter rolls. The following people may not vote: anyone who has ever received a welfare check, anyone who relies on someone else to provide them with a means of living, convicted felons, incumbents of elected office, anyone who has been in drug or alcohol rehab in the past 5 years.
  • An amendment stating that, out of respect and the fact that no one else will ever live up to the name, no one may ever again give their child the name, "John Wayne." ;)

Edited by Moose
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Excellent topic. I'll think about this some more, but I'd agree with Moose about explicitly stating an individual's discretionary use of his property as a necessary condition of the fundamental right. Alongside that, it might be good to state that the only violation of one's rights is an initiation of force.

Under Article 3, how would one prove that a given law is "necessary" to protect its subjects' rights?

It looks to be a good start.

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David and Moose I think would make great constitutional draftsmen, although I think the second part of your post Moose wouldn't be as necessary if the first parts are held up. There's not much harm a president can do if he's restricted to only protecting rights, term limits only make sense when the president has the power to violate rights, but political paranoia isn't a bad thing, so those things probably need to be included. The biggest problem with the constitution is how vague it is, I like the clarity you two introduce and the explicit stating of certain protections, I wish the contintental congress(if thats the body, I am not too familiar with history) was as careful and as philosophically grounded.

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David and Moose I think would make great constitutional draftsmen,

Thanks for the compliment! :)

although I think the second part of your post Moose wouldn't be as necessary if the first parts are held up. There's not much harm a president can do if he's restricted to only protecting rights, term limits only make sense when the president has the power to violate rights, but political paranoia isn't a bad thing, so those things probably need to be included.
The problem is that a Constitution, no matter how explicit, will always be dilluted by time and by retarded Supreme Court decisions. If you explicitly state that the only time government may intervene is to prevent initiation of force, people will start crying that, by not providing free health care, we pave the way for virii (plural of virus) to initiate force on people. Even if the Constitution spefically states that that doesn't count, there would be ways of getting around it. Term limits will ensure that politicians vote for what they think is right and what will actually work, rather than what lets them hold onto power.

The biggest problem with the constitution is how vague it is, I like the clarity you two introduce and the explicit stating of certain protections, I wish the contintental congress(if thats the body, I am not too familiar with history) was as careful and as philosophically grounded.

It's not that they weren't careful and philosophically grounded. It's that they had no way of knowing what future technology might bring. They couldn't put in a clause about abortion, because no such thing existed at the time. They couldn't include the internet in "freedom of the press," because computer didn't exist. They weren't more specific on separation of church and state because they could not forsee that America would reach a point whereby no politician can get elected without at least pretending to be a Christian. They couldn't be specific about foreign alliances because, at the time, it took weeks for messages to be relayed to foreign countries, and long-standing alliances were impractical.

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So we are re-writing it from scratch rather than filling in the holes and removing the inchoate cancer? Are we sure that's best, especially when I take it none of us are lawyers or have studied historical law with any great depth? Who here has thoroughly read and examined the constitution that was to be, before Jefferson edited it?

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I've mentally resisted enumerating rights, because of that old bugbear expressio unius, i.e. if you mention one thing and fail to mention others, then the others are excluded. So by mentioning property rights, one might think that free speech is not a right. OTOH constitutions are both timeless and yet time-sensitive in that facts relevant at a particular time might need to be mentioned. Thus the right to property has eroded, and should be mentioned explicitly even though it follows from 2. Well, expressio unius can be explicitly denied, so let's rephrase the 9th amendment and move it up higher:

2.5: The enumeration of specific rights according to article 2 cannot be taken to be a denial of other specific rights under that article.

Then, I think, specific mentioning of rights such as expression (not just "speech") etc. can procede.

Now as for Article 3 and how to prove that a given law is "necessary" to protect rights, this is important but also too complicated a question to reduce to a few constitutional provisions. Something still in the works is a statement about well-formed statutes, in particular that it must contain a statement proving consistency with Art. 3. Given that, the validity of the law under 3 is something to be proven (as opposed to the current system which has no such requirement). There is still the problem of human interpretation, but no system of words will force people to act rationally.

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So we are re-writing it from scratch rather than filling in the holes and removing the inchoate cancer?
Actually, I have in mind adding a bit and removing a bit. What I gave here was an initial addition, because it reflects some fundamental mistakes that could be corrected, and which would have broad consequences. Then I thought later I would propose changes in the existing constitution (for example, eliminating the road clause, welfare, and so on).
Are we sure that's best, especially when I take it none of us are lawyers or have studied historical law with any great depth?
I don't understand the question. Why would we need to be lawyers of scholars of legal history to be able to do this? I assume Matt will step in and correct and egregious errors on my part. Or, anyone else. If you find any clause that has an unintended consequence of ambiguity, you should point it out, and don't wait to get that law degree. Actually, legal training might be a disadvantage, since the underlying assumption is that laws and constitutions are written in plain language and are maximally self-contained. Legal training tells you about special meanings and background assumptions (i.e. legal precedent), which are anathema to objective law.
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Shouldn't there also be an amendment or clause in this hypothetical Constitution making it explicit that there is to be a complete separation of state and economics? It should be written in the same spirit of the First Amendment, but applied to economic intervention. That one clause alone would solve a majority of the problems of our current government.

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Shouldn't there also be an amendment or clause in this hypothetical Constitution making it explicit that there is to be a complete separation of state and economics? It should be written in the same spirit of the First Amendment, but applied to economic intervention. That one clause alone would solve a majority of the problems of our current government.

Agreed. There also needs to be an Amendment for separation of education and state.

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Moose:

"Since this is not a serious proposal that the members of this forum draft a new US Constitution, I think it's safe to toy with the idea just for fun."

That's fair enough. I guess I have the early Wittegensteinian tendency to want truth in one complete moment of inspiration rather than a building process. But building is good too.

David:

"Actually, I have in mind adding a bit and removing a bit. What I gave here was an initial addition, because it reflects some fundamental mistakes that could be corrected, and which would have broad consequences. Then I thought later I would propose changes in the existing constitution (for example, eliminating the road clause, welfare, and so on)."

Okay, so at this point it might be advantageous to have at least the preamble and the first few sections to examine and modify, no? So,

"We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common Defense, 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.

"Article I: Section 1: Clause 1

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

"Clause 2

"The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

"Clause 3

"No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

"Clause 4

"Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

"Clause 5

"When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

"Clause 6

"The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."

So this contains everything about the House alone. Where shall we begin? We should probably strike out promoting the general Welfare, and add in the defense of every individual's right to private property in the preamble. I like I:1:1-3 as they are. Clause 4 is already amended, and for good reason, but since I'm assuming we'll get to the Amendments later, it might as well be said. As for the rest, the only thing that might be controversial is granting the House the sole Power of Impeachment. Should it have the power at all (rather than, say, vested in the Senate) or should that power be shared?

"I don't understand the question. Why would we need to be lawyers of scholars of legal history to be able to do this?"

You don't need to be a soldier to fight a war, but it helps.

[Editted for style]

Edited by aleph_0
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Shouldn't there also be an amendment or clause in this hypothetical Constitution making it explicit that there is to be a complete separation of state and economics?
Yeah, that would be the "free trade clause", which would read "no act shall be made illegal solely on the basis of exchange of consideration" (see discussion here). Thus murder is illegal (for free or for hire); giving of food without a license to others is not illegal so it would be unconstitutional to require licenses of (or otherwise restrict) food vendors. I think that clause would give the desired effect of separating state and economy without mistakenly implying that fraud is not punishable.

At the moment, I am most interested in sharp criticism of that handful of foundational clauses, but of course I'm also looking for the next step. Still, the legal foundation needs to be established.

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David, The 6 clauses you suggest address two subjects:

  • The purpose of government is the protection of rights (Suggestion 1,2 & 3)
  • Creating a mechanism to resolve ambiguous law

Both sound just fine, but the first is more fundamental. I agree that the constitution should start with a statement that government exists to protect rights. I think much more needs to be made explicit about rights. As this is only an exercise, I don't think it is so important to get the exact wording right as to set down the points that must be made.

In general, I think that the "Article of Purpose" should be drafted by looking at the history of various violations of rights that have occurred in the name of protecting rights, and -- keeping these in mind -- should make very clear what is and what is not a right. The three I could think of: rights are what have been listed and nothing else, rights include many other things, rights are whatever the majority say they are. So, I would want the "Article of Purpose" to make the following points:

1. The purpose of government is to protect rights; the fundamental one is the right to life; every subsidiary law must protect rights (as you did in your post)

2. An explicit statement of the "open ended" nature of rights, along the lines attempted by the 10th amendment.

3. An explicit exclusion of things like "the right to work", by articulating the principle by which one demonstrates that these are not rights.

4. A clear statement that the constitution exists to protect the minority of one, not just against usurpation by a tyrant, but also against possible democratic usurpation of rights.

The second article could then go on to present a survey of the type of rights that are protected. This would be a modified version of the U.S. Bill of rights, and should probably end with a repetition of a "10 Amendment" type of caution as to its open-endedness. Of course, one would have to include the lessons learnt over the last 200 years by refining some of the clauses, and adding

  • a "separation of government and the Economy" clause
  • a clause making explicit the right to suicide
  • a clause making explicit the right to abortion (or something elsewhere that states that a foetus does not have rights)
  • a right against being drafted into military service

... ... I'm sure there are more.

The only other thing that comes to mind is the whole environmental movement and their ability to claim some regulations are required to protect the "rights" of others. It would be nice to have a statement of principle in either the first or the second article to cut off attempts to assault rights using environmentalist arguments.

Finally, it might be worthwhile stressing the primacy of the first Article by making it at least slightly more difficult to amend it: for instance, by requiring 75% of the House and Senate to vote for in favor of the amendment.

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Trim the voter rolls. The following people may not vote: anyone who has ever received a welfare check, anyone who relies on someone else to provide them with a means of living, convicted felons, incumbents of elected office, anyone who has been in drug or alcohol rehab in the past 5 years.

I have always held a secret distaste for democratic and even republican forms of government, given the apparent human predilection for voting away their economic rights in order to gain some supposed benefits. Of course, the alternatives, monarchy an so forth, are even less appealing.

The 9th amendment(unenumerated rights)in the US constitution is easily understood by any 10 year old but almost never considered in court(apparently most judges possess the intellect of a 9 year old :) ). So saying that rights must be protected would be a lot more likely to be followed by those to whom the rights actually apply. At least with regard to economic issues.

So a way I recommend which might help insure that people are less likely to vote away property rights is to limit sufferage to only those people who produce an income solely, in the free market.

Particularly excluded would be anyone who collects money from the government in any way. So, senators, soldiers and bureaucrats who get federal paychecks; welfare recipitents, if such a thing exists; contractors, military or otherwise who provide a service or product to the government would all be excluded. Not only from voting, but also from contributing to any political campaign. They have a direct vested interest in transfer of wealth to the government, and are not the producers who ultimately pay the bill. I believe this would go along way to insuring proper representation. I do not think they should pe permanently banned from voting but ,perhaps a significant period of time should lapse(7 years maybe?) during which they produce in the market before gaining their sufferage. Not unlike immigrants.

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So far this topic has been fairly serious, and I'm sorry if this changes the tone and bothers people. I received this in an email last week, and I believe it pertains to the topic at hand. Although I found it hilarious, I do think something similar to this would be a good addition to the Constitution.

The following has been attributed to State Rep Mitchell Aye from GA. This guy should run for President one day...

"We the sensible people of the United States, in an attempt to help everyone get along, restore some semblance of justice, avoid more riots, keep our nation safe, promote positive behavior, and secure the blessings of debt-free liberty to ourselves and our great-great-great-grandchildren, hereby try one more time to ordain and establish some common sense guidelines for the terminally whiny, guilt ridden, delusional, and other liberal bed-wetter's. We hold these truths to be self evident: that a whole lot of people are confused by the Bill of Rights and are so dim they require a Bill of NON-Rights."

ARTICLE I: You do not have the right to a new car, big screen TV, or any other form of wealth. More power to you if you can legally acquire them, but no one is guaranteeing anything.

ARTICLE II: You do not have the right to never be offended. This country is based on freedom, and that means freedom for everyone -- not just you! You may leave the room, turn the channel, express a different opinion, etc.; but the world is full of idiots, and probably always will be.

ARTICLE III: You do not have the right to be free from harm. If you stick a screwdriver in your eye, learn to be more careful, do not expect the tool manufacturer to make you and all your relatives independently wealthy.

ARTICLE IV: You do not have the right to free food and housing. Americans are the most charitable people to be found, and will gladly help anyone in need, but we are quickly growing weary of subsidizing generation after generation of professional couch potatoes who achieve nothing more than the creation of another generation of professional couch potatoes.

ARTICLE V: You do not have the right to free health care. That would be nice, but from the looks of public housing, we're just not interested in public health care.

ARTICLE VI: You do not have the right to physically harm other people. If you kidnap, rape, intentionally maim, or kill someone, don't be surprised if the rest of us want to see you fry in the electric chair.

ARTICLE VII: You do not have the right to the possessions of others. If you rob, cheat, or coerce away the goods or services of other citizens, don't be surprised if the rest of us get together and lock you away in a place where you still won't have the right to a big screen color TV or a life of leisure.

ARTICLE VIII: You do not have the right to a job. All of us sure want you to have a job, and will gladly help you along in hard times, but we expect you to take advantage of the opportunities of education and vocational training laid before you to make yourself useful.

ARTICLE IX: You do not have the right to happiness. Being an American means that you have the right to PURSUE happiness, which by the way, is a lot easier if you are unencumbered by an over abundance of idiotic laws created by those of you who were confused by the Bill of Rights.

ARTICLE X: This is an English speaking country. We don't care where you are from, English is our language. Learn it or go back to wherever you came from!

If you agree, share this with a friend. No, you don't have to, and nothing tragic will befall you if you don't. I just think it's about time common sense is allowed to flourish. Sensible people of the United States speak out because if you do not, who will?

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Typical conservative spin: they focus on the rights they like and ignore the ones they seek to deprive people of. How about adding ...

  • No right to tell women they cannot buy a "morning after" pill
  • No right to tell people what language to speak
  • No right to stop people from dying if they like
  • No right to stop a gay person deciding if a "partner" should have rights to inherit property and make life and death decisions like a spouse would have
  • No right to stop adults from engaging in consensual sexual acts
  • No right to have your city pay for displays of crosses

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Those are good too, although with the 'No right to tell people what language they should speak' I would add 'as long as they don't expect to be understood.' Perhaps a better phrasing would be 'You do not have the right to ask the rest of the country to learn your language, so if you expect to be understood all the time, it is suggested that you learn the dominant language. If you don't, do not be surprised if you can't find a decent job because you don't speak your boss's or customer's language.'

Edit: Also, 'If you are a foetus, you have no rights.'

Edited by miseleigh
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Perhaps a better phrasing would be 'You do not have the right to ask the rest of the country to learn your language, so if you expect to be understood all the time,...
That's fine, if one were writing a guide to getting a job. For the constitution, I'd say that the two provisions that flow from this would be:

1) In order to avoid ambiguity, the primary text of any particular law will be written in a single language. [basically, something that ensures the courts aren't trying to resolve contradictions between an English text and a Spanish text.] However, the specific language to be used should not be an issue for the constitution.

2) As for getting jobs, the constitution should clearly allow discrimination by private employers, including blatantly irrational discrimination based on religion, sex, disability, and language. [This clause might be called the separation of legality and rationality <_<... i.e. just because it is irrational does not mean it is illegal.]

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Typical conservative spin: they focus on the rights they like and ignore the ones they seek to deprive people of. How about adding ...
  • No right to tell women they cannot buy a "morning after" pill
  • No right to tell people what language to speak
  • No right to stop people from dying if they like
  • No right to stop a gay person deciding if a "partner" should have rights to inherit property and make life and death decisions like a spouse would have
  • No right to stop adults from engaging in consensual sexual acts
  • No right to have your city pay for displays of crosses

The Declaration of Independence in my signature could also be construed as having a right-wing spin. That doesn't mean I'm right-wing. It means that I wanted to focus on ridiculing the left when I wrote it. Maybe I'll write one for the right-wing too.

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That's fine, if one were writing a guide to getting a job. For the constitution, I'd say that the two provisions that flow from this would be:

1) In order to avoid ambiguity, the primary text of any particular law will be written in a single language. [basically, something that ensures the courts aren't trying to resolve contradictions between an English text and a Spanish text.] However, the specific language to be used should not be an issue for the constitution.

2) As for getting jobs, the constitution should clearly allow discrimination by private employers, including blatantly irrational discrimination based on religion, sex, disability, and language. [This clause might be called the separation of legality and rationality <_<... i.e. just because it is irrational does not mean it is illegal.]

Sounds great - I don't think irrational discrimination violates anyone's rights, even if I don't like it (and even if the things you mentioned aren't necessarily irrational reasons to discriminate anyways). But now I'm curious what language you would write the Constitution in, and how you determined it? And if some laws are in one language, and some laws are in another, aren't you effectively requiring lawyers and justices to know both languages in order to accurately interpret the laws? Once the Constitution is written, I think there would be a sound basis to require all other governmental proceedings to use the same language as the Constitution, including laws, to reduce contradictions between parts written in different languages. But then the problem is how to choose that language - do we use the one most of the country speaks, one that an arbitrary minority speaks, or one that nobody knows yet?

It would be nice to have a statement of principle in either the first or the second article to cut off attempts to assault rights using environmentalist arguments.

'These rights may not be taken away unless and until direct violation of another specific human's rights is conclusively proven'? Not sure if that would be enough, but it's a start.

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As for getting jobs, the constitution should clearly allow discrimination by private employers, including blatantly irrational discrimination based on religion, sex, disability, and language.
And governments should be allowed to discriminate on these bases if relevant to the job: for example, they should be allowed to discriminate against blind fighter pilots and court clerks who can only ask Как тебе зовут? Government may discriminate rationally, but not irrationally.
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