U.S. constitution

[sv watson]

i've only been on this site a few days now. i think it will be different here than on the other site i was on, but this is the question i would like to present: if you could change the constitution, would you? and why or why not?

in my estimation many mistakes were made in the final product we call the u.s. constitution.

the first and ugliest was that it proclaimed slavery to be legal (moral? hmm.?) and that a slave was worth 3/4 of a man so as to count toward the total population of the state to determine the number of legislators in the house of rep.

this speaks for itself! an abomination. and it makes you wonder how the decl. of independence came first??? (compromise of principles)

next, i think the commerce clause and general welfare clause need to be excised from the const., as in my estimation, it is from these const. clauses have been the gov't instrument of evil and subjegation. taxes, regulations, prohibiting personal choices, etc., etc., etc.

[felicity]

Some areas that a good contemporary constitution would address (in no specific order). These points are also at different levels of detail. It would take an expert to reduce them to their essentials, while not leaving loopholes for future courts.

1) "Separation of economics and state". Cannot say how general and how specific it would have to be...that's for a legal scholar. But, ideally, whatever clause is drafted should make it clear that the following are not functions of government: central bank, welfare, social-security, education, regulation of foreign trade.

2) Allow abortion

3) Allow immigration

4) I would be wary of any clause that gives specific ways in which the government should gather revenue. However, some type of "how not to tax" should be present. The original constituion made an attempt, but the 16th amendment undid it. It would be framed something along the lines of the original, but instead of trying to make a rule that is fair across states, one needs a rule that would be fair across individuals.

5) Disallow any election funding by or through governments.

6) Allow individuals and firms to establish what are commonly known as "monopolies".

7) Allow prostitution and homosexuality among consenting adults.

8) Establish a principle of "separation of state and morality".

9) Establish a principle of "separation of state and private rationality", in the sense that individuals have the right to be irrational and to bear the consequences... for instance in cases where I hire my wastrel nephew as my cashier, or when I deny someone a job in my firm because I have had bad experiences with other people of the same ethnicity.

10) Make it a little harder to change the Constitution... a little harder than it already is.

Before changing the constitution, one has to change the dominant philosophy. If one does that, the courts will begin to "interpret" the constitution more rationally; next, some important rational amendments may be adopted...finally, perhaps, a re-write.

[Tom Rexton]

I would have to disagree.

The constitution must strictly delimit and clearly define the functions, organizations and operations of the government. It should not contain any clause "allowing" individuals to do this or that, but rather unequivocally state that the purpose of the constitution--and therefore, the government--is to protect all the rights of every individual under its jurisdiction. It should also strictly prohibit from the government all powers not enumerated in or implied by the constutition.

Granted, it must contain some clauses defining rights and enumerating the fundamental ones*; but, like the 9th and 10th amendment, it should also contain a clause that prevents the enumeration of rigths from being misconstrued so as to abrogate other rights not enumerated. Also it should have a strict construction clause, to prevent any loose, irrational construction based on an improper political context.

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*This would be essential to prevent the government from legislating any "animal rights" law that abrogrates human rights.

[sv watson]

hi, felicity!

i agree with many of your changes/amendments ...

i have only one problem, though .. re "establish a rpinciple of 'separation of state and morality'". i would suggest that whatever is in the const. should be based on moral principles. i think i understand your point, but don't you think such a document should be grounded in morality? if i am correct, you can't separate the two.

tom, i like the idea regarding the proper construction the cons't should be given, since that is such a large part of the problem with const. law today ....

[felicity]

whatever is in the const. should be based on moral principles

I agree 100%. All that is illegal should be immoral.

The "separation" comes because: something should not be illegal just because it is immoral.

[AshRyan]

I agree entirely with Tom Rexton's post, and would therefore advocate something much closer to our current Constitution than to what felicity is advocating. That said, there are some obvious changes that I would make, mainly the ones sv watson named in his initial post (slavery, "general welfare," etc.).

[AutoJC]

I agree entirely with Tom Rexton's post, and would therefore advocate something much closer to our current Constitution than to what felicity is advocating.  That said, there are some obvious changes that I would make, mainly the ones sv watson named in his initial post (slavery, "general welfare," etc.).

I believe there was an amendment which addressed the slavery issue.

[Scott_Connery]

I think the most obvious flaw with our constitution is the lack of self policing. 90%+ of the laws on the books are plainly un-constitutional, and yet they stand. I'm not sure what the solution is, but it needs to be harder to pass laws and easier to get them removed. Clearly, having political appointees be the judges of what is constitutional is not working well.

[knuckles]

but it needs to be harder to pass laws and easier to get them removed.

This is a tough one. If it was really hard to change, then good changes like voting rights for black would be difficult.

My impression is that more bad laws are caused by (maybe deliberate)

misinterpretations of the constitution than by bad amendments to it. Ideally, the constitution needs to be more secure against such misinterpretation.

Sadly all this is moot, because an objectivist constitution is not something that will happen in my lifetime.

[AshRyan]

I think the most obvious flaw with our constitution is the lack of self policing. 90%+ of the laws on the books are plainly un-constitutional, and yet they stand. I'm not sure what the solution is, but it needs to be harder to pass laws and easier to get them removed. Clearly, having political appointees be the judges of what is constitutional is not working well.

There is a senator--I think it's McCain, R-Arizona--who has advocated a bill that would require all legislation to prove its constitutional authority. I think that would be a great idea, but it doesn't have a chance of passing because all of the other senators know that it would put a serious damper on their corrupt use of their congressional powers.

[DavidV]

If the Constitution were made too hard to change, judges would simply “reinterpret” it.

As judge Learned Hand put it: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."

[MinorityOfOne]

As I recall, the bill would have required that all legislation specifically state which clause(s) in the constitution justify it. I was told that one senator literally responded "But that would have made it impossible to do anything we've done for the last fifty years!"

(Sounds like a fable, but if so, it's a damned good one.)

[Scott_Connery]

I don't mean harder to make ammendments to the constitution, I think that is already hard enough. I am talking about laws passed which violate the constitution. Examples of this are endless, all the entitlement programs, all the gun control laws, the drug war etc. There are not ammendments that make any of this constitutional, but they are on the books anyway, and they are very very difficult to challenge in our current system.

[DavidOdden]

I don't mean harder to make ammendments to the constitution, I think that is already hard enough. I am talking about laws passed which violate the constitution. Examples of this are endless, all the entitlement programs, all the gun control laws, the drug war etc. There are not ammendments that make any of this constitutional, but they are on the books anyway, and they are very very difficult to challenge in our current system.

And earlier you said:

I think the most obvious flaw with our constitution is the lack of self policing. 90%+ of the laws on the books are plainly un-constitutional, and yet they stand. I'm not sure what the solution is, but it needs to be harder to pass laws and easier to get them removed. Clearly, having political appointees be the judges of what is constitutional is not working well.

I'll leave aside the question of gun laws because there actually is an explicit statement about the right to bear arms. But there is nothing in the constitution that prohibits the government from acting to "promote the general welfare state" or words like that, and nothing in the constitution says that the government can't outlaw drugs and pour huge amounts of money into said war. There aren't amendments to allow this because -- and this is the key problem -- it is not required that the constitution directly and explicitly sanction whatever the government does. So indeed 90% of the laws on the books are clearly wrong, but constitutional anyhow. There aren't very many explicit limits on what the government can do except for certain things like outlawing criticism, willy-nilly seizure of property by the government (as distinct from systematic seizure in mid-April).

This problem with drug laws and anti-trust and so on stems from the fact that the Constitution starts from the position of giving absolute power to the state -- in a prescribed manner -- and only retreats from that slowly, as when an amendment is added declaring that the government cannot prevent you from criticising it, and cannot torture you to death. The cure, as you note, is to make it not just harder to pass new laws, but to make it impossible to pass certain kinds of laws (such as anti-trust laws, coercive taxation laws, the draft...). Simply articulate what the proper function of of government is, and prohibit the government from acting in any fashion except as it is in accordance with that purpose.

I don't know why you think that political appointees as judges makes things worse. What do you have in mind as an alternative? That the judiciary be directly elected? We do that in Ohio and lemme tell you that it's not the greatest system either. Having SCOTUS be filled with elected hacks would make things worse, not better. The problem with judges is not that they are appointed, but that have bad philosophies.

[Scott_Connery]

And earlier you said:

But there is nothing in the constitution that prohibits the government from acting to "promote the general welfare state" or words like that, and nothing in the constitution says that the government can't outlaw drugs and pour huge amounts of money into said war. There aren't amendments to allow this because -- and this is the key problem -- it is not required that the constitution directly and explicitly sanction whatever the government does. So indeed 90% of the laws on the books are clearly wrong, but constitutional anyhow. There aren't very many explicit limits on what the government can do except for certain things like outlawing criticism, willy-nilly seizure of property by the government (as distinct from systematic seizure in mid-April).

There is a little known amendment, number 10, that does specifically forbid anything the constitution does not expressly permit the government to do.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. "

So, all those examples you listed are not just wrong, but illegal.

[DavidOdden]

There is a little known amendment, number 10, that does specifically forbid anything the constitution does not expressly permit the government to do.

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. "

An interesting argument, but I don't quite see how this is supposed to be applied.

Let's take an example. Article 1 section 1 states "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". This means that there is legislative power invested in the Congress, and that they can pass laws. If the 10th amendment is to be read as stating that no laws can be passed except as are already contained in the Constitution itself, then of course Congress would have no power to pass any legislation. That would be an interesting result of such an interpretation of the 10th, but (from http://caselaw.lp.findlaw.com/data/constit...ment10/01.html) 'this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was firmly settled by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated,'' ', ref. to Annals of Congress 767-68 (1789).

Section 8, clause 1 grants Congress the power to tax, and to "provide for the common Defence and general Welfare of the United States". (Boy did that go wrong). Clause 3 lets them regulate interstate commerce (I'm not aware of the US government intruding on the business practices of any company or individual who conducts business entirely withing one state -- if there is any such company or individual: but of course it's really hard to keep track of all of their rights-violations in the economic sphere). Thus anti-trust and "general welfare" laws -- anti-drug, anti-porn, you name it -- are within the scope of the powers delegated to the US government.

As SV Watson pointed out, until you get rid of the commerce clauses and the general welfare clauses, there's no point in arguing constitutionality.

[Praxus]

Alexander Hamilton was the worst thing for this country, he started us down this slipry path.

To bad Jefferson didn't just jump in on the Constitutional Convention and write it himself.

[pvtmorriscsa]

Howdy All,

It would appear to me from my reading of American history that the 10th Amendment died on April 9th, 1865. In my opinion the 10th amendment is the key issue of the American Civil War. I will not debate the issue of slavery, as I think it is completely wrong, and the list of reasons is very long. However, the perculiar institution was constitutional at the time of the war, and as such should have been dealt with legally, and constitutionally. When it was not, it opened the floodgates for all the Federal Government intrusion into our lives that we see to this day.

[Scott_Connery]

The 10th ammendment does not prohibit the government from making any kind of laws. I just prohibits them from from making laws relating to things that they have no authority over. For example the government is given the authority to coin money. Therefore congress can pass a law to create a mint in DC. The constitution does not give congress permission to provide free healthcare, so it may not create any laws relating to it.

[DavidOdden]

The constitution does not give congress permission to provide free healthcare, so it may not create any laws relating to it.

Not explicitly, but implicitly, thanks to the general welfare clause (as applicable to healthcare). Consider this analog. The constitution provides the power to mint money, but does not provide the specific authority to print paper money or to mint nickels in particular. Minting nickels is justified by the authorization to mint coins (though printing paper bills would be seen as a right reserved to the states under your view, right?). Similarly, then, when Art. 1. Sect. 8 says "The Congress shall have power to ... provide for the common defense and general welfare of the United States", it does not need to specify exactly what those acts are. So-called "free" healthcare is justified (or, more accurately, rationalised) under the general welfare clause.

[erik]

the provide for the general welfare clause and the commerce clause I agree are two things I would clarify or remove.

Also the part where its says the gov't will provide roads and post offices and regulate the value of the money ( thats a big one )

Section 8 is the biggest problem actually.

[oaktree]

I don't mean harder to make amendments to the constitution, I think that is already hard enough. I am talking about laws passed which violate the constitution.

An interesting idea. Yes, it would be nice to have a procedure in place by which a bill's prima facie constitutional justification has to be demonstrated in some type of judicial proceeding before it goes to final vote.

Other than just the stuff in laws, is the "administrative" rules that come out of various government agencies. Some checks must be put in place there.