INTRO
it seems to many of us that although the drafters of the U.S. constitution attempted to create a government with limited power and to protect civil rights absolutely, eventually those restrictions on government became eroded. Could they have done better? If you could write a "constitution 2.0" what additional safeguards would it include?
- you may also include radical changes or additions that you think would be very controversial today or would be against the will of the drafters of the US constitution; but please separate this part of your list and clearly mark it (umm, actually i haven't followed this rule so far but maybe i'll reorganize this page later to follow it).
PRINCIPALS
- structural bias towards individual rights and small government
- look at specific ways in which the supposed civil-rights protecting or government-restricting intent of the U.S. constitution was bypassed, and put in explicit restrictions to prevent that from happening
- explicit statement of meta stuff, like principals and rules for interpretation
- additional clauses to deal with new things in the world since then (tech, joint-stock corporations, etc)
- restrict eminent domain
- rules to allow secessions
- strong antitrust -- make more than a certain market share illegal (rather than forcing competitors to show anti-competitive practices, and limiting sanctions to the minimal neccessary to address those practices)
- "But in Lemon v Kurtzman (1971), the Supreme Court ruled that government actions should satisfy three requirements: they should serve a secular purpose, have primarily secular effects and not foster an \u201cexcessive entanglement\u201d between church and state."
- actual referendum needed to expand government powers (i.e. don't let the legislature, say, vote to let make the current president president-for-life)
- you can't sign a contract giving up certain rights, like the right to sue in court, or the right to ask a case to be arbitrated by a court in your jurisdiction
- something about identity databases; e.g. you shouldn't be allowed to forcibly collect the DNA of an innocent person; a suspect's DNA should be erased when they are exonerated
- police shouldn't be allowed to confiscate property for years and years
(i think there's another file around with more of this..)
- right: anonimity: don't have to give your name to govm't, police, military, unless arrested. it's not a crime not to give your name
- clear ending procedure for martial law
- an individual has total sovergnity over his or her own body, except as provided in the following:
- governments have the power to make laws forbidding people from operating certain kinds of machinery while under the influence, if such operation would pose a serious threat to other individuals. for instance, drunk driving can be made illegal.
- private organizations have the power to insist that members and guests do not partake of certain, or of any, drugs while visiting or acting in the capacity of an officer of that organization.
- note of course that "your right to your fist ends at my face"; one cannot do something to their body if that action will probably result in injusry to others or a violation of others' rights.
- speech cannot be restricted by the government. ideas cannot be copyrighted, trademarked, etc; the distribution of ideas cannot be restricted by the government in the form of laws (the government is free to require its employees to keep things secret, but it may not employ any method of forcible coercion to ensure this; it must act the same as a corporation in this respect). The only kind of data that can be restricted is "meaningless" data, such as encryption keys.
- no war may be fought without a Declaration of War bill being passed. Anyone, including members of the government, who aids or abets the fighting of a war without a Declaration of War is guilty of a felony
- constitution divided into two parts: Bill of Rights (divided into four parts: what rights should individuals have against even each other, and what rights should they have against government, and what rights do corporations have against each other and against individuals, and what rights do they have against governments), and Organization of Government
- no candidate for office, and no organization supporting any candidate, and no supporters of any candidate, shall spend or allow others to spend for them more than X money campaigning except for money given to them by the Government for this purpose. The Government must distribute an equal amount of money to each campaign, except for the incumbent, who may get less. The government may set standards for a campaign to meet before it is considered elgible for funds. The intent of this section is to prevent concentrations of power from having exerting disproportionate influence in votes. This section in no way intends to prevent citizens and groups from communicating their views via inexpensive media such as letters, websites, emails, etc. The government must set the threshold X so that individuals are able to.
Anyone who violates this section is a felony. Evading the intent of this section by spawning a multitude of organizations, each one of which can then spend less than X, is a felony.
For votes about issues instead of candidates, this section applies in full, with "candidate" replaced by "issue".
- any right or privilage given to organizations (i.e. the Bill of Corporate Rights) must also be given to individuals; i.e. the Bill of Corporate Rights must be a subset of the Bill of Individual Rights. Any law granting a right, protection, or privilage which does not specify individuals or corporations shall be assumed to apply to both.
- the government may not coerce anyone to commit violence against anyone else, except in the ways in which any corporation may compel this (e.g. you can fire someone for not being violent, but you can't put them in jail)
- unless specifically exempted in this document, any law which applies to any individual also applies to any officeholders (e.g. there are no "executive privilages" except as defined in this document)
- "coerce" in this document shall be taken to mean either the application of force, or the threat of application of force. making a law requireing something is considered a threat of application of force.
- the government may not spend more than it earns in any fiscal cycle
- the government's finances must go through the same audit procedures.
- the details of "secret" government expenditures may be exempted from the audit, but the accurate sum of these expenditures must be included as at least a single item. anyone misreporting, failing to report, or aiding the misreporting or failure to report the cost of government expenditures, including secret expenditures, is guilty of a felony.
- the government must make a list of
- the laws which bind each citizen, excepting the laws which deal with specialized occupations (e.g. laws regulating finance), must be published in a booklet which each schoolchild is given free of charge and reads. The laws must be concise enough such that a typical child of age 12 can read and understand the entire booklet within 1 month without rushing. The level of detail of these laws must be sufficient to describe the set of actions which is illegal for an individual (excepting in the context of specialized occupations) [this sentence is redundant unless you want to allow sentencing guidelines and the like to be kept out of the booklet]. They must also include the Consitution and the structure of government, including the procedure of the justice system. They may omit "implentation details" (e.g. specific encryption protocols specified in law for governmental communications).
(todo: this is unclear; what don't they have to include?)
No occupation shall be considered "specialized" if more than 10% of the population have done it. Laws which apply to "business in general" such as laws against conning people are not considered to apply to a "specialized occupation".
- the constitution may include examples and statements of intent as well as the law itself
- the government may make no law respecting the establishment of a specific religion. Outside of this section, churches may not be distinguished from corporations (e.g. the government may not refer to a deity anywhere in the law; may not grant special tax breaks to churches; etc)
- note that constitution is binding upon the state, and that any law contraditory to the constitution is null and void
- elastic clause in bill of rights
- from New Utopia: "Every law, regulation, or resolution having the force of law, shall relate to only one subject, and that shall be expressed in the title"
but how to allow "deals"? maybe special composite acts are allowed
- from New Utopia: "Every law, regulation, or resolution having the force of law, shall contain a concise and definite statement of the constitutional authority relied upon for the enactment of each proportion of the Act"
- New Utopia specifically says that only Courts can judge if a law in consistant with the constitution -- but i might extend that
- New Utopia explicitly defines the hierarchy Constitution --> Treaty --> Statue --> regulation
- supermajority needed for every action expanding government power or complexity
- simple majority needed for repeal, or for actions reducing government power
- exception: simple majority needed to pass last year's budget AS IS. Supermajority needed to pass bigger budget. simple majority needed to pass smaller budget.
- every spending increase must be matched either by a tax increase or by another spending cut (a "pay as you go" system). constitutional amendment req'd to overrule this.
- constitutional amendment requires two referenda, and two votes by congress, with an election in between the pair (??: too much?)
- any citizen has the right to test anyone's security if they notify first
- freedom of freaking speech -- really
- freedom to walk in others' forests
- no person shall be held without charge for more than 14 days
- no person shall be held without being convicted by a court of law for more than 1 year
- no person shall be held without being provided access to an attorney of his or her choice
- these rules apply whether the person is a citizen or not, even if they are a prisoner of war or unlawful combatant or whatever -- they apply to every person
- the government shall snoop on no more than 1000 different people every year without notifying them that they are being snooped on, and exactly how they are being snooped on. outside of these 1000, it shall be unlawful to sanction or to threaten or otherwise to place any restraint upon people in retaliation for talking about snooping, including specifics of who is being snooped upon
- the government shall post a public list of every person in custody. there shall be no secret disapearances
- "national security emergencies" or states of war or any other excuse do not constitute an exception to any rule except where this constitution specifically says they do
- a goverment official who breaks the constitution by violating or by ordering to be violated or by not preventing the violation of any of the human rights or due process guarantees has committed a felony and shall be imprisoned for a period of not less than 1 year
- in interpreting this document [the constitution], interpreters are urged to consider applying the reasoning of the document to analogous circumstanced created by future technologies which weren't in widespread use at the time of the creation of this document. for instance, according to this standard, the 4th amendment of the U.S. constitution should also apply to wiretapping, even though wiretapping didn't exist at the time the constitution was drafted, because wiretapping a private conversation is analogous to invading someone's home. HOWEVER, in choosing between such a non-strict interpretation and a strict, by-the-letter interpretation, the interpreter is required to choose whichever one provides greater personal freedom and less power to government. For instance, in the case of the U.S. 4th amendment, an interpretation that government wiretapping was indeed unreasonable search and seizure reduces government power and expands personal freedom, hence in this case it is the correct choice.
- when referenda are supported, voters should vote on at least TWO things for each issue; (1) yes or no, (2) if no, "i like the general idea but i don't like this implementation", or "sounds okay but i don't want to force the legislature", or "i don't like the main idea of this policy" or "other"
- "space for meta discussion": a certain proportion of the year (one month) during which congress would be in session would be reserved EXCLUSIVELY for constitutional amendments and for amending congress's rules for itself
- any citizen has the standing to prosecute for any violation of a law; but the govm't DA's office can deny private citizens the right to prosecute cases within 7 days of the filing of the intent to file
- method for any citizen to punish executive-branch officials who break the law
This whole Roe vs. Wade stuff shows up a fundamental problem in our political system.
The constitution is pretty old and could use a new release. However, it's usually politically infeasible to change it (I mean, heck, our constitution still doesn't even have a simple gender equality amendment: http://en.wikipedia.org/wiki/Equal_Rights_Amendment).
Hence, sometimes the judiciary changes it (evidence available upon request) (not that i blame them; they are just trying to faithfully adapt the spirit of the law to circumstances which couldn't have been imagined by its writers; also, the law is flat out ambiguous in some cases). But this sucks because it's not really fair for a handful of unelected people to change the law.
People know this is unfair and there is often a lot of dissent in those opposed to the change. But once an issue is decided by the judiciary, there is less pressure on the legislature to address that issue. So the issue just lives on, seeming forever "unsettled".
Ironically, often the judiciary changes the law in a way that a clear majority of the people support anyway (example: Roe vs. Wade; I think the majority of US citizens would support a right to have an abortion with certain limitations). If the legislature would just amend the constitution in the way that the people support anyway, it would be clear to everyone what the score is. But there is no pressure to do so since the change would just confirm what is already being done. The result is what we see now with Roe vs. Wade; the minority still thinks the issue is unsettled and so keeps fighting.
I propose a constitutional amendment that says that the judiciary can, if they choose, settle a case and at the same time create a "suggested constitutional amendment" that would clarify whatever issue the case was based on. The legislature is forced to vote on this amendment with a majority vote (not the usual 2/3s) within 2 years. If they fail to pass it or fail to bring the issue to a vote, the amendment stands. (this gives a lot of power to the judiciary so maybe you would want to give the president the power to veto the "suggestion" too, at the time when it is made (not 1.5 years later, right before the final vote)).
This formalizes the power that the judiciary already effectively exercises to change the constitution; but instead of making them have the last word, it allows the judiciary to force the legislature to consider crucial issues and to make a decision one way or the other.
A stronger variant of the proposal would have the legislature forced to vote for one of two amendments, which are the logical negation of each other (so that they can't dodge the issue by just voting "no" to any amendment). A weaker variant wouldn't force a special simple majority vote, but would rather only allow the supreme court to initiate a normal constitutional convention, whatever that means.
-- bayle
seems like New Jersey already does one of my recommendations, namely, let the Supreme Court (of NJ) force the legislature to rule on some issue:
http://www.nytimes.com/2006/10/26/nyregion/26trenton.html
- tax deductions must be treated as budget expense items -- in fact, so must anything else having the effect of a payout from the government to something else