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Notes for the Next Constitution (Or Maybe the One After That)

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Notes for the Next Constitution (Or Maybe the One After That) Notes for the Next Constitution (or maybe the one after that) by Bradford Hatcher © 2016 Bradford Hatcher ISBN: 978-0-9824191-7-5 Download at: https://www.hermetica.info/Constitution.html or: https://www.hermetica.info/Constitution.pdf Cover Paintings: Scene at the Signing of the Constitution Howard Chandler Christy, 1940 Crow Pipe Ceremony Howard Terpning Table of Contents Introduction 5 What is a Constitution? Reform vs Reconstitution General Considerations Errors and Omissions in the US Charter Article 0 - Preamble and Objectives 20 Article 1 - Limits on Corporations 24 Article 2 - Bill of Rights 27 2a - Personal Rights 2b - Familial Rights 2c - Community Rights 2d - Property Rights 2e - Rights of Citizenship 2f - Rights Against Others 2g - Rights against the Police Power 2h - Socioeconomic Rights Article 3 - Bills of Responsibilities 86 3a - Bill of Duties 3b - Proxy Rights Article 4 - Powers Delegated and Denied 105 Article 5 - The Legislative Branch 108 Article 6 - The Executive Branch 115 6a - Department of Commons 6b - Department of Culture 6c - Department of Defense 6d - Department of Economics 6e - Department of Internal Relations 6f - Department of Justice 6g - Department of Services 6h - Department of State Article 7 - The Judicial Branch 152 Article 8 - The Censorial Branch 156 Article 9 - State and Local Governments 164 Links to Reference Texts 167 Introduction A Wall Street Journal article, dated 9-12-92, reported on a call for a multitude of lawyers from the United States to help the states of the former Soviet Union restructure and draft new constitutions and legal systems. US attorneys were no doubt the logical choice for this effort: the United States was home to 70% of the world's attorneys, more than three per thousand capita. The author of the article expressed no horror whatsoever over this thought, as though the American legal system somehow set a good example of how law should be made, understood, and enforced. Meanwhile, in American opinion polls, attorneys consistently rank among the least respected and trustworthy of all professionals, just above the lawmakers who finish dead last, and the American legal and justice systems share a similar position among institutions. Most people don't know this, especially Americans, but the US Constitution is not even close to being the best in the world today. It's hopelessly out of date, court precedent has turned much of it into weasel words in service to a corporate oligarchy, and what's left is as unenforceable as ever. In the history of a people or nation, that all-too-brief period between governments which follows the disintegration of the old, wherein new governments are constituted or chartered, marks the optimum point in time where some of the major mistakes of the past can be corrected, where the lessons of history can be most practically applied. It is a good thing that the wounds are still fresh and bleeding and the lessons about corruption, and regrets about lack of vigilance, are still close at hand. It is at this point in time where we understand most vividly some of the things that can go wrong with our human self-government. It is truly a wonder, then, why new constitutions are so often written with so much hope, trust, and confidence in the new order about to come. Designing a government should never be an expression of optimism. We should instead imagine we are designing an exhibit to house the venomous reptiles at a zoo. We love and respect these creatures. We want this exhibit to serve our better ideas, and attract a good deal of business, but we also have good reasons to keep them contained, at whatever necessary cost to their reptilian and creaturely desires. Thomas Jefferson had much to say about this sensitive point in time, even unto recommending its regular re-creation with a revolution every twenty years, and he said this about the American founding: “It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united. From the conclusion of this war we shall be going down hill. It will not then be necessary to resort every moment to the people for support. They will be forgotten, therefore, and their rights disregarded. They will forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights. The shackles, therefore, which shall not be knocked off at the conclusion of this war, will remain on us long, will be made heavier and heavier, till our rights shall revive or expire in a convulsion.” (Notes on the State of Virginia, Query XVII, 1782). Caution: Not all of the ideas presented here will be compatible with your own. But that's OK: at least we're thinking about stuff. It should be noted, however, that this isn't really written for the United States, which has some very difficult lessons to learn first. This is for any country, anywhere, to be altered and adapted to fit its place in a politically diverse world. What is a Constitution? A constitution is the document which provides the original and most fundamental legal foundation for the existence of a republic, or other form of government not founded on unwritten divine right. The word means simply to “stand up with” or “set up with.” In establishing the foundation, it locates the sources and apportionment of sovereignty and authority, sets forth the rights and duties of its citizens, and defines the structure of the government in terms of both powers delegated and powers denied. It also specifies the skeletal structure of the government that it authorizes, defining the major branches that will also form its system of checks and balances. In most countries, a majority of voters might believe something like the following: a) a constitution is a sacred contract between the government and the people; b) federal, state and local governments share their sovereignty with the people, and the constitution delineates the boundaries between these sovereignties; c) the rights of a government and its representatives are set forth in its constitution or charter; and d) the government is the primary guardian of its charter, which is also the source and wellspring of the rights of the people. But all of this is merely what a lot of people have been fooled into believing. In fact, the government should not be a sovereign at all with respect to its people, even though some would-be republican constitutions mistakenly vest the sovereignty there. In a republic, the people are the sovereign: this is what the word republic means. Political sovereignty is granted only in relation to other governments and corporations, but even here the use of the word ought to be abandoned as a bad habit of thinking. The government is not a signatory to the constitution, and so the constitution is not a contract between the people and their government. The "second party” here, the government being constituted, does not even exist until the constitution is ratified by the people. The government has no rights whatsoever against the constitution, or against the people. No rights whatsoever come from the constitution, or from the government. The constitution is supposed to be the document by which the people secure the rights that they are born with, against the encroachment and excesses of government. Rights are rights against the government and against the actions of others. Governments merely have specific and limited delegated powers. The people are born with the full complement of their natural rights, including the right to create civil and economic rights for themselves. The constitution does not bring these into existence. Rather, it secures them against their usurpation by the constituted government, under the ultimate threat of the dissolution of that government and the repudiation of its charter by an aggrieved people. The constitution is the set of terms under which the people create their government and permit it to exist. The republican constitutional idea has been evolving since the second one was ratified by the US colonies in 1788 (solid arguments can be made for the Gayanashagowa of the Iroquois Confederacy being the first). This was the first to embody the crucial ideas mentioned above. It is no longer the strongest or the best example, but it planted five major seeds. The whole theory of American government can be encapsulated in five of the founders’ clauses or statements, one from the Declaration of Independence, two from its Constitution, and two from the Bill of Rights. It is not by any stretch a coincidence that these five have never been addressed by the US Supreme Court with anything remotely resembling courage, or anything more than an irrational fear of some infinite slippery slope down into lesser levels of government power. The five are: 1) We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 2) We the People of the United States, in Order to form a more perfect Union, establish Justice, insure 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.
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