This is discussion about the proposed replacement to the Constitution. The purpose is to provide reasons for choices, arguments and counter-arguments, and try to show how the new system works as a system. I have tried to keep the best of the current Constitution (e.g. checks and balances, divided government) but with substantial improvements (e.g. foreign policy architecture, citizenship, rotation of offices.) This article is public domain: please feel free to copy it in whole or in part without attribution as you see fit. — tom sulcer november 6, 2011
Comment (continued:) I have substantial respect for the original constitution with its brilliant design of checks and balances, devised by James Madison and encouraged by prominent Framers such as John Adams. The original three-part structure: legislature, executive, judiciary — with each branch operating in a different sphere of influence but able to check the power over the others — was a brilliant way to prevent a possible future tyrant or dangerous faction from dominating politics. It worked marvelously over two hundred years, and it was particularly well suited for when the United States was a young nation, geographically isolated essentially from acquisitive rival powers by large oceans which took months to cross. Foreign policy was important, but not that important; the arrangement meant that foreign policy could be one of many tasks of the competing branches. Unified intelligent long-range foreign policy was not needed then. Different branches exerted foreign policy control, primarily the executive branch, but with substantial input from Congress (House ==> power to declare war; Senate ==> power to approve treaties) and the Supreme Court (could rule on the constitutionality of treaties.) Foreign policy was one of many tasks of the presidency.
Comment (continued): But the situation in the 21st century has changed considerably. The oceans have essentially shrunk as barriers, given rapid advances in telecommunications, travel, military warfare. A transcontinental missile can be fired from a foreign country and decimate a city in less than an hour. Terrorism has become a more dangerous, nagging, and unsolved threat. There are rival powers who could pose serious military challenges to the nation to the extent that it is becoming much more important to have intelligent foreign policy.
Comment (continued): The current constitution thwarts foreign policy for numerous reasons but the biggest flaw is this: there is not one single branch of government with exclusive control over foreign policy making. Rather, it is a divided responsibility. The chief actor — the president — has foreign policy not as a sole responsibility but as one of many competing tasks, making it difficult for him or her to focus on international matters, and he or she is subject to competing distractions. A riveting domestic scandal (such as what happened to Nixon during Watergate, Clinton during the controversy involving a sexual tryst, or Reagan during Iran Contra) means the chief executive is less able to focus fully on diplomatic matters. Further, the president may be out of office every four years, and will be out after every eight; this constant influx of new presidents makes it hard for the nation to stick to plans which take longer than four or eight years to carry out. Last, the people selecting the president — the electorate — are not in a good position to judge whether a given candidate would be the best architect of foreign policy; rather, the public votes for persons based on many criteria, including domestic concerns, pocketbook issues, and so forth as well as supposed foreign policy experience, and as a result the public may elect a president who appeals to their sensibilities on other issues but who is extremely lacking in military experience, diplomatic savvy, understanding of the world situation, and so forth. Here are a few names of presidents within the past five or so decades which have been criticized rather extensively by foreign policy analysts as being less than competent at foreign policy: Kennedy (Bay of Pigs episode), Johnson (Vietnam War), Carter (Middle East & Iran problems), and particularly Bush II (alienating allies, Iraq War II, etc.) The public elected these men.
Comment (continued:) The result of these many variables is that the United States has had a mediocre record in foreign policy — some successes, some failures — with the apparent overriding variable being how well a given president performs at foreign policy. The record is mixed. Some recent presidents handled it quite well (Nixon, Reagan, Clinton) but others were embarrassingly incompetent (Bush II, Carter). There have been wonderful successes, particularly the Cold War ending without nuclear bombs being exploded, and some disastrous failures, particularly the decade-long Vietnam War with 55,000 Americans killed and huge treasure wasted for no apparent purpose whatsoever. But foreign policy experts have long noted abnormalities with the process itself: Congress was supposed to have the power of declaring war, but then why had the nation become involved in numerous undeclared wars such as Korea, Vietnam, Grenada, etc? I argue that in the nuclear age, with pressing problems, that foreign policy can no longer have an average success rate, or be hit-or-miss, or depend on whether the public is sharp enough to select a president skilled in world affairs; rather, the structure of government, based on the constitution itself, is the problem, and needs fixing.
Comment (continued:) If one examines history, one will see that there have been few states which have consistently been adept at foreign policy. There have been savvy monarchs (Louis XIV of France, Charlemagne, Peter the Great of Russia, Napoleon, Caesar) but monarchy has (as is well known) the perennial problem of succession, so a less astute heir will undo the gains made by the monarch. The few instances when a political entity got foreign policy right — consistently — over time — was marked by a structure in which an aristocratic body, which had substantial collective experience and usually led by virtuous leaders — guided policy over decades, even centuries. The two (arguably) most prominent examples from history are the early Roman Republic, and later Britain in the 19th century. Tocqueville, writing in Democracy in America, noted that an aristocratic body was the ideal structure for foreign policy because it was like a “wise man who never dies.” Younger members learned from older ones, and became experienced and wise by devoting many years studying the world, seeing what happens. Older members die, but the group as a whole preserves an institutional memory, and has the capability to make and stick to long-range plans. It has the ability to keep promises and commitments, to shield friends, to punish enemies. The Roman Republic rarely fought two wars at once, enabling them to plan intelligently how to play adversaries against each other. In contrast, look at the United States on the eve of World War II — having to fight not one enemy (Germany) but a second one (Japan). While Rome was respected throughout the Mediterranean War, the United States is often criticized, particularly in the Arab World, with misguided policies often alternating from supporting tyrants (since they’re easier to deal with) and alienating vast swaths of the Middle East and elsewhere.
Comment (continued:) The proposed architecture of government consolidates foreign policy authority in one branch, with a hundred advisers acquiring experience and savvy from long periods of service (hopefully), and being in an excellent position to choose the best leader — the head of State — to execute foreign policy. In addition, I’ve tied citizenship to military participation such that persons who choose to become citizens have chosen, essentially, to serve in the military if they are summoned. This means that government does not have to guess whether people will choose to support a war or not; rather, government knows that it can count on people if they are needed. And this means, somewhat counter-intuitively, that the nation will be much less likely to be involved in wars since the nation will both be, and appear to be, a tougher international opponent. This branch, so structured, in my view, solves the problem of foreign policy for the reasons I’ve outlined. But creating it, of course, brings in additional problems, specifically, how shall we keep this more powerful and unified branch, itself, under control? How can tyranny be prevented? Basically, many of the checks and balances in the proposed constitution have been built to keep government in balance, to prevent tyranny.
Comment (continued:) The overall split in government, in the new arrangement, is in two parts: domestic government and national government. Domestic government (legislature, executive, judiciary) is somewhat like before, except that I have made it stronger and more unified for the purpose of keeping the national government (foreign policy advisers, head of State, military court) under control. The overall logic is that the domestic government controls the national government by appointments, budgets, hiring and firing ability, reporting requirements. At the same time, to protect the national government from a clean sweep of its members by a possibly overzealous domestic government, I have put controls and brakes to prevent too many officers from being purged out at any one time which might have the adverse side-effect of undermining long term planning and wiping out the institution’s collective experience. Further, I have divided the military, so that the president (head of domestic government) controls domestic forces or militia, while the head of State (head of national government) controls forces which may have to fight overseas; the purpose of this division is to prevent military coups and to keep the military under civilian control.
Comment (continued:) To balance out the power of national government, I have strengthened domestic government by having the president chosen from among the Senate by the House of Representatives. This brings cohesion within the legislature and executive authority. It is essentially a parliamentary arrangement, replacing a two-party system with a multi-party system (although there will undoubtedly be two major parties), similar in some respects to Britain’s, and there have been numerous examples throughout the world of having it work quite effectively. It allows domestic government to be more decisive; in the current arrangement, a president from one party may thwart the aims of a legislature dominated by the rival party, and gridlock has resulted.
Comment (continued:) At the same time, there are numerous forces keeping domestic government, itself, under control, namely (1) the impact of other well-developed prosperous nations (2) world governing bodies such as the UN and WTO (3) pared down economic responsibility — much of the burden of economic regulation has been shifted away from the federal government to individual states as part of a restored federalism arrangement (4) citizens at the local level becoming more engaged with their congresspersons through regular reporting, meetings, required voting, and so forth. I have kept or restored several original checks within domestic government: (1) bicameral legislature with House and Senate balancing & checking each other (House ==> reflecting popular mood, turnover every two years, fresh faces, control over initiating budget; Senate ==> longer terms, more experience but fewer numbers.) (2) Supreme Court retaining the power of judicial review, that is, being able to overturn acts of the legislature which it sees as unconstitutional (3) State governments will again have control over appointing their US Senators, restoring the original constitutional arrangement. Overall, I feel the proposed arrangement is vastly improved, although sometimes I wonder if there have been enough checks put on the US Senate (I continue thinking about this).
Comment (continued:) Overall, this government architecture, in my view, will be substantially superior in remedying numerous defects of the current constitution while preserving its best elements.
Article I — Congress
Frequency of assembly
Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal.
The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.
They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.
No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office.
Both Senate and House must agree on a bill before it becomes law.
The legislature must make public its decisions, allocations of funds, summaries of discussions, voting records on bills, and other matters with the exception of matters relating to national security, defense, or other foreign policy issues.
Comment: the general benefit of transparency is to reduce the risk of corruption, of bribes, of improper decisions, such that a newspaper reporter could argue for the release of key information based on this provision. Matters concerning foreign policy, such as expenditures on weapons systems, strategic overviews, threat assessments and such should not have to be divulged to the public on the grounds that this information, if learned by rival or possibly enemy powers, could hurt the nation.
Powers of Congress: Taxation
To lay and collect taxes, duties, imposts and excises;
Powers of Congress: Defense
To pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
Powers of Congress: Minting money
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
Powers of Congress: Money for military
To provide funds to support all national military forces, including armies, navies, air forces, marines, space forces, command forces, and supporting personnel;
Powers of Congress: Military rules
To make rules for the regulation of the militia and national guard forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections, prevent tyranny, and repel invasions in the event that foreign armies are within the borders of the United States;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever over the District of Columbia, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be;
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Restrictions on Congress: writ of habeas corpus
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
Restrictions on Congress: deficit spending
During peacetime, if national debt exceeds gross domestic product by 3%, then each senator must explain the excess to their own state legislature, and receive a vote of confidence from the same, and, lacking this, then the senator must vacate his or her senate seat.
Restrictions on Congress: no convicting groups without a trial, no laws after-the-fact
No bill of attainder or ex post facto law shall be passed.
Restrictions on Congress: taxation provision
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
Restrictions on Congress: export taxes
No tax or duty shall be laid on articles exported from any state.
Restrictions on Congress: no preferences for one state
No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another.
Restrictions on Congress: appropriations and accountability
No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
Restrictions on Congress: no titles
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
Restrictions on Congress: simplicity of taxes
Tax rules must be simple, straightforward and clear.
Comment: at the same time, the wording is vague enough to let officials find ways to collect the adequate revenues needed.
Restrictions on Congress: financial disclosures of public officials
Congressional officials must make full and regular disclosures of their finances to the public, including property owned, income, bank accounts, and other relevant data.
The House of Representatives shall be composed of members chosen every second year by the people of the several states. Their number from each state will be based on an actual enumeration made every ten years, in such manner as they shall by law direct. Representatives shall be apportioned among the several states within this Union and the District of Columbia, according to their respective numbers. The total number of representatives will be 435. The District of Columbia shall have at least one representative. If new states are added or subtracted, then representation shall change accordingly such that all citizens shall have representation in the House of Representatives.
Qualifications for candidates
Each candidate for election to the House of Representatives must have served in a state legislature for at least one year, be a citizen of the United States, and shall declare either membership in a specific political party or no membership.
Comment: This is substantive change. Minimum age limits were scrapped; instead, there is a requirement to have been a member of a state legislature for the purpose of promoting the rotation of offices — a practice in successful past governments (Republican Rome, New England town meetings) which (1) gave lawmakers valuable experience as well as (2) prevented corruption, since any particular lawmaker did not stay in one office long enough to be tempted by connections to special interest groups.
Comment: Candidates must identify membership with a political party. The government will be largely party-based. While the original constitution was written largely under the supposition that political parties would not play a significant role in governance, from the 21st century perspective, it is clear that parties can function adequately and bring many benefits — helping to organize political opinion — and have worked well around the world in a variety of contexts, generally.
Each citizen shall cast one vote for a particular party. States shall not place unreasonable restrictions on persons or parties on the ballots. Each state will tally the election results for each party and assign seats based on the proportion of votes; for example, if a party wins X% of the vote, then it wins X% of the legislative seats from that state. All of the elected representatives from a state will represent all of the people of that state. When vacancies happen in the Representation from any state, the President thereof shall issue Writs of Election to fill such vacancies. The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. Each representative shall have one vote.
Comment: We’re moving away from a two-party system to a multiparty system with this choice. At present, the two US parties have effectively prevented third parties from even getting on the ballots; in my view, this domination by two main parties stifles discussion, prevents new voices and programs from being heard or discussed, and narrows political debate.
Comment: Voters, when voting, will essentially be expressing a preference for a party platform or set of issues. The intent is to shift public choices away from individuals (and get away from mud-slinging campaigns, personal attacks, character issues, negative advertising and such) and towards party platforms, with the hope that voters will signal their preferences for specific choices for governing and focus less on the individuals doing the choosing. Voters will vote for issues such as “Health program X” rather than whether, say, Candidate Y had an affair three years ago.
Comment: this arrangement eliminates gerrymandering. Simply, there are no geographic districts tied to a specific congressperson. Therefore, no gerrymandering. So, for example in my state of New Jersey, I may have 20 congresspersons to represent my interest, and I can choose any or all of them to appeal to. The flaw of gerrymandering has been known for a long time, but nothing much has been done to fix it; the proposed constitution makes elections for congresspersons fairer.
Comment: the wording of this choice needs re-examination.
Comment: in the US presently, there are huge barriers for so-called third-party candidates to even get on the ballot in most states. The idea is to make this easier yet at the same time, provide a mechanism to keep the list of reasonable choices to a manageable level so that voters are not beset with dozens or even hundreds of possible choices. What perhaps is needed to flesh this out is closer examination of how this is handled successfully in parliamentary multi-party systems in terms of wordings.
Length of service
Members may serve two years, after which they must not serve in the House for the following two years. Every two year term must be followed by a two year absence.
Comment: Term limits are built in with this arrangement. The current constitution has been corrupted to the extent that once a congressperson becomes elected, they can keep getting re-elected practically indefinitely (re-election rates for congresspersons seeking re-election has been consistently been over 90% over the past few decades.) Elections every two years are not fair in such instances, because incumbents have substantial advantages over challengers (access to cash contributions, free mailings or so-called franking privileges.) As a result, the incoming batch of congresspersons do not reflect the will of the people but rather reflect seniority; the Framers never envisioned for congress to be dominated by a class of professional politicians in office for life with constant temptations of corruption and abuse of authority. The proposed constitution means that every two years, people running for office are not congresspersons. Each election is fair: both persons competing to be congresspersons compete on a level playing field. And there is a healthy turnover of officials every two years.
Note: it is possible for a person to be a congressperson for two years, have a two-year absence from Congress, then win re-election a second time, or even more often; but the idea of every two-year break is to give challengers a chance.
Comment: the downside of this arrangement is that every two years, incoming officials will have less experience in government, and may make poor choices or inept laws because of their inexperience. This will hopefully be mitigated by two things: (1) the requirement that congresspersons have experience in state governments (2) the impact of the Senate (which will have longer periods in office, much greater experience, and who will be better positioned to see the longer view of things.
Comment: the two-year requirement means that congresspersons are free to not worry about re-election, about fundraising. They can focus on governing. This is how it should be. At present, under the current constitution, many congresspersons complain that much of their time and energy is spent raising money, focusing on their upcoming election campaigns, and that they have little time to study bills or govern.
The House of Representatives shall choose their speaker and other officers.
The House of Representatives shall have the sole power of impeachment applicable to any officer in the federal government including the president, head of State, foreign policy advisers, Supreme Court justices, department heads, or other officials in government. All bills for raising revenue shall originate in the House of Representatives. At the end of their two-year term, in December, the House shall choose one senator to be president for the next two years, and if the Senate approves, then he or she shall be president, to take office in January.
Comment: The House can challenge any official with impeachment; but the Senate will make the decisions. This is in keeping with the House’s being more alert and sensitive to the public’s mood and preferences, but which will be tempered by the Senate’s perhaps accumulated wisdom.
Representatives must, to the best of their ability, answer reasonable questions posed by citizens at meetings, whether in person, by proxy, or by writing or other communication.
Comment: A new provision. The intent is to increase two-way flows of information between representatives and constituents. The phrases “to the best of their ability” and “reasonable questions” gives some leeway, so that representatives do not need to answer absurd or time-consuming or irrelevant requests, and to not feel pressured to the extent of spending too much time answering questions or communicating, so that a congressperson can spend time studying legislation and hopefully making smart decisions.
Section 3. The Senate
Senators must have served for at least two years in the House of Representatives, a state legislature or as a state governor. They must have received training in the law. They must be an inhabitant of the state which they represent.
Comment: This encourages the rotation of offices. The requirement of previous governing experience is key since, hopefully, the persons who reach the ranks of the Senate will have substantial knowledge about how governing works. Further, there are numerous benefits which spring from training in the law — the ability to argue logically; familiarization with rules and procedures; a sense of fairness and respect for tradition. Senators will play a key role in lawmaking, so it seems reasonable that they have professional training in the law.
The Senate of the United States shall be composed of two senators from each state, chosen by the state legislature thereof for six years; and each senator shall have one vote. If vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the governor of the respective state may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.
Comment: This provision restores the power of state governments to appoint senators. In my view, the current constitution was perverted when an amendment was passed in the early twentieth century which required that senators be chosen by direct election from voters. This was problematic, in my view, since there was little distinction between House congresspersons and Senators. It undermined state authority, and essentially meant that there was little distinction between the House and Senate (since both groups were elected by popular vote by persons in their state).
Comment: In my view, the caliber of Senators will be improved if they must be chosen by state legislatures rather than by popular vote in direct elections, since the legislators doing the choosing will more likely have greater experience and knowledge to assess candidates. They can interview them in depth. I believe there is greater likelihood (although of course no certainty) that state legislators will choose smart lawmakers who do not have to appeal to the public, to have good speaking skills or look good in television ads.
Comment: Since each senator will be like a representative of a particular state government, the representative can take the state government’s wishes to the national legislature.
The Senate shall choose their officers, and also a president pro tempore.
Senate powers — Judging impeachments
Senate powers — Choosing foreign policy advisors
Comment: my concern (Nov 14 2011) is that the Senate overall is too powerful relative to other parts of domestic government, and maybe new checks or limits are needed?
Senate powers — Confirmations
Senate powers — Legislation
The Senate may propose or concur with amendments regarding appropriations as on other bills.
Senate powers — Duties
Senators may be summoned by their state legislature to explain foreign policy decisions and to answer questions posed by state officials, but a particular senator may not be summoned if the departure meant insufficient remaining senators to constitute a quorum.
Article II — The President
The executive power shall be vested in the office of president of the United States of America.
The president must be a member of the Senate to be eligible for the presidency.
The president shall be chosen by the House of Representatives at the end of each two-year term with concurrence by a majority vote in the Senate, and a new senator shall be appointed by the same state as that of the senator selected as president. If a president is removed by a vote of no confidence, then the House shall elect a new president, subject to confirmation by the Senate, and the president shall return to the Senate unless their term as a senator has expired.
Comment: the president is chosen at the end of the Representatives’ term since, by this time, hopefully, they will have had enough experience in national government (two years), to select a capable leader. It gives the House, in one sense, a check on the Senate. At the same time, by requiring that the official selected be a Senator, this guarantees that the individual selected will have excellent experience in government, and is consistent with the practice of the rotation of offices.
Removal from office
In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the House shall choose another senator to act as president, and such officer shall act accordingly. If the president will be unable to perform his or her duties for a week or longer, then the House shall select a temporary president to fulfill his or her duties until the period of disability is over.
Each week, at a time scheduled by law, the president must appear before the House to answer questions in a half-hour-long session broadcast to the public.
Continuation in office
Each week the president may continue in office provided there is no vote of no confidence, in which case the president is removed from office immediately and he or she must return to the Senate, and the extra senator filling the former president’s seat (in his or her stead) must step down, and a new president must be selected. The maximum total length of office of a president is six years, after which he or she is prohibited from serving as president at any time in the future.
The president shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.
The president shall take care that the laws be faithfully executed. He or she shall manage the executive operations of domestic national government, including agencies created by Congress including the Treasury, Attorney General, regulatory agencies, and others which enact and enforce the laws of the United States. He or she shall be in charge of domestic security including crime prevention, counter-terrorism, and the public welfare. He or she shall appoint public ministers with the advice and consent of the Senate. The president may require the foreign policy advisors to appoint a new head of State, and he or she can remove the head of State from government entirely but only with approval by two thirds of the Senate.
The president’s sphere of authority is limited to domestic matters. He or she shall not interfere with making or executing foreign policy. He or she may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective office. The president shall be commander in chief of the militia of the several states, when called into the actual service of the United States. and be the supreme commander of all national guard forces of the states. The president shall have power to grant reprieves and pardons for offenses against the United States, provided that at least half of the Senate concur, except in cases of impeachment. The president shall nominate justices of the Supreme Court, subject to approval by the Senate. The president shall appoint all other ministers and staff positions necessary to run the government. The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
He or she shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he or she shall think proper.
Article III — The Supreme Court
The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.
The Supreme Court shall have nine justices.
Length of service
Justices can serve up to sixteen years, at which time they must resign.
Justices shall be nominated by the president, confirmed by the Senate. They must have at least ten years of substantive experience in courtrooms as trial lawyers or judges.
The justices shall elect one of their number to be Chief Justice, who shall serve provided there is consent among the members, and he or she shall assign judges to write opinions.
The judicial power shall extend to all domestic cases, in law and equity, arising under this Constitution, the laws of the United States, or which shall be made, under their authority, in relation to domestic matters, and to all controversies between (1) two or more states (2) between a state and citizens of another state or between citizens of different states (3) between citizens of the same state claiming lands under grants of different states. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. The Supreme Court can declare a federal law to be unconstitutional if and only if at least seven of the nine justices concur, and it can not declare a state law to be unconstitutional.
Comment: This draft tentatively keeps judicial review. I wonder whether this is best. I have studied this subject considerably and frankly it is not clear to me at this point whether keeping a practice, which essentially turns judges into legislators with veto ability, is wise. What’s needed is further study of how legislation interacts with the judiciary in other nations which don’t have judicial review.
The Supreme Court must deliver an official opinion, when asked by either president or Congress, including a vote count by the justices, about whether a proposed law is constitutional or unconstitutional, but the opinion is not binding on whether a proposed law becomes a law.
Article IV The Department of State
Comment (continued): Second, checks and balances are preserved in many respects. The legislature remains bicameral, with House and Senate balancing each other. The House has greater numbers but less experience. The reality of our world is that other nations — rival and friendly governments — serve as an effective check on our own government in many ways. If the US regulates business unwisely, investments will flow to competing nations. Since individual state governments will have much more power to regulate commerce within their state borders, the federal government will have less power over interstate commerce, and in a sense the state governments serve as a check on the power of the federal government.
Scope of authority
The authority for planning and executing foreign policy decisions, including matters of interrelations with foreign nations and foreign individuals, shall be vested in the Department of State and have sole authority to make short-term and long-term foreign policy decisions, and decide matters such as immigration, treaties, ambassadors, aid programs, war and peace, espionage, citizens who travel to foreign nations, foreigners who travel within the nation, and all other matters between the United States and foreign nations. It shall have power to establish a uniform rule of naturalization. This department serves at the behest of the Congress and President and is fully accountable to domestic government for all of its actions. It shall consist of three branches: the foreign policy advisors, the head of State, and the military court.
Comment: The underlying principle is to reorganize elections so that citizens elect the domestic government (president, Congress) which, in turn, chooses the national government (foreign policy advisers & the head of State). Domestic government is more likely to select talented professionals to run foreign policy, since people are appointed based on merit, subject to close examination by Congress and the president, and do not have to seek popular favor in elections by making promises to please swaths of constituents, and do not have to perform well in debates or appear good-looking in television advertisements. It is much more likely, but by no means certain of course, that Congress and the president will select talented leaders. In contrast, if one examines the last ten presidents elected by the people, and compare these elections to how well the presidents performed on the task of managing foreign policy, the record plainly shows wide variation, with some fairly competent presidents (e.g. Nixon and Reagan and Clinton) mixed in with some incompetent ones (e.g. Carter, Bush II).
Section 1. Foreign policy advisors
Foreign policy advisors will be one hundred in number.
If the body numbers in the hundreds, it can become unwieldy (according to sentiments expressed in the Federalist Papers) with the risk of a demagogue exerting too much control; if too small (<50 perhaps) it can turn into a clique. So a number of one hundred — the same number as the Senate — seems like a sensible middle ground permitting it to have sufficient numbers to offer a variety of diverse viewpoints, yet not being so large that internal management becomes an ongoing concern.
Candidates, when appointed, must be younger than forty years of age, with the exception being when the Constitution is ratified, in which case fifty advisors can be chosen regardless of age.
Comment: The younger than forty requirement is made with the hope that these advisers would enter the body and stay a long time, perhaps several decades, to give the group experience and consistency. If advisers were appointed who were in their fifties, sixties, or seventies, they may indeed be wiser but their length of service, on average, would not be as long. And it would be possible to assess candidates based on their experience up until their late thirties.
Length of term
Officials will be appointed for life terms, and can serve as long as they are able, or until they resign, are fired, die, succumb to illness, or are removed from office by impeachment proceedings or other legal action. When a vacancy happens, and the number of foreign policy advisors is less than one hundred, then the Senate must appoint another advisor to keep the body of advisors at one hundred.
State department powers and duties
The department of State is charged with making consistent long-term national foreign policy. It must make treaties, make rules relating to immigration or relating to visits by citizens abroad or by foreigners visiting; regulate commerce with foreign nations; define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; grant letters of marque and reprisal, make rules concerning captures on land and water and air and space; construct forts, magazines, arsenals, dockyards, and other needful buildings; and organize armies. They appoint and dismiss the head of State. Officials must make full and regular disclosures of assets, property owned, income, and other financial information to Congress.
Comment: The idea is that the State department controls all of the major internal variables influencing foreign policy.
Comment: There is a parallel structure with Congress in that the advisers appoint the head of State, in the same way that the Congress (the House) appoints the president (who is a member of the Senate).
Comment: Full disclosures to government are a way of discouraging corruption.
Comment: The advisers can dismiss the head of State whenever they wish. This solves a key weakness with the current US constitution in which an incompetent or medically distressed head of foreign policy — the president — can linger in office for year after year while foreign policy drifts. Examples are well known: Wilson in his later years; possibly Franklin Roosevelt in his later years; the second Bush was widely criticized as incompetent yet he served eight years. There are other instances. The basic problem is that the US president has too many roles — domestic and international — and once in office, removing him or her can be difficult since they are also the de facto leader of a political party.
Section 2. The head of State
Powers and duties
The head of State will be commander in chief of the national armies, and be in charge of espionage agencies, ambassadors, and all staff and personnel related to these functions. He or she shall make all military appointments. He or she shall shall receive foreign leaders, including foreign heads of State, ambassadors, and others at his or her discretion.
Section 3. The military court
It shall consist of eleven justices.
Comment: why eleven? This choice is somewhat arbitrary; I wanted an odd number to prevent tie votes and help the group reach decisions each time. Three or five or seven might give too much power in a few hands; nine might have been sufficient, but eleven I chose simply because it’s a different number than nine (to make it intellectually more distinct from the Supreme Court which has nine) and that more members would give this court a potential means to examine any particular cases in more depth, assuming that the cases coming before this body might be more complex (possibly involving the laws of other nations or the obscurity of wartime or hard-to-chronicle events).
Justices will be appointed by the foreign policy advisors and confirmed by a majority vote in the Senate. They shall serve for terms up to fifteen years. Each justice must be a lawyer with experience handling military or international cases. Any particular justice can be removed by the Supreme Court if there is concurrence by seven of the nine Supreme Court justices.
The military court will have the final word in interpreting and judging all matters relating to foreign policy, including foreign relations, treaties, acts by citizens or soldiers abroad, or by foreigners in the United States. Its basis is military law subject to stare decisis and a respect for precedent. Its judicial Power shall extend to: all treaties made, or which shall be made, under the authority of the department of State; to all cases affecting ambassadors, other foreign policy officials and consuls;–to all cases of admiralty and maritime jurisdiction; to international controversies to which the United States shall be a party; to controversies between a state, or the citizens thereof, and foreign states, citizens or subjects; to cases involving military discipline of the national armies, or actions by soldiers or officers thereof.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
Article V State governments
Comment: The benefits of a federal arrangement, according to Tocqueville and others, are to reap the economic benefits of small size but combined under a national umbrella of defense. The federal government would decide matters if disputes happened between the states. But it was not expected that Washington DC would be a one-size-fits-all economic regulator (which in many respects today it has become). Rather, each state would be like an experiment in regulation, trying different approaches, passing different laws, trying to build a framework which was appealing to citizens, workable for businesses and workers and unions, and protected property rights. Economic regulation within a state was much more likely to be sound because lawmakers were physically closer to the people and hopefully more knowledgeable about what they wanted. Decisions were likely to be tighter — reflecting the needs of particular inhabitants — rather than having to apply to over 300 million people (current US population expected to be 350 million as of 2050.) And if economic lawmaking was ill-informed, citizens of one state had the option to move to a state which regulated more wisely while, at the same time, not having to sacrifice one’s national identity. State power empowers citizens and allows them an out — an escape — from bad economic regulation. Further, state governments could learn from other state governments — to see which rules or policies were working, and in a sense, the fifty states could improve regularly by sharing data and looking at how the experiments of other states fared. In contrast, in the current structure, Washington can make a bad law, and the whole nation has to suffer under it, and there is no alternative internal domestic structure to alert people or officials that the particular policy is ineffective or counterproductive.
Comment (continued): The counter-view is that there is a benefit to uniform regulations. It makes it simpler. There is only one law to learn. So a business in one state can move to another, or set up operations in another, and not have to hire new lawyers skilled in the laws of a particular state.
Comment (continued:) So to try to get the best of both worlds, there may be some aspects of economic regulation in which a majority of states would like a specific arrangement, and in such instances, the entire nation will have to comply.
Regulation of commerce
State governments shall have full authority to manage all domestic issues within their state, including the regulation of commerce as well as rules regarding business, education, the professions, health care, insurance, taxation, and transportation. States must make their rules and procedures clear to neighboring states, businesses, employers, workers and visitors. If a majority of state governments favor a specific plan regarding a certain industry or economic sector, then they may ask Congress to make rules which apply to the entire nation for that industry or sector, and this arrangement will be in force as long as a majority of states agree to this arrangement.
Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.
A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it’s inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
States have full authority to specify rules regarding citizenship in their state, with the exception being that states can not offer state citizenship to persons who are not citizens of the United States. Persons can not be state-citizens of two states, but must choose citizenship in only one particular state; in matters where state citizenship is undecided or disputed or unclear, then the matter will be decided by laws set by Congress.
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.
Article VI Citizens
Citizens are members of the body politic of the United States who fulfill the duties and enjoy the privileges of citizenship, and who are recognized as citizens by the government and by fellow citizens, and who recognize the Constitution as the legitimate authority of the United States. Citizenship is a relation between the person and the state which is chosen voluntarily by both person and government and which is characterized by effort over time by both. The relation can be dissolved by either the person or the state or by fellow citizens only through due process.
Becoming a citizen
Persons eligible for citizenship must be at least eighteen years of age, be of sound mind, be not substantially dependent on another person, be aware of the duties and privileges of citizenship, and be not a recipient of substantial government aid. To become a citizen, applicants must choose citizenship freely and without duress in a public ceremony and:
Requirement — oath
… (1) affirm an oath of loyalty to the nation and to fellow citizens;
Requirement — individual rights
… (2) make a commitment to support individual rights;
Requirement — public signing
Comment: one of my many problems with the current conception of citizenship, as it is understood in the present arrangement, is that it merely happens. There is no choosing. Nobody thinks about what, if anything, citizenship means. A person, born in the United States, becomes eighteen years old, and whoosh — they’re a citizen automatically without having to do anything. The idea of the public signing — of a person deliberately choosing to become a citizen — is, in part, to prompt people to think about what it means, and to value citizenship as an important relation and aspect of their lives.
Citizens must vote, attend regularly-held local government meetings, attend jury duty if summoned, serve in the armed forces if summoned, uphold individual rights, obey the law, pay taxes, and defend fellow citizens if government becomes tyrannical. Citizens traveling to foreign nations are bound to observe rules and guidelines issued by the department of State.
Comment: Voting here is a requirement, not an option. When huge swaths of the electorate don’t vote, as with the current arrangement, their views are kept out of the political process, distorting choices, since the persons who actually take time to vote have relatively more influence and tend to be somewhat more activist. This can lead to polarization and disenchantment.
Comment: The purpose of the meetings is to help citizens and elected officials stay in touch with each other, to learn what is going on. There should be a limit of how many hours are required per year for attending meetings, perhaps four — one every three months perhaps, so that this task does not become too burdensome to people or such an extended time commitment that it interferes with people doing their regular jobs. But regular meetings mean that people have a chance to learn the give and take of argument, to learn to participate, to keep informed about political developments, to be reachable when there are complex issues needing to be discussed. It is a vital exercise in government. Further, citizens can get a sense of who the best representatives are, and elect them.
Comment: Further, the pledge to serve in the armed forces is important because it prevents government from having to guess whether it can count on citizens to fight or not, if war comes; the result is the government is in a stronger position with respect to jostling on the international stage, which may mean, ultimately, that no wars are necessary. Government will not have to scramble to hire recruits or count on the most unreliable soldiers — mercenaries — but
Citizens are entitled to equal protection under the law, to due process, to be protected by the Bill of Rights, and to be represented by national government when physically out of the nation such as at a foreign nation or territory, and to enjoy all privileges pertaining to citizenship as Congress and states may decide. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
Citizens, assembled in a citizens’ meeting, have the power to summon fellow citizens to attend meetings or to request an explanation from a non-attending citizen about his or her absence. Citizens can initiate legal proceedings against other citizens for failing to observe the requirements of citizenship.
Citizens must assemble regularly to discuss public matters. Meetings shall be of limited duration, held at times and in places convenient for a majority of citizens, and compulsory attendance at meetings shall not be more than four hours per year. Notifications of time and place of meetings shall be sent in a timely manner. Attendance must be recorded and posted publicly. Citizens may elect officers to manage these meetings and choose particular rules of order.
Citizens, assembled, can query lawmakers about past or future choices, and lawmakers can query citizens about their preferences and concerns; it is the duty of each to be responsive to the reasonable requests of the other within a reasonable amount of time. Citizens can summon elected officials at the county, state or federal level, excepting United States senators, to appear before their assembly to answer specific questions; representatives may comply by appearing in person or else by sending a proxy, or, if unavailable, by sending written responses to their questions.
Comment: lawmakers can question citizens at these meetings as well, perhaps via questionnaires or requests for a show of hands. It spares legislators having to guess what the public thinks; rather, they’ll have a straightforward way to understand the public mood.
Persons who live within the nation legally but who are not citizens are non-citizens. All non-citizens should be given regular and reasonable opportunities to apply or re-apply for citizenship, and Congress may specify which procedures or tests must be done before a former citizen can be restored to citizenship. All rights, privileges, duties and responsibilities of non-citizens, as well as designations thereof, shall be made by Congress.
Changes in citizenship status
A citizen can be stripped of citizenship by two methods. First, a citizen may willingly choose to renounce citizenship. Second, government or other citizens can present a case to an impartial jury of citizens and prove beyond a reasonable doubt that a specific citizen has failed to adhere to the duties of citizenship, or has committed some act or transgression which warrants severing the bond of citizenship. Citizenship can be removed from citizens who break the law, who fail to observe the requirements of citizenship such as voting or attending regular local meetings, who fail to show up for military duty if summoned, who commit treason, or who fail to observe proper guidelines when traveling abroad. Before citizenship can be removed from a person, there must be due process in the sense that government must observe the laws and follow proper procedures before the bond of citizenship is severed.
Protections for citizens: the bill of rights
First amendment — Bill of Rights #1 — religion, press, assembly
Second amendment — Bill of Rights #2 — militia, right to bear arms
Third amendment — Bill of Rights #3 — quartering soldiers
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, but in a manner to be prescribed by law.
Fourth amendment — Bill of Rights #4 — searches, warrants
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth amendment — Bill of Rights #5 — rights of accused (1 of 4)
Sixth amendment — Bill of Rights #6 — rights of accused (2 of 4)
Seventh amendment — Bill of Rights #7 — rights of accused (3 of 4)
Eighth amendment — Bill of Rights #8 — rights of accused (4 of 4)
Ninth amendment — Bill of Rights #9 — clarification
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Tenth amendment — Bill of Rights #10 — rights of states and people
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.
Citizens have a right of privacy. It is the duty of Congress to specify which information shall be considered private and make rules governing its exposure. Citizens have a right to view their publicly-held private information and to determine which parties or institutions have this information. Keepers of private information, including the government, have a duty to keep private information private, and may be held liable for breaches of privacy.
Comment: This is a new addition, but important. Privacy and freedom are inextricably bound up together. The current constitution does not mention privacy explicitly, although it has been inferred in various Supreme Court decisions. This provision makes it explicit. The tougher part of this will be publicly-held private information (eg medical records, school grades) and finding appropriate balances.
Government is required to treat all citizens fairly and to observe all rules regarding citizenship.
Article VII Other issues
Oath of office
The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, including officers of the department of State, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution, and must make this pledge in a public place: “I do solemnly affirm that I will, to the best of my ability, preserve, protect and defend the Constitution of the United States.”
No religious tests
No religious test shall ever be required as a qualification to any office or public trust under the United States.
Militia versus national military
The militia will be limited to defending the homeland, maintaining domestic peace, and responding to disasters. The national military will be limited to actions overseas and in other countries, such as protecting vital interests, securing sea lanes and airspace, assisting allies, and, if necessary, prosecuting wars. The militia will be led by the president; the national military will be led by the head of State.
New states may be admitted by Congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.
Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no state, without its consent, shall be deprived of its equal suffrage in the senate.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.
The ratification of the conventions of thirty-five of the fifty states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same. Upon ratification of this Constitution, the Senate may select the first fifty foreign policy advisors regardless of age, but after that, shall choose candidates who are younger than forty years of age.
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