.
. INTRODUCTION
As a citizen deeply concerned with the trends of incivility, ineffectiveness and deep cynicism that plague our country. I put would like to put forth an audacious, idealistic and radical proposition which yet is legal, moral and, I believe, desperately needed.
The proposal is nothing less than the implementation of a Constitutional Convention, not only in order to institute reforms that would increase the efficiency of the delivery of government services, but, more importantly, to streamline the very structure of the government itself pursuant to the principles of transparency and justice. In the best traditions of the case study, the first person pronoun will not reappear for the balance of this note.
The justification for such a radical undertaking is that the present governmental structure is mired in a perpetual crisis of inefficiency, injustice and self-serving myopia. The reason for this is that the structural foundation is a disarticulated accretion of precedent, tradition and often venal conflicting interests. Our Constitution has long suffered from two major deficiencies that have served to hinder the correction of these maladies. The first is historical and political; fundamental compromises had to be made in order to facilitate the original ratification. The second is structural; the most important and fundamental legal document of the nation lacks something that every valid contract must have, namely, a definition of terms.
Before the contents of such a Convention can even be realistically discussed however, assurances must be in place to guarantee that the agenda will remain strictly limited. This can be accomplished with a fixed public agenda and a binary set of acceptable results. The set of
reforms would have to either be accepted in toto, or, since the reforms are hierarchal, ‘lower’
ones could not be implemented without their superordinates.
As for the reforms themselves they would be in the form of a definition of terms and three sets of
Constitutional amendments: legal reform, tax reform and a streamlining of the structure of the
Federal government.
DEFINITION OF TERMS
In order to provide the most exacting standards of law, it is necessary to have a common set of
defined terms. Moreover, these terms must be defined by metalinguistic standards. This simply
means there must be no synonymy. Every term must be definitionally biunique; one definition to
every term and one and only one term for every definition.
The most fundamental undefined terms in the US constitution are ‘liberty’, ‘justice’ and ‘right’.
These words are so saturated into our nation psyche and lexicon that we tend to think of them
impressionistically. However, they are foundational to the rationale for our way of life. If our
nation is to truly be based on these principles they must have meaningful, applicable definitions.
In order to provide the necessary documentary definitions, we must support them with the
definitions of other terms which may not appear in the Constitution, but which are nonetheless
indispensable to its execution. First and foremost among these terms is morality. A just legal
system is impossible without a moral foundation. This concept is in grave danger in the present
social, political and intellectual climate of our nation.
Morality is a constitutively necessary concept which is yet misunderstood by the vast majority of
the population. It is not a list of do’s and don’ts. It is an activation of the will which results in
positive or negative consequences. As such it is an internal, inalienable function. It is
nevertheless very real and is an inherent constituent of justice. Injustice/crime is a hyponym of immorality. ‘No justice, no peace’ is not a threat or even a warning. It is a simple statement of fact.
Nor is the validity of morality based on any religious tradition. At most it an ancillary benefit of observant religious practice. There is no reason why an atheist cannot be a perfectly moral individual. Morality is also the ultimate justification for the distinctive status of governmental power. This is an indispensable concept since the one thing that distinguishes the government from any individual or other group of individuals is the moral authority which licenses the government and its agents to kill, confine and confiscate assets. Since this is government’s distinguishing characteristic, it is a serviceable invariant by which to classify the three most basic forms of governance. All specific forms of government must perforce fall in to one of these three categories.
Under Authoritarianism there is negative moral authority. That is, there is no legitimate moral authority. Power accrues to any individual or group able to muster the wherewithal to wield it. Under this system the welfare of the populace is completely dependent on the disposition of the ruler for good or ill. History is replete with examples of this form.
Under Utilitarianism there is subjective moral authority. This means that while there is public acknowledgement of a moral standard by which all, including the government, are expected to abide, this standard is subjectively determined. Utility is a subjective value which begs the question of whose good is good enough to set as a general standard. It may be based on majoritarianism, ethnicity (see e.g. Lebanon), culture, or potentially anything else. Lebanon, Algeria and Weimar Germany are all examples of the weakness of a system of democracy that can democratically nullify itself.
Under Libertarianism the standard of morality is objective. Objective means empirically demonstrable or verifiable. Morality means a voluntary act of will which results in a positive or negative consequence. The determination of whether a given act is moral or immoral lies within its consequence. Given that morality is an inalienable act of will, it naturally follows that without the freedom to choose, the notion of morality is inoperative. There can be no morality without choice.
METAPHYSICAL FOUNDATION
The most fundamental basis for the assertion of the validity of this analysis lies within human nature itself. Whether one believes that this human nature in of divine or natural provenance is irrelevant to the proper application of a system of government and law. All human beings have two things in common which are essential to applying an objective standard of morality for the purposes of just governance. One is that all people are moral, rational and creative. For as little of these qualities as any individual may possess or exhibit, all people are moral, rational and creative to a greater or lesser degree. The other universal characteristic of humanity is our fallibility. Humans are not only imperfect, but imperfectible. All humans are inherently limited to some degree. Any proper system of law or governance must explicitly take these facts into account.
The natural consequence of these facts for the law is that if the implementation of justice is its goal, as it must be, it must necessarily take the facts of human nature into account. Again there are only three possibilities of interaction using consent as an invariant: permission, liberty and license. Under the conditions of permission, consent is externally constrained. That is, the power of consent lies with some entity who is not the actor. The default is negative, the affirmative must be provided from without. License is the complete antithesis of permission. Where
permission is defined by external constraint, under license there is no constraint at all. One simply does whatever one wants.
Under the condition of liberty the constraint on consent is inherent and therefore self-limiting. Actions in the context of liberty are limited by the consent and liberty of others. Where issues of consent conflict there is the proper place for the courts (specifically) and legislatures (generally). Interests may conflict, rights never do.
Finally, we must examine the application of these metaphysical principles to the functions of government. Broadly speaking any legitimate government is charged with the provision of three kinds of services. The first is justice, the establishment, maintenance and defense of its citizens’ rights. Examples include the system of courts and law enforcement. The second is indivisibility, the provision of those services which only the government can provide and from which all citizens necessarily derive benefit. Such services as national defense, a postal service and a national currency fall into this category. These two functions are fixed and constitute the most basic duties of governments without which regimes and societies would not long endure. The third duty is more variable. Publicity represents those services which the government can more effectively provide than the private sector. This an indeterminate and flexible area in which the private sector may legitimately compete with the government in the provision of services. The government must demonstrate without resort to compulsion its ability to more efficiently deliver a given service. Examples of such services include education, healthcare and welfare services. It therefore follows that all such services fall into one of three categories: rights, benefits and privileges.
Two binary parameters define and distinguish these three conditions: inherency and universality.
Rights are inherent and universal. There is really only one true right, which may variously manifest by circumstance. This is the right to freely act within the constraints of consent. Examples include the right to self-defense and to refute accusations in a court of law. Benefits are also universal, but are exherent. They constitute a service to which there is no inherent right, but which the society has decided to bestow to all. Public education is an example of this service. Privileges are exherent and exclusive. An example of this is the possession and use of a driver’s license.
THE PROPOSAL
The proposal itself, as previously mentioned, consists of a definition of terms, which is essentially a statement of principles. This is followed by three sets of specific amendments. The first set of amendments implement legal reform, the second tax reform and the third set propose changes to the actual structure of the Federal government itself. Each set of amendments is listed in hierarchal/priority order, with the highest ranking appearing first.
DEFINITION OF TERMS
Whereas the force of law is shaped in language, it is therefore necessary to define the foundational terms of the law in objective, empirically verifiable terms. Such terms include Right=the free exercise of any consensual act.
Liberty=the (default) state of exercising consent.
Consent=any act freely given provided it meets the four criteria of competence, completeness, primacy and privacy.
Competence=the ability to rationally understand the likely consequences of an act, the legally presumed state of adulthood.
Completeness=the entirety of consent among each and every participant of any given interaction; the legally presumed state of all intransitive (non-interactional) actions.
Primacy=the nullification of consent protection pursuant to just (legal) retribution for the commission of violations against the consent of other parties.
Privacy=the right reserved to the majority of a polity or jurisdiction to restrict the public exercise of a given activity and the corollary right reserved to the individual to the private exercise of any action meeting the criteria of consent.
Individuality=all rights accrue to individuals; all group rights are exclusively thereof derived.
Morality=any voluntary act with a beneficial consequence.
Immorality=any voluntary act with a harmful consequence.
Crime=transitive immorality, any immoral act committed against another party or parties.
Amendment I.
§ 1. Congress shall make no law restricting the free exercise of consent as defined herein.
§ 2. Congress shall not exempt itself singly or collectively from the implementation of any law.
Amendment II.
§ 1. All and any Constitutional rights, procedures or guarantees not altered by this amendment remain in full force.
§ 2.All criminal prosecutions shall be limited to three stages; it shall be determined by jury whether in fact a crime has been committed subject to the criteria herein defined. It shall be determined by jury whether the defendant committed such crime. It shall be determined by jury whether compensation is an available remedy to the victim.
§ 3. Juries: Juries shall consist of six jurors selected from a professional pool in each district or jurisdiction, to stand for election every year and subject to impeachment and trial for malfeasance. Jurors, subject to the constraints of procedure, shall be permitted the opportunity of cross-examination. . It shall be the duty of jurors to determine, in conjunction with the presiding judge, the results of each of the three stages of trial. All dispositions, including conviction, shall be by a simple majority of six jurors and the presiding judge.
§ 4. Penalties: Sentencing will be determined by the presiding judge after determination by majority of whether compensation is possible to the victim. Evidence for said determination shall be presented in open court.
For a compensable disposition, victim shall be compensated with punitive interest. Convict shall bear the cost of prosecution and suffer the supervision of the court until such time as all sentencing requirements are met.
For a non-compensable offense, or for a compensable offense for which a convict declines the option of compensation, convict shall serve full sentences of imprisonment up to and including perpetuity.
§ 5. Appeals: All convicts shall be entitled to one Federal and one state appeal at government expense if necessary. Said appeals may only be based on the refutation of one or more of the three dispositional findings of the relevant court.
§ 6. There shall be no death penalty excepting for espionage or treason in time of war, or for the leaders of regimes that have committed crimes against humanity.
TAX REFORM
Amendment III
§ 1. Under the principle of individuality herein defined, no group, including any form of corporation, may enjoy the rights of an individual or recognition as such. As a condition of the chartering privilege, all corporations must conform to Federal standards of (non)-discrimination.
§ 2. All income, regardless of source, shall be treated equally under the law, subject to one common set of tax brackets.
§ 3. Only consumption, income and real property may be subject to taxation, excepting that sole owner-occupied homes free of lien and/or mortgage shall not be subject to taxation by any government entity. There shall be no taxation on any corporation or business, but such entities shall be liable for user and licensing fees for mandatory or optional government services.
§ 4. The government shall be prohibited from setting prices and wages except in time of national emergency as determined by Congress.
Amendment IV
§ 1. Income tax; the government shall set a Minimum Wage Equivalent. All working citizens at or below this threshold shall receive the difference from the Federal government through the Internal Revenue Service. This group shall constitute the bottom tax bracket. The remaining taxpayers shall be evenly divided into fourths by income. The lowest earning group shall pay no
income tax, but simply receive acknowledgement of registration. The middle group will be taxed in a range of 10-19%, the next group in a range of 20-29%, the highest income group in the range of 30-39%. The only deductions shall be for dependents. The highest earning bracket shall receive no deductions, the next highest deductions of half value.
§ 2. Graduated sales tax; tax rate shall start at 1% on the dollar, thereafter every power of ten increase in spending shall be taxed at a rate increase of 1% up to a ceiling of 10%
§ 3. Value added tax; the government shall impose a value added tax of not more than 5%.
§ 4. All property taxes, subject to the constraints of Amendment III, § 2, shall be reserved exclusively to the states and their inferior jurisdictions.
FEDERAL RESTRUCTURING
Amendment V
The Senate
§ 1. Senate shall no longer originate legislation. The Senate shall facilitate the legislation of the Congress. It shall have the power to Ratify, Veto, Approve or Disapprove bills submitted from the House of Representatives. The Senate may ratify or veto a bill by a majority of two-thirds of its members. A vote of simple majority shall approve or disapprove a bill. An approved bill need not be signed by the President to become law. An unapproved bill must be signed by the President to become law. All other Senate duties shall remain unchanged.
§ 2. After every decennial census the Senate shall redistrict the districts of the House of Representatives. Redistricting must comply with a hierarchal set of criteria. The first of these shall be equality of population. The second shall be geographical compactness. The third shall be state boundaries. The fourth shall be inferior jurisdictions. The last shall be any other community or communities of interest.
§ 3. The office of the Vice President shall be abolished. A President of the Senate shall be elected by popular national vote for a term of four years at an interval of two years from the Presidential election. The President of the Senate shall participate as a voting member in all Senate business and shall be first in the line of succession in the circumstance of Presidential
incapacitation or death. In such event, the Senate shall elect one of its members by simple majority to serve the balance of the vacated term.
Amendment VI
The House of Representatives
§ 1. All legislation shall originate in the House of Representatives. Bills shall be submitted to the Senate as described in Amendment V, § 1.
§ 2. The districts of the House of Representatives shall no longer be mandatorily constrained to the borders of the states, but shall be determined in compliance with the criteria described in Amendment V, § 2. Each Representative shall represent a district directly rather than as the representative of a state. Districts shall be numbered starting at the northeastern most district and thence numbered from northeast to southwest.
ELECTION REFORM
Amendment VII
§ 1. There shall be no limits on campaign contributions.
§ 2. No candidate shall be permitted to purchase airtime. Grants of airtime shall be exchanged for agreements of open debates with all qualifying candidates. Qualification thresholds shall be set by Congress and enforced by its designated authority.
CENSUS ENHANCEMENT
Amendment VIII
In addition to the already established procedures of the decennial census, Congress shall set a population density standard, the Conurbation Density Threshold (CDT). Any contiguous metropolitan area within the boundaries of a single state that meets this standard shall be combined into a single county. Areas left outside the new county shall be annexed to or combined with an adjoining county or counties, in accordance with a process to be determined by each individual state.
DISCUSSION
The changes here proposed are admittedly radical and they require justification, not just in terms of general necessity, but within the context of the Constitution as it already stands.
The first set of amendments is based on the general principles of liberty and equality. If being free means anything in a political context, it means living one’s life according to one’s own lights with some obvious limitations. Part of the purpose of this proposal is to underscore the unitary and inherent nature of these limitations. Liberty is binary with an internal locus of control. Permission, on the other hand, is graduated. One can have more or less of it, and the locus of control is external. Many of the negative, unintended consequences of the laws that have engendered ‘victimless crimes’ (a double misnomer), have been discussed very effectively by a wide variety of commentators. To my knowledge, however, no one has ever made a comprehensive analysis of the underlying moral basis for these consequences. The relationship between immorality and crime is known logically as an implication. All crime is immoral, but not all immorality is criminal.
The 9th and 10th amendments explicitly state that the Bill of Rights is not an exhaustive list or set. The Supreme Court has long referred to “a penumbra of privacy” in the 9th amendment. The states have also claimed the 10th as their justification for the notion of States’ Rights. I would submit that what is ambiguously referred to as ‘privacy’ is actually nothing less than consent.
Immorality brings its own natural consequences. For injustice, mala per se, we have and need the law.
One of the longest-standing and most fundamental principles of the legal tradition of the United States is equality before the law. The fact of legislators exempting themselves is nothing less than an outrage against one of the strongest and most important currents of American law and justice. No more need be said on this.
The taxation amendments are directed at a system that is sclerotic, convoluted and arbitrary. The principles upon which they are founded, as stated above, are simplicity and fairness. If there were ever a circumstance where less is more it is here. The 'taxpayer bill of rights’ (amendment III) has a two-fold purpose. The first is to simplify the mass of specializations and competing interests (loopholes). It is also calculated to eliminate what could be considered a type of social engineering, for example, where home ownership is given preference over rentals or marriage over singlehood. The second is to secure more directly and equitably the necessary funding sources the government needs to provide its services, as well as the avoidance of the taxation of static assets. Although we do not suffer ‘taxation without representation’ in the same sense as the colonials, we do so suffer our own modern version of it in the sense that our tax system is so densely and unnecessarily complex that many if not most of us need some kind of outside assistance to effectively comply with this annual necessity.
The amendments proposing changes in the structure of the federal government are all modern extrapolations of trends already extant in the Constitution. It’s not such a great leap to go from exclusive responsibility for tax legislation to all legislation. A facilitative or integrative role for the Senate is prointuitive since this body is already structurally more involved with the other two branches than the House is. Moreover, since the states are already represented in the Senate, why
should they be represented twice when, by making the Congressional districts directly representative and equal in population, the 'People's House' would certainly more nearly be so.
The census is already constitutionally mandated. Adding the CDT merely allows for a more specialized delivery of urban and rural services and recognizes the modern reality that most of us live in metropolitan areas and not in cities per se.
The election reform is designed to balance the ‘money is speech’ doctrine of the Supreme Court with the concept of fairness and access that the very existence of our Constitution implies.
IMPLEMENTATION
The two most important considerations for the process of executing these changes are to make the agenda of a Convention hermetic, that is, to prevent its potential hijacking into anarchy. The second is to disseminate the contents of the amendments to the populace as widely as possible.
To these ends a non-binding plebiscite after a certain period of time for wide and broad discussion of these suggestions would be the logical first step. If the plebiscite resulted in an affirmative result, the Congress would have a period of time to act on the amendments as a group through the prescribed constitutional process. If the Congress refused to act on the proposals, a second binding plebiscite would take place. Even after a second affirmative vote, at least six months would be set aside for further analysis, preparation and adjustment for the altered system.
The agenda would be fixed with no authorization for the introduction of any new items after an initial period when changes could be considered. And, as mentioned above, all the changes would have to be approved as a unit, or with the higher ranking amendments favored over the
lower ranking ones. Any amendment would have to be approved in its entirety, without any sections removed.
OTHER SUGGESTIONS
There are other changes that would address some of the controversies and deficiencies that plague our nation. These actions don’t rise to the level of constitutional necessity and would probably be easier to implement. They include removing the cap on the Social Security tax, conflating Medicare and Medicaid into a single, universal system and requiring firearms to be treated as we treat automobiles: mandatory registration and an earned license for use. In this last regard, it is crucial to point out that firearms are very nearly the only product specifically designed for lethality and therefore demand at least as much accountability of use and ownership as motor vehicles. Even mattresses have labels it is against the law to remove!