Tip my hat to the new constitution: a poser for Noah

One of the intellectual exercises I want to tackle someday – when I get the time needed to study and think about it – is to undertake, just for fun, the drafting of a new US Constitution. (Yeah, I know, I should get out more.)

No, I’d like to re-evaluate the existing document in light of the world we now live in. Certainly Constitution 1.0 (C1) was a remarkable achievement, but it’s hardly being critical to acknowledge that it was very much the reflection of a 18th Century agrarian world that knew little about self-governance and more or less unfettered market economies.

That’s a far different animal than what a comparable set of thinkers might craft were they products of a 21st Century Information economy that knew quite a bit about self-governance and had two or three centuries of hard evidence about free market economies to ponder. It’s hard to imagine that the Framers could have imagined Enron, for instance. And I have questions like…what about privacy? Knowing what we know now, would we make such a right explicit? And if so, how do you balance the inevitable clash between privacy and free expression? Do we extend the same kinds of protections we now have against government abuse to cover the even more egregious abuses by private organizations (because right now, the government doesn’t begin to pose the threat to liberty that corporate marketing does)? And so on.

I might come up with a C2 document that’s similar to C1, or I might veer off in novel directions. Hard to say at this point.

But, I would like to take this opportunity to pose a query for our resident Libertarian curmudgeon, nsingman, who routinely provides us with a pretty pure Lib take on issues. I don’t always agree with his opinions, but respect that they’re always highly informed and well articulated, and I appreciate having a perspective on hand that consistently challenges how we think about our social, economic, political and cultural problems.

Here’s how it goes. Noah, you interpret things strictly in light of what C1 says (something that neither Congress, the courts, nor the president do, to be sure – especially not this president). My little poser is actually a string of questions and contingencies that goes something like this:

1: If you were writing a C2 doc for 21st Century America, would it deviate from C1, and if so, how?

2: If not, then does this suggest that C1 was a perfect, timeless document? If so, how is it possible to contrive a bill of governance that does not reflect the context of the world it exists in?

3: Also, it took literally thousands of years for political thinkers to evolve to the point where that document was even possible. How can we explain the idea that we haven’t evolved politically in the 230 or so years since?

4: If you’re not asserting C1 as a timeless document, and believe that there are ways it could be improved upon, then how do you justify strict adherence to what you see as a flawed document?

Thanks for playing. I’m really looking for some justification for thinking some of what I’m thinking. Either that, or better evidence that I shouldn’t be thinking it at all.

And of course, everybody else is invited to play, as well….

:xposted from :

15 comments

  • The single most important thing that I think would need to be addressed would be whether the Supreme Court really is the final interpreter of the Constitution. While John Marshall interpreted it that way, that notion is not articulated anywhere in the Constitution. Should it be? Should it be defined differently than it’s currently practiced?
    Also, I’ve often thought that if the framers knew then what we know now about weapons technology, there would be a radically different 2nd Amendment. That amendment was crafted as a direct response to the government mentality that led to Lexington/Concord (government trying to seize guns from the public). But 230 years ago, the need for guns related very much to practical matters like sustenance hunting and civil defense (the French and Indian War was not so far in the past, don’t forget). Such reasons no longer exist. Plus, today, a gun is a MUCH different beast than it was back then. I can’t help but think those factors wouldn’t lead to a different 2nd Amendment.
    Anyway, my two cents aren’t worth much more than that, but you pose (yet another) great thing to ponder, Sam.

  • The single most important thing that I think would need to be addressed would be whether the Supreme Court really is the final interpreter of the Constitution. While John Marshall interpreted it that way, that notion is not articulated anywhere in the Constitution. Should it be? Should it be defined differently than it’s currently practiced?
    Also, I’ve often thought that if the framers knew then what we know now about weapons technology, there would be a radically different 2nd Amendment. That amendment was crafted as a direct response to the government mentality that led to Lexington/Concord (government trying to seize guns from the public). But 230 years ago, the need for guns related very much to practical matters like sustenance hunting and civil defense (the French and Indian War was not so far in the past, don’t forget). Such reasons no longer exist. Plus, today, a gun is a MUCH different beast than it was back then. I can’t help but think those factors wouldn’t lead to a different 2nd Amendment.
    Anyway, my two cents aren’t worth much more than that, but you pose (yet another) great thing to ponder, Sam.

  • I imagine you’d do better than me. I’ve got more skeletons in my closet than a bad fantasy movie.

  • How would 2A differ if, instead of Lexington/Concord, the most recent event in the Framers’ minds had been, say, Columbine?

  • How would 2A differ if, instead of Lexington/Concord, the most recent event in the Framers’ minds had been, say, Columbine?

  • If they revamp the constitution, which I think is a bad idea, maybe they should work on the Lord’s Prayer and the King James. The Magna Carta should also deserve some scrutiny as it might be outdated. I’m jesting because I don’t want anyone to think I’m trying to start a flame war. I commented on a liberal friend’s journal the other day, and got flamed 49 times. He didn’t flame me at all, but his intolerant friends called me everything from a Nazi to a racist. 49 times is a new record for me.
    Aloha,
    Jeff

  • If they revamp the constitution, which I think is a bad idea, maybe they should work on the Lord’s Prayer and the King James. The Magna Carta should also deserve some scrutiny as it might be outdated. I’m jesting because I don’t want anyone to think I’m trying to start a flame war. I commented on a liberal friend’s journal the other day, and got flamed 49 times. He didn’t flame me at all, but his intolerant friends called me everything from a Nazi to a racist. 49 times is a new record for me.
    Aloha,
    Jeff

  • Heh – well, they actually HAVE revied the KJV. Several times, I think.
    The Lord’s Prayer, though – can’t mess with the classics….

  • Heh – well, they actually HAVE revied the KJV. Several times, I think.
    The Lord’s Prayer, though – can’t mess with the classics….

  • Privacy and free expression don’t have to be at odds – simply remove privacy but leave free expression. You can’t WITHHOLD information, but you can DISCLOSE whatever you want.

  • Privacy and free expression don’t have to be at odds – simply remove privacy but leave free expression. You can’t WITHHOLD information, but you can DISCLOSE whatever you want.

  • Okay, I have time to play.
    This is something I’ve thought about quite a bit, especially now that I am reading a 700-page textbook called “Constitutional Law For a Changing America.” (Apparently, I also need to get out more.)
    The problem I see with the Constitution is that it was written by white men, for white men. Amendments guaranteeing rights for black men and other men of color have been added but nowhere in the constitution does it explicitly state that women have equal rights. We can vote, but that’s about all we are constitutionally-guaranteed. The ERA needs to be added, for sure.
    The Constitution only guarantees rights from infringment from the FEDERAL government, not state and local governments.
    The Constitution is also very vague. This makes it hard to enforce the separation of Church and State. Thomas Jefferson wrote that there needs to be a “wall of separation between Church and State.” Why isn’t this very explicit phrase in the Constitution?
    This vagueness in the Constitution allows for some religious practices to be exempt from the law–such as religious groups using drugs while the rest of the population is criminalized for using drugs.
    Chief Justice Earl Warren once wrote, “…the freedom to act, even where the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.” Of course, this was more in response to religious folks stating they would not pay taxes because it was against their religion.
    Another thing to change is the Twelfth Amendment, which establishes the Electoral College. Nowhere in that Amendment does it state anything about the people’s votes counting toward electing a President and Vice-President. Get rid of that Amendment.
    Finally, there needs to be a clearly-established right to privacy.
    On a random note, I find it interesting that the fourteenth amendment can be interpreted as a reason why abortion should remain legal. “All persons born or naturalized in the United States, etc.” A fetus can’t have rights if it’s not born; therefore, has no right to life over that of the mother, who is already born.

  • Okay, I have time to play.
    This is something I’ve thought about quite a bit, especially now that I am reading a 700-page textbook called “Constitutional Law For a Changing America.” (Apparently, I also need to get out more.)
    The problem I see with the Constitution is that it was written by white men, for white men. Amendments guaranteeing rights for black men and other men of color have been added but nowhere in the constitution does it explicitly state that women have equal rights. We can vote, but that’s about all we are constitutionally-guaranteed. The ERA needs to be added, for sure.
    The Constitution only guarantees rights from infringment from the FEDERAL government, not state and local governments.
    The Constitution is also very vague. This makes it hard to enforce the separation of Church and State. Thomas Jefferson wrote that there needs to be a “wall of separation between Church and State.” Why isn’t this very explicit phrase in the Constitution?
    This vagueness in the Constitution allows for some religious practices to be exempt from the law–such as religious groups using drugs while the rest of the population is criminalized for using drugs.
    Chief Justice Earl Warren once wrote, “…the freedom to act, even where the action is in accord with one’s religious convictions, is not totally free from legislative restrictions.” Of course, this was more in response to religious folks stating they would not pay taxes because it was against their religion.
    Another thing to change is the Twelfth Amendment, which establishes the Electoral College. Nowhere in that Amendment does it state anything about the people’s votes counting toward electing a President and Vice-President. Get rid of that Amendment.
    Finally, there needs to be a clearly-established right to privacy.
    On a random note, I find it interesting that the fourteenth amendment can be interpreted as a reason why abortion should remain legal. “All persons born or naturalized in the United States, etc.” A fetus can’t have rights if it’s not born; therefore, has no right to life over that of the mother, who is already born.

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