The New Constitution: comprehensive statement of principles (draft)
The original plan when we began this project was to offer the amendments individually, invite discussion, then produce a final document. The course of the process, though, has made a couple things clear. First, there needs to be a period to discuss the entire document in context, and second, while the original “Bill of Rights” approach perhaps had a certain formatic elegance about it, the project is better served by a less formalized articulation of general principles.
As a result, what follows is a restructured draft that accounts for the discussions so far and that also adds some new elements that have arisen since the process launched.
We will compile a final statement of principles out of this discussion.
_____
1) Organization, Composition and Conduct of Government
a) Proportional Representation
i) No political party representing a significant minority of the electorate – and here we suggest five percent as a workable baseline – will be denied direct representation in the legislature.
ii) All legislative bodies shall be comprised proportionally according to the populations represented and all elected officials should be selected by direct vote of the people.[1]
b) Public Financing of Elections
i) In order to eliminate the corrupting, anti-democratic influence of corporate and special interest money on the electoral process, all elections shall be publicly financed. No individual will be allowed to contribute more than a token sum to an official, candidate or political party (perhaps the cap could be in line with the current $2,000 limit for contributions to presidential candidates).
ii) All corporate, commercial and other private or publicly held entities shall be forbidden from contributing directly to any official, candidate or political party.
iii) All citizens and collective entities are free to designate a portion of their annual tax contributions to a general election fund.
iv) No contributions to the electoral process shall be allowed by foreign interests, either individual or institutional.
v) Election funds shall be administered on a non-partisan basis and no candidate or party demonstrating a reasonable expectation of electoral viability shall be denied access to funding.
c) Secular Government
i) The government of the people shall be expressly secular. No individual, religious or quasi-religious entity or collective engage or seek to influence the course of legislation or policy in accordance with theological creed.
ii) No government edifice, document, collateral, communication, or other production, including currency, shall make reference to religious concepts, including “god.”
iii) No one shall, in any legal context, including legal processes or oaths of office, swear upon a sacred text.
iv) Oaths of office shall explicitly require officials to refrain from the use of religious language and dogma in the conduct of their duties.
v) No government funds shall be spent to compensate employees who exist to serve religious functions. This includes, but is not limited to, the office of Chaplain in various military bodies.
vi) No religious institution shall be eligible for tax exempt status.
d) Oversight of Covert Activities
No governmental entity shall conduct secret or covert proceedings absent ongoing oversight by a multi-partisan body of popularly elected officials.[2]
e) Federal Autonomy
No state or local government entity shall assert special privilege or exemption with respect to established rights granted by the Federal Constitution.
2) Individual Freedoms
a) Free Speech, Press and Religion
i) No government, corporation, commercial or private entity shall abridge an individual’s legitimate exercise of free speech. This includes all political, social and civic speech activities, including those criticizing the government, corporations and business entities and other collective organizations.[3]
ii) The right of the people peaceably to assemble, especially for purposes of protest, and to petition for a redress of grievances will not be infringed.
iii) The health of the nation depends on a vital independent check against public and commercial power. As such, no government, corporation, commercial or private entity shall be allowed to abridge the rights of a free and unfettered press.
iv) Congress will make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
b) Equal Rights Under the Law
i) No governmental, corporation or commercial interest, or other private organization shall deny to any enfranchised citizen the rights or privileges accorded to others.
ii) The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
c) Freedom from Surveillance
i) All individuals shall enjoy the right to privacy and freedom from systemic surveillance by governmental entities in the absence of a legally obtained warrant articulating probable cause against the individual.
ii) The right of the people to be secure in their persons, homes, papers, data, 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.
iii) All individuals shall enjoy the right to privacy and freedom from systemic surveillance and data gathering by corporate, commercial or other private or public entities unless they have specifically opted into such programs.
d) Basic Human Rights
All citizens shall enjoy the right to shelter, nourishment, healthcare and educational opportunity.
3) Conduct of Business and Commercial Interests
a) Legal Standing
No corporation, business interest or any other collective entity shall be accorded the rights and privileges attending citizenship, which are reserved expressly for individuals.[4]
b) Public Interest Standard
No corporate, commercial or other private or governmental entity shall be licensed, accredited or incorporated absent a binding commitment to serve the public interest.[5]
c) Lobbying Restrictions
i) In order to further the public’s interest in a free and independent legislature, elected officials shall not be allowed petition the body in which they served, either on their own behalf or on behalf of the interests of a third party, for a significant period of time after the conclusion of their terms.[6]
ii) No person shall be allowed to assume a position charged with regulatory oversight of an industry in which they have worked in the past five years.
iii) No elected official shall be allowed to assume a position on any legislative committee charged with oversight or regulation of an industry in which they have worked or held financial interest for the past five years.
d) Collective Bargaining
i) All workers shall have the right to organize for purposes of collective representation and bargaining.
ii) In any publicly held commercial interest where a significant percentage of the workforce is represented by a union, the workers shall be entitled to representation on the corporate board of directors.[7]
4) Citizen Responsibilities and Service
a) Mandatory Service
i) All citizens will, upon attainment of their 18th birthdays, enroll in a two-year program of public service, which may be fulfilled with either civic programs or the armed forces.
ii) Enfranchisement will be earned upon completion of the public service commitment and a demonstration of a basic understanding of principles informing the political and policy issues facing the nation and the world.
b) Right to Arms
i) The right of an individual who has completed a two-year military service commitment to keep and maintain firearms appropriate to the common defense should not be infringed. [8]
ii) The Federal government will establish guidelines by which enfranchised citizens may obtain firearms for reasonable purposes of sport and self-defense.
5) Justice System
a) Due Process and Fair Trials
i) No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against him or herself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
ii) In suits at common law, where the value in controversy shall exceed five hundred dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.
iii) In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of professional, trained adjudicators sanctioned by the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; defendants shall have the right to be confronted with the witnesses against them; to have compulsory process for obtaining witnesses in their favor, and to have the assistance of counsel for their defense.
b) Punishment
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
[1] This disposes of the Electoral College.
[2] An alternative might be to entrust the public court system with the decision. Make all documents automatically become public in N years (and make destruction a federal felony) but the government can petition a federal court to hold them as secret. Court uses a strict scrutiny standard to continue secrecy, advocates for release present arguments and can appeal a secrecy decision (no appeal on orders to release). (Submitted by Evan Robinson.)
[3] This does not prevent said entities from policing explicitly illegal behavior, such as theft of proprietary information or sexual harassment. (Suggested by Carole McNall.)
[4] This item overturns the Citizens United case.
[5] This item eliminates the narrow “interest of the shareholders” doctrine emerging originally from Dodge vs. Ford.
[6] It is suggested by multiple commenters that “a significant period of time after the conclusion of their terms” might best be changed to “forever.” This is a perspective with some merit. In truth, though, we’re discussing a body of people who possess expertise that can, in the right circumstances, be of benefit to the people. A term of five years, for instance, might serve to rid the system of revolving-door corruption without permanently eliminating the possibility that a highly qualified individual may be able to contribute to the public good.
[7] This practice is common in Europe and promotes an environment of collaboration, instead of confrontation, between management and labor.
[8] Weapons systems are constantly evolving and we are now perhaps within a generation of the point where lasers, thermal lances and other currently experimental man-portable devices might be viable. The term “firearms” in this document should not be construed as limited to the sorts of projectile weapons we’re familiar with, but should instead be taken in a broader context. (Suggested by Rho Holden.)
Acknowledgments
The New Constitution has been a long time in the making, and it would be the height of arrogance to suggest that I reached this point on my own. In truth, I’m an intensely social, extroverted and associative thinker, which means that if I have an interesting idea, it probably emerged from interactions with one or more other people. This is why I work so hard to surround myself my folks who are as smart as possible. If they’re brighter than me, as is often the case, that’s all the better because that means there’s more opportunity to learn.
Some of the people in the list below are known to readers of S&R and others aren’t. Some have played a very direct and active role in my political thinking in recent years, and others contributed less obviously in conversations, in grad school classes, in arguments and debates over beers, and so on. In fact, there are undoubtedly some on the list who will be surprised to see their names, but trust me, each and every one of them helped me arrive at the present intellectual moment. This doesn’t necessarily mean they all endorse the project or want their names attached to it, so if there are things that aggravate you, please direct those comments at me and me alone.
All that said, many thanks to:
| Brian AnglissFrank BalsingerDr. Jim BoothDr. Will Bower
Dr. Robert Burr Gavin Chait Dr. Lynn Schofield Clark Dr. Erika Doss Dr. Andrea Frantz John Hanchette Sam Hill Rho Holden Dr. Stuart Hoover Dr. Douglas Kellner Alexi Koltowicz Dr. John Lawrence Dr. Polly McLean Carole McNall Stuart O’Steen Alex Palombo Dr. Michael Pecaut |
Dr. Wendy Worrall RedalEvan RobinsonSara RobinsonKristina Ross
Dr. Willard Rowland Dr. Geoffrey Rubinstein Mike Sheehan Dr. Greg Stene Jeff Tiedrich Dr. Michael Tracey Dr. Robert Trager Dr. Petr Vassiliev Sue Vanstone Angela Venturo Dr. Frank Venturo Pat Venturo Russ Wellen Cat White Dr. Denny Wilkins Lisa Wright |
lullaby pit 
I’ve got a couple of problems with the principles.
First, there really needs to be some definition to clarify the following:
ii) All corporate, commercial and other private or publicly held entities shall be forbidden from contributing directly to any official, candidate or political party.
iii) All citizens and collective entities are free to designate a portion of their annual tax contributions to a general election fund.
What exactly is the tangible difference between “collective entities” and “corporate, commercial and other private or publicly held entities?”
Second, I’m not really thrilled with the idea of FORCED service of any citizens. And to link the basic right to vote on such service is really reprehensible, especially as I wonder how many of the “contributors” here just happen to be well past that age? The whole point of lowering the voting age to 18 in the first place was because young men (women were exempt from the draft) were being asked to risk their very lives yet they had NO say in choosing the officials who were sending them to be cannon fodder. And here is a “statement of principle” that basically says “Until you’ve served this country, you don’t have the right to choose the people leading this country or your state.” The right to vote should NEVER be dependent on such arbitrary rules. I’ve not been thrilled with the idea of withholding a diploma from a student if the student doesn’t participate in in some arbitrary “community service” deal but to make the right to vote dependent on “community service” is, quite frankly, one of the most UN-American ideas that I’ve ever read. And for a bunch of supposed liberal-minded men and women to suggest this is beyond reprehensible.
What exactly is the tangible difference between “collective entities” and “corporate, commercial and other private or publicly held entities?”
Obviously this is intended to address corporations writ large. The language is an attempt to head off those who’d skirt the issue via legal semantics. It’s difficult to anticipate future business incorporation strategies, but it would be foolish not to expect attempts to circumvent the new system.
Second, I’m not really thrilled with the idea of FORCED service of any citizens. And to link the basic right to vote on such service is really reprehensible, especially as I wonder how many of the “contributors” here just happen to be well past that age? The whole point of lowering the voting age to 18 in the first place was because young men (women were exempt from the draft) were being asked to risk their very lives yet they had NO say in choosing the officials who were sending them to be cannon fodder. And here is a “statement of principle” that basically says “Until you’ve served this country, you don’t have the right to choose the people leading this country or your state.” The right to vote should NEVER be dependent on such arbitrary rules. I’ve not been thrilled with the idea of withholding a diploma from a student if the student doesn’t participate in in some arbitrary “community service” deal but to make the right to vote dependent on “community service” is, quite frankly, one of the most UN-American ideas that I’ve ever read. And for a bunch of supposed liberal-minded men and women to suggest this is beyond reprehensible.
The one compelling piece of your argument here is the idea that as constructed, this system would still allow us to send young people off to war while denying them the right to vote. I will revisit this. Maybe the best approach is to grant an exception for active duty soldiers, although that’s troubling – the last thing we need is to further empower an all-too theocratic warrior class. Maybe the better angle is to simply withhold non-enfranchised citizens from active duty? Good question, and one that I hadn’t given enough thought to.
Now, a request. The New Constitution is an informed, good faith attempt to address our system of governance, which is in many respects badly in need of improvement. As noted in the various preambles, I have been noodling on these questions for at least a decade, and the current process has been under way for several weeks.
The approach seeks to correct the direction of US government via a comprehensive, deeply contextualized set of progressive principles that are in some cases at odds with what some have come, over the years, to think of as “American values.” In truth, much of what we have decided to believe is inconsistent with the assumptions on which the Bill of Rights was initially based, and even more of it is inconsistent with the realities of the world in which we now live.
All of which is to say that I don’t expect unanimous agreement among S&R readers, let alone the population at large. But if you look at that list of acknowledgments and track through the comment threads you’ll see a lot of intelligent thinking by very smart people who care about the society and have thought intently about how it might be made better.
For these reasons, your repeated use of “reprehensible” is, at a minimum, not helpful. You might not like an idea, but there isn’t any reprehensible here, so I’d personally appreciate it if you’d dial that back a little.
Many thanks.
Reblogged this on Ars Skeptica.
RE legal entities. Perhaps you can simplify by saying that only citizens are allowed to participate in government. No entity that exists only in law can petition government or contribute to the process of governing or elections. I think that covers everything from the local PTA to the largest multi-national corporation.
I personally would also like to add that no one may petition Congress if the person is being remunerated for the act. Reimbursement for expenses incurred is permissible, but an actual wage or salary for the act of addressing members of congress shall be a violation of law.
And speaking of pay – lets set the pay for the three branches here and now. Members of congress’ pay is set at the average (mean) wage of the district being represented. The president’s pay is the average (mean) wage of the entire nation. The judicial branch’s pay will be the subset of lawyers’ mean pay for the district in question.
Also, I think I have a compromise for the enfranchisement issue. Spread the two years of service out to be completed prior to the 18th birthday. It makes administering it a lot more cumbersome, but, I think it could be rolled into the school year quite nicely. For example, if we denote half of the “summer vacation” as civil service time, then by the time the person graduates high school, they may either be complete or only have a final few months to complete their service time. And for those who opt out, or for whatever reason fail to complete it in the summers, they can opt for military service to satisfy their time.
Obviously, some tinkering is in order to get the math to work, but the basic idea is there. Oh, and an exceptions clause for the mentally/physically disabled might be in order too.
Finally, I would like to thank you for this. I have been advocating a “start over” approach to the disgusting mess that our government has become for a few years now. It is refreshing to see that I am not the only one. It is even more refreshing to see someone put some action behind the words. Kudos to you, sir!