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Nov 19 2012

How Would You Amend the Constitution?

Someone on Facebook recently asked a very interesting question, which was apparently asked at the third party presidential debate: If you could make one amendment to the Constitution, what would it be? Let me offer a couple of different possibilities.

Option one: Replace the 9th Amendment with one that is much more explicit, by enshrining strict scrutiny into the constitution as the sole judicial standard for all enumerated and unenumerated rights. That would mean that the individual is presume to have the right to take any action until and unless the government can show a compelling state interest in preventing them from doing it and that they have adopted the least restrictive means of doing so. This would certainly maximize individual liberty.

Option two: Public financing of campaigns along with specific prohibitions on contributions and the purchase of campaign commercials. I could see this working a number of different ways, but it would probably have to be written fairly broadly. For example, each candidate that gets 5% of the registered voters in the relevant area (district, for state and federal representatives; states, for senators and governors; the whole nation for presidents), they qualify for public financing. All qualified candidates get equal financing and every TV and radio station (those that use public airwaves) within the relevant districts must provide a certain amount of time to the candidates to debate the issues in the few months before a vote.

The fact is that the influence of vast amounts of money in our political system is what is preventing us from solving most of our other problems. It’s what forces legislators to care more about whether a bill or amendment benefits their wealthiest contributors rather than whether it benefits the country as a whole. And until we solve that problem, we’ll continue to have most others.

90 comments

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  1. 1
    theschwa

    I really like your proposed 9th Amendment strict scrutiny idea.

    For me, only individuals/human beings have constitutional rights, not corporations. I.E. corporations are NOT people.

  2. 2
    cottonnero

    Establish either multiple-member districts or single transferable voting.

  3. 3
    baal

    Re-write #4 to make it explicit that you are the owner of your personal information including emails, texts, any writing electronic or written, banking, medical and other business records(including PIN and routing information).

    Add an amendment that enshrines our founders views on corporations. They were highly skeptical of them and saw them as part of the evils of the Monarchy that they disposed.

    I would also abolish the 3rd amendment. It’s been entirely pointless.

  4. 4
    comfychair

    An amendment that explicitly states that voting is a universal, inalienable right of all adult citizens, and makes voting mandatory.

  5. 5
    baal

    hrm, that’s not how you spell despised.

  6. 6
    Randomfactor

    I wouldn’t make voting mandatory, but I DO like the idea of an explicit acknowledgement that it is a human right.

    Also an explicit right to privacy.

  7. 7
    Kevin, Youhao Huo Mao

    Pass the goddamned Equal Rights Amendment, and make it completely comprehensive:

    Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of age, race, gender, gender identity, sexual orientation, religion (or lack thereof,) ability, place of national origin (etc.)

  8. 8
    matty1

    @1 While I am in broad sympathy with this view, precisely what rights do corporations currently have in America that they shouldn’t have? Also how do you restrict the rights of a corporation, which is not a person, without restricting the rights of it’s owners, who are to use their corporation for their purposes?

  9. 9
    Trebuchet

    Alter the terms of the President and Senate, and the method of electing the president. Senators would serve four year terms, limited to 5 terms. Presidents would serve a single six-year term with no possibility of re-election. Retain the electoral vote system, but without human electors. Electoral votes are one per congressional district plus one (not two) at large for the state as a whole.

  10. 10
    leftwingfox

    An overhaul of the electoral system with publicly funded elections, a multi-party capable voting system, eliminating the electoral college, and standardizing state voting systems would be top on my list.

    Enshrining the right of the government to regulate commerce and protect the environment would be a close second.

    Repealing the second amendment would also be on my wish list. While I am not opposed necessarily to responsible gun ownership, I think the second amendment is:

    a) antiquated in the role of civilian militias, which are no longer a part of the US military system.
    b) unnecessary for the survival of democracy, as has been shown by many democratic nations with low rates of gun ownership, and dictatorships with high levels of gun ownership.
    c) actively corrosive to democracy, in both the implication that violence against the state is a legitimate process as opposed to last resort, as well as the dangers of a well-armed vigilante populace working on behalf of a corrupt state.
    d) resistant to rational reform, resulting in a lot of anti-government paranoia when efforts to limit the most dangerous weapons of mass-murder.

  11. 11
    gridlore

    I’d rewrite the 2nd Amendment to explicitly link gun ownership with being part of the state militia. This means that any gun owner would have to register with the state, show up once a year to show competence with their weapon, and be subject to call up in times of desperate emergency and subject to orders.

    This was the intent of the founders, that there the no impediment on the ability of free men to be able to defend their community and nation. Let’s bend it back to that standard.

    Note that the “desperate emergency” means things like Superstorm Sandy, the eventual Big One here in California, or massive civil disturbances. I would word the revised Amendment to specifically exclude state militia members from federal service.

  12. 12
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    I would create an amendment as complex as the 14th, but dealing with the electoral process. It would create a system of proportional representation in a parliamentary body that then sends on to the senate its most experienced members from any given regional electoral division (perhaps about 15 parliamentary members would be elected from each region, only 12 would serve in the house, the 3 most experienced would be sent to the senate, something like this).

    The amendment would then spell out public financing that can only be spent during a limited election season and granting congress the power to enact statutes ensuring that during that limited election season that ensure that outside moneys do not compete for influence upon the election with the public financing. This might allow any reasonable statutory framework that, upon implementation, permits some advertising, but not advertising that in aggregate “competes” substantially for the attention of voters. As an example, such a law might disallow private expeditures to exceed 20% of what the public financing scheme spends. But as the specific limit would be statutory, it could be changed – being wildly complicated and specific or very simple – so long as it did not as a whole violate the limits of the amendment.

  13. 13
    Gretchen

    I would create an amendment regarding bodily autonomy which makes the right to privacy explicit. This amendment would affirm that the human body is the most basic of property over which the individual’s right should be unquestioned before any other kind of property. This includes the right to manipulate and even damage one’s own body in whatever ways one sees fit, including a) to consume illicit drugs and unhealthy foods, b) to engage in consensual sexual activity with fellow adults regardless of how much of a violation they may appear to others, c) to perform or have performed bodily alterations ranging from tattoos to abortions to amputations if one so chooses, and d) to end one’s own life regardless of the circumstances. This last element is important particularly because it would provide for prisoners who consider their own imprisonment to be torturous to have a way out.

  14. 14
    Gretchen

    Oh, and none of the third party candidates had an interesting or compelling answer to this question in their debate. That was both disappointing and surprising, given that they could really have gone balls to the wall if they wanted to.

  15. 15
    DaveL

    gridlore,

    Technically, all male citizens between the ages of 17 and 45 are members of the militia of the United States.

    10 USC, Section 311:

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are –
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

  16. 16
    bcreason

    Have a non partisan organisation that oversees elections and enforces standards. Here in Canada we have Elections Canada that manages elections and investigates fraud and provides the voting equipment. Partisan scrutineers then keep an eye on Elections Canada for funny business.

  17. 17
    eric

    Some more ideas. All guaranteed to be imperfect. ;)

    1. Corporations are not citizens and have no right to donate to compaigns, etc. [Agree with Baal on this one]

    2. Campaign support and separate issue ads cannot be anonymous; front companies for such things banned. [Unlike Ed, I would probably not restrict spending, but I do think the source of any advertising should be transparent.]

    3. No Congresscritter or President can stand for reelection if, during the last two years, more than 50,000 US troops have been deployed overseas. [The idea being: if the cause is not worth your job, its probably not worth a soldier's life. The goal here is to make war more costly to those who order it, but not so costly or institutionally difficult that we can't respond to threats.]

  18. 18
    tacotaco

    Freedom to roam

  19. 19
    cptdoom

    Statehood for DC – or as least some scheme to ensure our population here in the city has representation in Congress and eliminates Congressional oversight of strictly local laws. If oversight were retained, I would require all members of the DC committees in Congress to either be a representive for a border jurisdiction to the city or have a second home here, rather than in the suburbs.

    There would be significant problems with DC being a state, because it is so small and already struggles with providing both municipal and “state” services, so the real solution would be to take the surrounding counties and create a state out of the entire metropolitan area. That will never happen, of course, because there is no way that Maryland or Virginia are going to give up their richest counties (Fairfax county in Virginia and Montgomery county in MD routinely sit at the top of the richest counties nationwide).

    One alternative I did hear discussed on a local talk show would be to leave DC as is, but make our non-voting Delegate to Congress a full voting member of the House and allow DC to vote for MD Senators.

  20. 20
    sundoga

    I’d make the 2nd simpler. “The right of individual adult citizens to keep and bear Arms shall not be infringed.”

  21. 21
    D. C. Sessions

    Kill the gerrymander by adopting, statewide, one of the methods such as preference polling.

    Or, of course, getting rid of the Electoral College. The two could be combined by adopting preference polling for all national offices.

  22. 22
    Rob F

    If I could unilaterally amend the US constitution, there are many things I’d like to do, but one of the first would be to pass the ERA and prevent certain barbaric/theocrat types from using religion to oppress women and girls; perhaps with this wording:

    Sec. 1) Notwithstanding and overruling everything else in this constitution, all rights and privileges apply equally to male and female persons.

    Sec. 2) This applies to the federal government, the states, and all and other levels of government.

    Sec. 3) No individual, institution, person, or other entity shall be allowed to use any right, including religion, to oppress or otherwise harm girls, women, or anyone else on the basis of sex or gender. No level of government shall give any tax exemption, subsidy, or other benefit to anyone or anything that violates this section.

    Sec. 4) This amendment shall never be repealed. It shall supersede any subsequent amendment to this constitution or any future constitution.

  23. 23
    Rob F

    Lower priority ones amendments include but not limited to (in no particular order):

    *Banning gerrymandering and other partisan control of the election process.
    *Stronger protection for unenumerated rights.
    *Making all rights in the constitution, whether explicitly listed or not, also be protected against violation by states and local levels of government.
    *Banning riders and allowing a line-item veto.
    *Overrule the insular cases, and grant voting representation to DC and other territories.
    *Public financing of elections, eliminating all other election spending.
    *Right to privacy and bodily autonomy.

  24. 24
    F [i'm not here, i'm gone]

    matty1

    Restrict the existence of corporations entirely. They are inherently bad actors.

    How does some restriction of any sort restrict the rights of owners (you’d mean “shareholders” here)? It certainly wouldn’t restrict any Constitutional rights, so I don’t know what you mean.

    ——-

    At first glance, I like most of the amendments (or amendments/clarifications to amendments) here. Anything I’ve thought of has already been posted. Randomfactor had the first one on my list, so I kept reading, and then stopped trying to think of another.

  25. 25
    richardelguru

    Public financing is good, couple it with the absolute outlawing of lobbying for money.

  26. 26
    acroyear

    Forbid the election of judges at ANY level of the court structure, federal or local.

    Set a forced limit on the amount of time the Senate can take to vote on any Executive appointment including the judiciary (clarifying the phrase “advice and consent of the Senate”). If the Senate does not take up the vote within the proscribed time (with a buffer to account for recess), the appointment passes by default.

  27. 27
    holytape

    Change house elections to every four years.
    Change senate so that all half of the senate is elected every three years.
    Create a standard that all states must meet in how the handle elections. (polling places per population, polling machines per place, format of ballots, ect…)

  28. 28
    greenspine

    Impose a permanent and exclusive government monopoly on military and police action. Get rid of the mercenary corporations and for-profit prisons.

  29. 29
    Nepenthe

    I’m with Katherine. Pass the fucking ERA already.

  30. 30
    fifthdentist

    My amendment would be entitled: “Texas can secede any fucking time they’re ready as long as they pay for the sane people to move and compensate said emigrants for the value of any property they own in Texas at time of departure, and they have to take Mississippi, Alabama, Oklahoma and Louisiana with them, and, most importantly, they must return to the United States any and all military equipment and weapons.”

  31. 31
    Michael Heath

    Our federal government is currently using a largely-19th century framework to administrate their duties. This framework allows them to avoid dealing with inconvenient results and facts, rather than working in the national interest. So an amendment that would obligate the government’s senior officials, including the President, judicial and congressional leaders, to periodically report metrics, parse out root causes for the results, and plans to improve future results.

    The motivation here is to force officials to confront our results, report root causes, and plans on how to react to these results, both mitigation efforts and process optimization. Essentially, they’d be implementing a continuous improvement approach. The military has already started implementing this management approach, where it’s clear most of Congress has no idea how to even think in a manner which would create systemic improvement. Neither did Mitt Romney either, his approach to business was obviously old-school and project-based, having nothing to do with running an on-going concern.

    That same amendment would create an appointed non-partisan technocratic committee which also scores results, scores the reaction to those results, and scores actions proposed and passed by all three branches. I would also propose Congress would be required to publish documentation on why they’re presenting bills to the president on aspects which scored poorly by the technocratic committee results. Now they’re able to avoid inconvenient facts altogether.

  32. 32
    Coises

    At all levels of government (not just Federal):

    Require that instructions to a jury in criminal trials include the right and duty of jurors to acquit if their conscience dictates that the law is unjust, and require applicable sentencing guidelines to be read as a part of the applicable law;

    disallow retrial under the “dual jurisdiction” theory as a form of double jeopardy;

    reinstate the common-law “mens rea” (criminal intent) requirement as a necessary component of any criminal law (making criminal strict liability unconstitutional, with existing strict liability statutes still having force where a minimum of criminal negligence is shown at trial);

    abolish mandatory minimums;

    abolish absolute prosecutorial immunity;

    abolish civil forfeiture;

    abolish private detention facilities, and provide for the orderly nationalization or dissolution of existing private prisons with fair compensation to their current owners/investors;

    ban the use of inherently violence-prone techniques which may endanger persons or property (such as SWAT teams) for the service of warrants under circumstances where violence is not already present, except upon finding of the judge signing the warrant both that service of the warrant is necessary to protect the community from immanent danger, and that reasonably safe and effective service is unlikely to be possible without such a technique, which must be specified in the warrant.

  33. 33
    sylwyn

    There are a whole host of worthy modifications that could be made.

    The first thing (perhaps not as worthy as some of the other things already suggested) that popped into my head was to get rid of the electoral college.

    The second, related to the first, would be to tweak the elections so that a person could vote for more than one presidential candidate. This would eliminate the issue of third party candidates improving the chances of the candidate more diametrically opposed to their philosophy (i.e. Ralph Nader wouldn’t improve the chances of Karl Rove winning the 2016 election). It would also allow for the “anyone but fill-in-the-blank vote.”

  34. 34
    D. C. Sessions

    Feedback, Mr. Heath, feedback.

    Each Act of Congress to specify, in concrete metrics, its objectives. If, within a Constitutionally-mandated time, the stated objectives are not met then the law may be stricken in toto.

    Note that this has the interesting side effect of making “Christmas tree” bills (the “Omnibus _________” variety) extremely vulnerable and legislatively undesirable.

  35. 35
    Chiroptera

    I, myself, would support a Constitutional Amendment so that any time a public figure like the Legitimate Rape Guy or the Where’s Obama’s Birth Certificate people say something incredibly stupid, the Chief Justice of the US Supreme Court has to kick them in the butt on national TV.

  36. 36
    Gregory in Seattle

    “1. The rights, protections and priviledges guaranteed by this Constitution shall apply to all persons subject to the laws of the United States. 2. ‘Person’ shall not be construed under this Constitution or the laws derived from it to many any entity other than a post-natal human being.”

  37. 37
    eric

    2. ‘Person’ shall not be construed under this Constitution or the laws derived from it to many any entity other than a post-natal human being.”

    I agree with the sentiment, but being a sci-fi fan I was trying to think of a way to include (future) other sentient species and AI as potential persons, yet still exclude corporations. I went with just explicitly excluding corporations because I couldn’t think of a more elegant way to parse it.

  38. 38
    theguy

    There are so many possibilities, I can’t suggest just one.

    I would suggest:

    An amendment outlawing the death penalty.

    An amendment specifying a right to vote.

    An amendment allowing naturalized citizens to run for President.

    An amendment legalizing gay marriage for all levels of government.

    An amendment clarifying that Congress may spend money on health care and poverty reduction.

    I’m not sure about this next one any more, but when I was in high school we had an assignment where we had to propose an amendment. My proposed amendment was something like, “Any person nominated for the Supreme Court must be at least [life expectancy plus five years] old.”

    This was my attempt at Supreme Court term limits without actual term limits.

  39. 39
    naturalcynic

    @9 Trebuchet:

    Retain the electoral vote system, but without human electors. Electoral votes are one per congressional district plus one (not two) at large for the state as a whole.

    A slightly better idea than the present situation, but not good enough. In the recent election, Romney might have won while losing the poplar vote by the substantial margin that he did get. The House still has a Republican majority in spite of the majority of votes for House members going to Democrats. If 250 districts end up with Republican majorities of averaging 10,000 votes and 185 Democratic districts with majorities of 25,000… There would have to be fair balancing of districts- good luck with that.

  40. 40
    matty1

    @24

    How does some restriction of any sort restrict the rights of owners (you’d mean “shareholders” here)? It certainly wouldn’t restrict any Constitutional rights, so I don’t know what you mean.

    Yes the owners of a corporation are shareholders, although what I’m thinking of specifically is whatever equivalent you have to a limited liability company, which is a broader category than corporations traded on a stock exchange. I know several people who have one person businesses that are ‘incorporated’ in this sense.

    Onto the meat of this with an example.

    Suppose a local school has a hall available to rent on a first come first served basis.

    You’d agree that any person has the right to rent that hall.

    Do they loose that right if six people want to combine their money and rent the hall together?

    What if those six people are weird about money so they form a corporation with themselves as shareholders to legally hold the rent money until it can be paid over. Should that corporation be allowed to rent the hall? If not how is a restriction on the corporation not a restriction on the ability of the six shareholders to rent it?

    Put another way, precisely because corporations are not people they do not have minds, only humans have minds (OK some other animals) and only minds can make decisions. It follows then that every action of a corporation is a result of a decision by at least one human. Prevent the corporation acting and you prevent the human(s) acting through it and if those actions were ones they had a right to take you have restricted their rights.

    There are ways round this, especially with larger corporations. I’m a big fan of the idea that executives should not be allowed to spend shareholders money on anything outside the core business without express permission but there are real issues here.

    I’ll leave you with a question, if a corporation is not a person (and I agree it isn’t), what is it?

  41. 41
    Andrew G.

    Also how do you restrict the rights of a corporation, which is not a person, without restricting the rights of it’s owners, who are to use their corporation for their purposes?

    You do it like this:

    Firstly, you define Constitutional rights as being rights of natural persons only. (This doesn’t mean that non-natural legal persons don’t have rights, it means they have only the rights granted by the legislative authority under which they exist, and the Constitutional rights of natural persons must always take precedence over these.)

    Secondly, you make explicit that the right of natural persons to free association means that an organization of natural persons, whether or not it is a legal person, can exercise the public participation rights (free speech, free association, petition) of its members but only to the extent that it is acting explicitly on their behalf. For example, a nonprofit created to advocate for a specific issue can be presumed to be acting on behalf of all members (since they wouldn’t have joined it otherwise); whereas a for-profit company can’t be assumed, short of a unanimous resolution of shareholders, to be acting on their behalf for this purpose.

    Thirdly, you explicitly specify that the rights of natural persons must be protected from indirect as well as direct restrictions. For example, a commercial publishing firm isn’t a natural person, but a law preventing such firms from publishing particular material would still fail because it would impact on individual free speech.

  42. 42
    corkscrew

    Speaking as a non-US citizen, it would be really good if the Constitution made clear the rights of non-citizens to petition the government for redress. For example the poor sods who get extraordinarily rendered or blown up by drones or…

  43. 43
    matty1

    @41 Great, exactly the kind of thing I was looking for. I endorse your solution completely.

  44. 44
    Andrew G.

    It follows then that every action of a corporation is a result of a decision by at least one human. Prevent the corporation acting and you prevent the human(s) acting through it and if those actions were ones they had a right to take you have restricted their rights.

    It is generally the case that individuals can’t use the resources of a corporation for their own individual ends; all actions of individuals taken as part of a corporate role must be to the benefit of the corporation and its purposes rather than the individual.

    So we already make the distinction between individual-acting-for-themselves and individual-acting-for-a-corporation, and restrictions on the latter don’t constitute restrictions on the former. Only in the case of a sole trader would this distinction vanish; even in the case of a single-person LLC, the manager may lose the protection of limited liability as a result of being careless about keeping corporate and individual actions separate.

  45. 45
    sanford

    I was listening to Thom Hartman last week. I think he had 3 he wanted. Like Rick Perry I don’t remember the 3rd. But Thom wanted amendments that corporations were not people and that money does not equal speech.

  46. 46
    eric

    Suppose a local school has a hall available to rent on a first come first served basis.

    You’d agree that any person has the right to rent that hall.

    Do they loose that right if six people want to combine their money and rent the hall together?

    The focus of all the posts so far seem to be on preventing corporate funding from (overly) influencing elections, not preventing them from doing other things like renting rooms. There is, IOW, one part of one type of activity (political speech) that we wish to regulate. Granted, ‘political speech’ is about the most protected concept in US law there is. But still, it should be possible to fashion some sort of rule which prevents this one type of activity but not others.

    How about a progressive tax on political advertising, the proceeds going into a public campgain finance fund? I.e., the first $1,000 spent on political advertising incurs no extra tax. 10% of $1,001-$10,000 goes into the pot. 30% of $10,001-$100,000 goes into the pot. 50% of $100,001+ goes into the pot. Such a system might require some sort of constitutional amendment to make it taxable in the first place, and to make such funding transparent. But the details could be left to ‘regular’ law and such a system would not require we create any distinction between corporations and individuals.

    Citizens’ right to speak publicly is preserved; we just tax the bullhorns based on size.

  47. 47
    caseloweraz

    There are many fine suggestions here. Some of them aim to limit the rights of corporations, or to clearly distinguish them from natural persons. That last would be my first choice. I would accomplish it by adding one word to Section I of the 14th Amendment (in two places), making it read as follows:

    Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any natural person of life, liberty, or property, without due process of law; nor deny to any natural person within its jurisdiction the equal protection of the laws.

    http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

    This should at one stroke nullify the Citizens United decision (as well as Santa Clara County v. Southern Pacific Railroad Company, an 1886 decision described by Douglas Rushkoff in his book Life, Inc.)

  48. 48
    matty1

    I’ll be honest that I’m uncomfortable with restricting political speech whatever the source. I just don’t trust the people who would be writing such rules enough not to slip in an “also no saying stuff I disagree with” clause but yes if you can get money out of politics without running into those risks go to it.

  49. 49
    Olav

    I am not sure that amending the US constitution is enough to make it adapt to the 21st centruy. It seems to me that it should be completely rewritten (and the political system redesigned).

  50. 50
    Chiroptera

    Olav, #49:

    You mean, like the Founding Fathers intended?

  51. 51
    heddle

    I would repeal the 22nd amendment. And the natural born citizen requirement for the presidency and vice-presidency.

  52. 52
    vmanis1

    On the subject of equal protection, let me advocate the wording of the Canadian Charter of Rights and Freedoms.

    15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

    (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

    The original wording said `equal benefit of the law without discrimination based on’. During the comment phase, there were many briefs submitted on the Charter, several saying `you have to add sexual orientation’. In their wisdom, the government chose not to do that, but to do something far better: the current wording is open, but the list of forbidden grounds serves as a guide to the courts on what a forbidden ground looks like.

    It took a few years, but when cases came to the Supreme Court of Canada, the justices felt bound to `read in’ sexual orientation, not as some kind of strange creation of new law (as U.S. originalists would put it) but rather as a straightforward consequence of (a) anti-LGB discrimination is discrimination, and (b) being LGB is similar to at least one ground in the list. Notice that I said `LGB’; we’re still working on the T part of that list. No country is perfect.

    BTW, I often feel a smug glow of satisfaction that, as the principal author of one of those briefs, my name is included in the supporting documentation for Canada’s constitution.

  53. 53
    comfychair

    Make voting both mandatory and universal and you solve a whole huge pile of problems at a stroke, and the only argument against it I can think of is “some people don’t want to vote, so they won’t and will accept whatever trivial symbolic penalty not voting carries.” To that I say, tough shit.

    Make voting mandatory and you no longer waste huge piles of money on ‘get out the vote’ efforts, and voter suppression instantly becomes a non-issue.

    Make voting mandatory and you make it much more difficult to skew the outcome with dodgy voting machines or similar ratfucking tactics. With low enough turnout some races can be flipped with a fairly small number votes; if you triple or quadruple the number of participating voters, the amount of votes you need to steal goes way up, making such ratfuckery easier to detect.

    Make voting mandatory and you solve one of the biggest causes of a disinterested electorate, which is those folks who stay home because they think other like-minded people are staying home too, so it’s all pointless anyway and therefore their vote won’t count. Low participation creates low participation.

    I know it’s often said that higher turnout benefits Democrats, but I would much rather see a government that is truly representative of ALL of us, no matter which political ‘team’ gets the majority. Of course, the God Squad would never allow it, ’cause an unrepresentative electorate is currently the last piece of life support equipment keeping them alive.

  54. 54
    Gretchen

    If voting were mandatory, but not voting entailed only a trivial symbolic penalty, are you sure it would really make that much of a difference?

  55. 55
    Subtract Hominem, a product of Nauseam

    Lots of good answers here. Indeed, many I would have proposed have already been raised. Instead, I’ll throw out a few more trivial ones.

    · Alter the “twenty dollars” in the seventh amendment to keep up with inflation.
    · Term limits for SCOTUS judges: maybe something like 13 years with an option to renew once?
    · Tie the pay of Congressfolks, POTUS, Veep, Cabinet, SCOTUS, and a few other high-ranking government officials to the previous year’s median income. Maybe a few different tiers, but none in excess of 110% of that amount.
    · An official procedure for secession. Maybe 60% of the state voting in favor, plus simple majorities in 2/3 of other states agreeing (within a 2-year time limit)?

  56. 56
    Jen

    I would definitely tighten up the 14th amendment to make sure that corporations could not be considered persons, while still allowing later inclusion of aliens or robots. As it is right now, AI will automatically be included as persons if corporations are. I would also like one that says that money is property only, and does NOT equal speech. That gives the rich much more power and unbalances the whole process.

  57. 57
    Andrew G.

    Subtract Hominem @55: regarding the seventh amendment, there’s a more important fix needed there, but I don’t know how to word it. The loophole that needs closing is this (which is taken from a real case, which I’m not at liberty to identify):

    Fred sues Jim on some largely bogus grounds, claiming millions in damages plus an injunction against Jim. Jim demands a jury. During discovery, Fred maintains the claim for damages, making sure to keep referring to it, even though there is no actual documentation to support it. Just before the trial, Fred drops the damages claim, saying only that they want the injunction “plus whatever other remedy the court considers just”. The removal of the damages claim turns it into an equity case, in which there is no right to a jury, so Fred moves to strike Jim’s jury demand and the court grants that. Then, at trial without jury, the judge awards the injunction and damages in an amount comparable to Fred’s initial claim.

  58. 58
    comfychair

    Gretchen @ #54:

    I think threatening to string them up from the nearest light pole would be counterproductive, so of course any penalties would be light to nonexistent. I mean, participation in the Census is legally mandatory, and while there will always be some who refuse their numbers are trivial compared to the numbers who stay home on election day.

    People are disinterested because large numbers of people don’t vote. The problem is causing itself.

  59. 59
    dingojack

    Gretchen (#54) – yes.

    How about, for a start:

    > Going to vote is to be compulsory for all citizens over the age of 18.

    > Elections to be run by a Federal Government Department. (Registering eligible voters/ voting machines/ public campaign funding/ scrutineers/ polling-place employees/ vote-counters & etc.)

    > Instant Run-off Voting with proportional representation for House and Senate.

    > Vote for whomever you like (no need to register which party you’re going to vote for beforehand).

    (Just my $0.02 worth)
    Dingo

  60. 60
    Coises

    “Make voting mandatory”:
    I’ve never understood the point of this. It’s the quality, not the quantity, of the electorate that sucks. How will adding to the mix the opinions of voters who wouldn’t even bother to vote at all if we weren’t forcing them lead to better decisions?

  61. 61
    eric

    Gretchen:

    If voting were mandatory, but not voting entailed only a trivial symbolic penalty, are you sure it would really make that much of a difference?

    It would make a huge difference even without a penalty, because people will generally do the default. Consider that huge political and legal fights about the status of unions (and other things) have been fought over whether they should be opt-in or opt-out. Why? Because it does in fact make a difference. If we were perfectly rational actors, it wouldn’t…but we aren’t.

    Republicans would probably be big losers from such a law. They have smaller constituencies which currently vote in higher per capita numbers. So the have a lot less room to add voters. (Just for example, something like 75% of prosperous older white people vote, but only something like 20% of hispanics vote. If all groups suddenly vote in 80% numbers, guess who loses?)

    Coises:

    “Make voting mandatory”:
    I’ve never understood the point of this. It’s the quality, not the quantity, of the electorate that sucks.

    If forced to vote, I think a lot of people would make some minimal effort to learn about the issues. But not most of them. So we would see more coin flip votes AND more educated votes. I think the end result would be elections that were closer in terms of percentages, but further apart in absolute numbers. To use a toy example, instead of 100 voters splitting 55 vs 45, you’d have 200 voters splitting 108 to 92.

    On the original topic; I’m going to add my support to a constitutional amendment to take control of elections away from elected politicians and the parties.

  62. 62
    lordshipmayhem

    Rewrite the 2nd amendment so that it is clear that the arms involved are single-shot, muzzle-loading black powder smoothbore firearms, and not semi- or fully-automatic rifles.

  63. 63
    dingojack

    It minimises pandering to small, high turn-out groups.
    Do you really want your country run by the 50 loons who live in the cult next door who always vote, or the majority of the people who almost never vote?
    Dingo
    —–
    And aids cohesiveness in divided, balkanised or tribal areas (such as the US, for example). ;)

  64. 64
    Suido

    The chief problem I see with compulsory voting as practiced here in Australia (essentially a two party system) is that the parties are stuck fighting for the swing voters on whatever hot button issues poll as important to the swing voters eg asylum seekers arriving by boat.

    In a compulsory voting system, if you’re to the left or right of a genuine swing voting centrist, your vote is locked in for one of the two parties. Good luck convincing the politicians and their strategists to listen to you then.

  65. 65
    dingojack

    Suido – DLP, Greens, Democrats (various independents and minor parties) … any of those ringing a bell?

    Proportional voting tend to increase the possibility of a third party candidate, plurality voting (First-past-the-post, majoritarian and so on) tend to decrease it.

    as to pandering, how would having non-compulsory voting be an improvement, exactly?

    Dingo

  66. 66
    martinc

    Proposed amendment to the constitution: Any State Governor intending to sign the death penalty for a convicted felon must deposit a one million dollar surety from their own money into a holding fund (cash or mortgage on property), which will be returned (with appropriate interest) ten years after the execution. If evidence in that 10 year period arises establishing the felon as not guilty, the million dollars is forfeited to the heirs and assigns of the felon.

    If a Governor is so uncertain of the conviction that he is not willing to risk the million, then the death penalty is unsound anyway. Even if the Governor feels the conviction is sure and certain, if the Governor does not feel strongly enough about the execution to be willing to tie his own money up for ten years, then he shouldn’t sign anyway. No-one should be able to condemn someone to death unless they are certain of their guilt, and feel strongly that the execution is necessary.

    I was going to write some kind of rider about what happens if the Governor doesn’t have a million dollars, but in the political arena of today I suspect it would be redundant.

  67. 67
    martinc

    Coises at 60:

    Mandatory voting in Australia makes political advertising less shrill. Freed from the necessity to ‘get out the vote’, politicians can concentrate on establishing that they are a better choice than their opponent, rather than ‘the world will collapse into a black hole if you fail to vote for me’.

  68. 68
    jayarrrr

    I would amend the Constitution to prohibit any descendant of Prescott Bush from holding public office.
    This country has suffered enough.

  69. 69
    dingojack

    jayarrr – too bad about that whole US Constitution Art III, Cl 2 thing. :)
    Dingo

  70. 70
    democommie

    “I’d make the 2nd simpler. “The right of individual adult citizens to keep and bear Arms shall not be infringed.””

    Of course you would, as would all of the rest of the gunzloonz*.

    I’d make it simpler, too. Wanna strap-on, turn out for drill and submit to authority–and definitly NOT be exempt from federal service.

    * The only people I know who support that view are gunzloonz or uninformed. There is considerable overlap of those sub-sets of firearms owners.

  71. 71
    dingojack

    Demo – for some bizarre reason when you said:
    I’d make it simpler, too. Wanna strap-on, turn out for drill and submit to authority…”
    I immediately thought of Leeds Leather Lovelies* with their 9″ black leather stilettos & matching strap-on dildos.
    A highly entertaining drill, but one I’d recommend watching from a safe distance, they take it very seriously. ‘Drill, baby, drill’! :D
    Dingo
    —–
    * deliciously, deliciously deranged

  72. 72
    Michael Heath

    comfychair writes:

    Make voting mandatory and you no longer waste huge piles of money on ‘get out the vote’ efforts, and voter suppression instantly becomes a non-issue.

    Voter suppression efforts by Republicans would continue and perhaps continue to increase as the GOP increasingly loses on demographics. Two of the primary false premises the GOP uses to justify its suppression efforts is that Democrats attempt to vote more than once and illegal immigrants are voting. Neither of which are relevant to a mandatory voter amendment.

    Also, any mandatory voter law that continues to allow the states to prohibit certain felons from voting would also continue to serve as a premise by the GOP to suppress people from voting; though in a weaker form.

    This premise was a major aspect of Florida’s Republicans stopping some Floridians from voting over the last several electoral seasons. Florida’s Republican-controlled state government extended their illegal suppression efforts to felons who had re-gained their legally protected right to vote. An amendment would help protect those ex-felons’ right to vote though such suppression efforts would most likely continue to enjoy some success precisely because Florida’s approach with ex-felons was an intimidation tactic (sending out state police to canvas door-to-door).

  73. 73
    Dr X

    Including prisoners, the right to vote for those who have been convicted of crimes.

    Public defenders office and prosecutors office in any jurisdiction must be funded equally.

    All Republicans members of congress and Catholic bishops must submit to completely gratuitous, annual anal probe conducted by unsupervised, single, female volunteers.

  74. 74
    comfychair

    Michael Heath @ #72:

    Ayup, and that’s why my original proposal up at #4 was:

    An amendment that explicitly states that voting is a universal, inalienable right of all adult citizens, and makes voting mandatory.

    No more disenfranchisement. If you’re over 18 and breathing, you vote. (whether the qualifications are extended only to citizens, or including legal resident non-citizens, is something I’m sure could be worked out)

  75. 75
    Worldtraveller

    I’m going to borrow from what others have already done, and add my own ideas.

    1) Pass the ERA.
    2) Eliminate gerrymandering and replace district control with a FEM style meshing algorithm. We already have the tech, and do it with much more complicated things than the US states.
    3) Overhaul the voting to be consistent on a national level. We are long past the point where we need state by state controls over something that’s largely done at a national level anyway.
    3a) All elections will be done with a runoff/preference voting system, eliminating primaries altogether.
    3b) At the federal level, the VP, one senator from each state, and half the state reps would be selected by a draft system. (States would not be required to adopt this for local/state level elections.) (obviously, this would eliminate the EC.)
    3c) All terms will stay the same, but every office will have a term limit of 12 years. (Each state can determine their own term limits for local offices).
    4) Enable a issue based electoral vote that would essentially give the voting public veto power of any national legislation that has been enacted for a minimum period of time. (So the public has time to see how/if it is as effective as claimed, and a non-partisan evaluation a la M. Heath’s post 31 has been done). This would hopefully reduce/eliminate ‘riders’ on completely unrelated legislation from otherwise remaining in effect when they are bad legislation, and only passed because they were attached to a popular bill.
    5) Make Jury nullification explicit. (and pretty much everything Coises says in 32.)

    I like Mr. Heath’s ideas at 31, but it would be hard to implement (I think it’s worth attempting, though).

    I see D.C Sessions has more or less covered #4, although I would allow line by line evaluation, or require laws be borken down into each objective instead of the onmibus type bills we get now.

    Then we add the 9th and 10th amendments about 12 more times, until congress, the courts, and everyone one else, gets the fucking point.

    Every law should have to pass a strict scrutiny test before it becomes law, with a very close reading of the 9th and 10th amendments (as well as the 14th). If the law can’t be shown to have a very good reason to restrict any rights, it is moot right out the gate. It would also have to meet metrics, as suggested by others, and undergo at least one additional review.

    Write electioneering laws to be in line with how Great Britain does it. Three weeks, limited advertising, and that’s it.

    Tie the pay of Congressfolks, POTUS, Veep, Cabinet, SCOTUS, and a few other high-ranking government officials to the previous year’s median income. Maybe a few different tiers, but none in excess of 110% of that amount.

    Damn, I really like this idea. And it’s one I’d had in the past and forgot to mention. Also tie minimum wage into the formula so that it increases the same rate as inflation, at the least.

    Although there are issues with it, combined with what I think are good ideas I outlined above, I don’t have a problem with making voting compulsory. There should, at least, be a ‘None of the above’ option for all offices for those who wish to symbolically abstain.

  76. 76
    sundoga

    70 – I am a bit of as gun nut (as in, I like guns, I like firing them, and learning about them – I don’t actually own any, as I live in Australia, where we have no rights). But the main reason I support the 2nd is that I think giving the government – any government – a monopoly on the tools of violence is a very stupid thing to do.

  77. 77
    dontpanic

    While in practice I like the idea of term limits, I think it’s possible that 12 years is too short. The problem with limits is that it gives lobbyists too much power as they “guide” the newly inducted into the system. Lobbyists definitely don’t have a 12 year limit.

    sundoga, that’s right. Why should the government have a monopoly on nuclear weapons? Or artillery, or drones? You’ll note that the 2nd talks about “arms”, not “guns”. Actually, did you have a argument against the aforementioned modifications to 2nd? Those emphasize the “well regulated Militia” part that currently exists without really an otherwise undue burden.

    Glad to hear from Dr. X (haven’t noticed him much recently in the comments) with his usual, eminently sensible suggestions.

  78. 78
    sundoga

    Well, I’m not going to address fear mongering “thin edge of the wedge” fallacies. And my argument against the “well regulated militia” aspect is quite simple: it confuses the issue. The current wording consists of two clauses, the first is a reason, the second is an action. But through either deliberate attempts to confuse the issue, or simply misreading it, a certain number of people mistakenly think that the current wording does not mean a right for individuals to bear arms. It does, but my rendering would remove any confusion.

  79. 79
    democommie

    sundoga:

    For a guy who owns no gunz you have a surprisingly keen grasp of the fallacious notion that the 2nd Amendment, and it alone among the almost 30 Amendments, is INVIOLABLE AND ETERNAL. It’s not.

    You live in Australia where people can own firearms, last I heard. What they can’t own are fucktons of gunz that have no discernible purpose beyond killing people–at a pretty good clip, no pun intended.

    I like guns, I am allowed to buy any long gun that is not listed as banned (millions of them are not banned by either NY or the U.S. federal government). But don’t own any.

    I don’t hunt. I’m not vainglorious or stupid enough to think that having a gun in my house will save me from the lawless or a repressive government.

    The notion, held by millions of rabid gunzloonz, that they will go all Rambo on the federal gummint is dangerously stupid. It won’t just get them killed if push comes to shove. It’s been amply demonstrated in at least the last three or four military interventions that the U.S. has been involved in that while the commanding generals may say that they want no collateral damage, the average soldier will and has killed anyone that they perceive to be a threat when they are in hostile territory.

    If people want to be citizen soldiers, they need to join their local National Guard unit. If they want to be Red Dawn fantasists they need to be watched.

  80. 80
    Suido

    Suido – DLP, Greens, Democrats (various independents and minor parties) … any of those ringing a bell?

    Independents and minor parties do not a multi party system make. Given the permanent coalition between the Libs and the various Country parties, we don’t have a third party of comparable size. I hope the Greens keep growing, but in comparison to the multi party systems seen in Europe, or even the 3 party system in England, I think it’s correct to call Australia a two party system.

    Proportional voting tend to increase the possibility of a third party candidate, plurality voting (First-past-the-post, majoritarian and so on) tend to decrease it.

    All true. However, in spite of our preferential voting system, we’re still stuck with two major parties which suck up the vast majority of the vote and representation – the largest number of lower house seats held by minor parties/independents since WW2 is 6.

    as to pandering, how would having non-compulsory voting be an improvement, exactly?

    It makes sense to me that parties should actually have to impress voters, not just be slightly better than the other mob. Pandering to extremes is always going to be a problem, but when both parties are pandering to the exact same set of voters and ignoring the vast majority of the electorate because over 80% of the electorate votes the same way every time, you have a different set of problems.

    The solution to this is not just about compulsory/non-compulsory voting. I would also advocate more parties, smaller districts for lower house seats, reduced enforcement of party line voting by the whips (one thing I think that the US does well is have politicians judged on their individual legislative record), more quantifiable comparisons between proposed policies and better media packaging of politics.

    I do see the advantages of compulsory voting, but I think it gets trumpeted as a silver bullet, a guarantee of better democratic process. I’m challenging that with a helpful dose of reality.

  81. 81
    sundoga

    democommie, you seem to have me confused with someone else. Who, I don’t know, because no one in this set of comments has made any statements about the 2nd being “INVIOLABLE AND ETERNAL”.
    You want restrictions? I think the National Firearms Act of 1934 is a good start. It more-or-less bans machine guns, cannon, explosive devices and short-barrel weapons (such as sawn-off shotguns). As the Supreme Court has said, “The Constitution is not a suicide pact.”
    And while I am under no illusions about being able to see off a batallion of US Army infantry, a well armed household could indeed resist the illegal actions of a renegade sherriff or an out of control federal agency…as was shown at Ruby Ridge. Such actions may later need to be defended in court, but don’t forget that no one at Ruby Ridge was found guilty for any acts they performed in the siege. (Randy Weaver was found guilty on two counts of events that occurred prior).
    Oh, and no, I cannot own a firearm here. In Australia you are required to show a “valid requirement” to have the privilege of owning a bolt-action longarm. I live in the city – the chances of ANY reason I might give being accepted is virtually nil.
    If you or any other were to propose a repeal of the 2nd amendment, go for it. I might even vote for it (I am a US citizen). What I cannot abide are these “end runs” at the constitution and attempts to “classify” guns out of existence, which is disrespectful of both the constitution and people’s intelligence. My proposed alteration would change nothing, but clarify the situation.
    You can continue to denigrate everyone who disagrees with you as “gunzloonz”, or you might actually think about an opposing point of view clearly. You might find we have more in common than you think.

  82. 82
    dingojack

    sundoga – the correlation between the freedom to own firearms and property rights, protection from intrusive government, freedom of speech and business rights are all virtually flat with extremely weak correlations (>0.005) when measured from aggregated indicators across 140+ countries.
    Dingo
    —-
    Using Ruby Ridge to bolster some kind of “owning guns is a good idea” argument is sort of like arguing that asking Ivan Milat to give your wife or daughter a lift home is a good idea.

  83. 83
    Nick Gotts
    Proportional voting tend to increase the possibility of a third party candidate, plurality voting (First-past-the-post, majoritarian and so on) tend to decrease it.

    All true. However, in spite of our preferential voting system, we’re still stuck with two major parties which suck up the vast majority of the vote and representation – Suido

    A preferential electoral system isn’t the same as a proportional one – although a system can be both, as I believe your (Australian) Senate elections are. The Australian House of Reps electoral system isn’t proportional, and in fact uses one of the few systems that may favour a party duopoly more even than First Past the Post.

  84. 84
    dingojack

    Nick – never claimed it was.
    Dingo

  85. 85
    Nick Gotts

    Most of the suggestions made seem sensible, but I don’t see much about what the main problems stemming at least in part from the current constitution are – which should inform the choice of amendment(s). I’d identify four areas:
    1) Undemocratic ways in which special interests can influence the electoral and legislative processes (campaign finance, gerrymandering, lobbying, state-level voter restriction initiatives).
    2) The party duopoly. This may once have looked like a curb on extremism, but you’d have to be pretty unobservant to make that claim now. With that justification out of the way, what benefit justifies its effect in stifling political alternatives?
    3) Legislative gridlock. There’s a lot to be said for the separation of powers, but as we’ve seen over the past four years, even one chamber of Congress irreconcilably opposed to the President can make legislative action almost impossible, and undermine the economy; while a run of demographic good fortune could enable one party to pack the Supreme Court for decades, so it would repeatedly strike down the other party’s legislation (note how even the feeble compromise of Obamacare was hostage to the judgment of the Supremes). Most seriously, there seems no way an international treaty on greenhouse gas emissions could ever get the required 2/3 majority in the Senate.
    4) Constitutional inertia. The whole discussion is moot, because changing the Constitution is so infernally difficult. Again, this has its advantages – you don’t want a constitution that can be radically changed by a single referendum, or simple majority vote in an assembly. But requiring 2/3 majorities in each house, and ratification by 3/4 of the states, is a huge barrier, particularly in such a bitterly divided country as at present. Anyhow, changing this part of the constitution would, I am sure, be impossible; so almost certainly*, none of the suggestions made by others will be enacted.

    Given this, and the point in bold above, I conclude that the best chance of saving civilization is a timely revolution in the USA. I further conclude that civilization is unlikely to be saved.

    * I concede that the 12 amendments in the 20th century show that the barrier isn’t insuperable.

  86. 86
    Nick Gotts

    Dingojack@84,

    I didn’t say you did. I was replying to Suido, including hir quote from you for context.

  87. 87
    dingojack

    Nick – sorry about that.
    Dingo

  88. 88
    Nick Gotts

    Dingo,
    Thanks – accepted. I’ll take the opportunity to apologise for being so personally abusive in the argument over atheism in babies; it was uncalled for.

  89. 89
    sundoga

    Dingo – The point is not that the one is required for the other. The point is that the one enhances and protects the other. You may consider my lack of trust in government to be overly paranoid, but do you disagree with my holding that viewpoint?
    As for Ruby Ridge, why so? It was a relatively clear case of a government body running completely out of control. The worst aspect of it was that the same organizations – in some cases, the same individuals – went on to repeat their mistakes at Waco.

  90. 90
    nathangrammer

    Every several decades, we have to come up with a new law or constitutional amendment granting civil rights and liberties to a new group that we had not previously realized needed them. I’m thinking in particular of the 13th, 15th, 19th, and 26th amendments, and a whole host of laws like the Americans with Disabilities Act and the Lily Ledbetter Fair Pay Act.

    Right now, we’re fighting over gay rights. Within my lifetime, the fight over polyamory rights will begin in earnest. These groups will both need laws or amendments providing for their rights. At some point, maybe the ERA will make a comeback, too.

    After that, in the distant future, new groups will continue to rise up demanding rights that at this point we have’t even realized deserve or are denied them. Cyborgs, maybe, or artificial intelligences, or extraterrestrials, or uplifted animals, or some other group that doesn’t even exist yet.

    The procedure has historically been to grant rights to each group individually. The problem is, despite the existence of the 9th amendment, that this means each group isn’t guaranteed rights until they get their own law or amendment.

    I would turn this on its head. I would craft an amendment specifying a few groups against whom it is permissible to discriminate, and guarantee the civil rights, civil liberties, and equal treatment of all individuals who are not specifically called out in this amendment.

    So this amendment would say it is permissible to discriminate against, e.g., felons, minors, anybody who fails some specific test of personhood (e.g., Mary Anne Warren’s 5 Criteria of Personhood), and maybe a provision for specific circumstances under which it’s okay to discriminate against people who aren’t American citizens, and that’s it. Everybody else is guaranteed equal treatment by law.

    Gay marriage and polygamy are automatically legal, because homosexuals and polyamorists aren’t spelled out as groups that it’s okay to discriminate against. Discrimination against cyborgs and extraterrestrials will never be legal. As soon as AIs and uplifted animals are sophisticated enough to pass the personhood test, they automatically get all the same rights as a human would (including citizenship). And so on.

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