How to Write a Constitution

The title is a bit ostentatious, but it’s the best I could think of. Though I don’t really have the resources to give this topic justice, I was thinking about it, so decided to write a post on my Memorial Day time off.

I take for my reference the US Constitution of 1787. I hope the copy I have is accurate.

Talking about ostentatious: It starts, “We the People of the United States…” That’s nice, but probably a little broad. It should certainly mention who agreed to it, if not who actually wrote it. It is basically a piece of literature, so it could have an author.

Purpose

The preamble lists the things this government is to carry out:
Form a more perfect union;
Establish justice;
Insure domestic tranquility;
Provide for the common defense;
Promote the general welfare;
Secure the blessings of liberty…to our posterity.

This is important. These are the long-term and continuing goals and purposes of this government; they are its job. A group needs goals and purposes, and must sometimes be reminded of them. “General welfare” is a bit vague, but we’ll leave it that way for now.

Legislative Powers

I find it a little odd to bring this up first, rather than giving a more general overview of how the system was supposed to work. Too many incorrect assumptions could be made here; we need to spell this out better.

Article 0.

We propose that this nation take the form of a constitutional Republic. This gives us a layered approach to both policy-making and action. There are individuals at each level who represent, or preside over, a group of individuals at the next lower level. Every member of the system is not normally expected to interact with anyone above their level or below the level they supervise or represent in matters of official business, except under special circumstances. Every group at every level has the right to operate as it sees fit, and this right can only be overridden as described below. The assumption is that most people already know what to do or can figure it out.

Legislation:

The purpose of legislation is to set guidelines (policy, laws) that bind those at that level to act within certain limitations or restrictions. This document specifically covers the national, or federal, level, but is also meant to serve as a guide, or pattern, for lower levels.

I will not cover the details of Article 1 here, however, we cannot move on before inspecting Section 8.

Areas of legislative authority / responsibility:

  • Taxes, duties, imposts and excises (to be uniform across all states).
  • Specify outlay to pay debts.
  • Specify outlay to provide for the common defense.
  • Specify outlay to provide for the general welfare.
  • Borrow money.
  • Regulate commerce beyond state boundaries or responsibilities.
  • Regulate immigration.
  • Regulate bankruptcies.
  • Coin money, regulate its value, and establish standard weight and measures.
  • Establish Post Offices and post roads (ensure free flow of communications between citizens).
  • Offer limited patent and copyright protection to authors and inventors.
  • Establish lower-level judicial bodies (tribunals) as needed.
  • Protect the nation from piracy at sea.
  • Declare war, and similar war powers.
  • Raise temporary armies while maintaining a permanent navy.
  • Organizing and activating the Militia for certain purposes.
  • Rule over the seat of government.
  • There are more points, but these are the main ones…

Executive Power

Traditionally, the executives of history (kings, emperors, etc.) got to make their own rules. This was not just a matter of egotism. They had things to get done and they needed to be able to act. One of their favorite pastimes seems to have been making war. This had to change. The chief executive of a nation does have the “power” to make war, as the military is under his/her command. However, it was considered that war should be a matter of policy and not executive action, and this still seems the wiser route.

To further discourage executive policy-making, the Founders proposed putting the matter up for a vote every four years. This seems rather arbitrary to me; why not whenever a majority or some higher ratio of legislators found it needful, but not more often than every four (or three?) years. But we shall leave this be for the time being. The point is: You can’t get policy continuity in the Executive Branch if the senior person is changing all the time, and that’s the way we want it.

Judicial Power

“Judges” have traditionally served a wide variety of functions. At their best, they act themselves, or by guiding a jury (or similar group of peers) to determine who the real criminal is when something goes wrong. As far as I can tell, they do not have a particularly high reputation in this regard. Like anyone else faced with a real criminal, the judge can be threatened when faced with a “hard decision” and forced to back down.

If judges cannot be depended upon to uphold the ethics standards of the group, then who can be? If a group is that far gone, there is little hope for it. But for now, let’s move on to Article 4.

States

This section (Article 4) goes over certain matters of equal treatment across state lines. After all, these states are all part of a Republic, and are supposed to cooperate with each other. You can’t have the police forces of two states in battle because their laws are different.

But I feel this whole subject of states is not taken far enough in this document.

Article 4.

The full and globally-recognized territory of this nation has been – and shall continue to be – divided into geographical regions known as “states” or “territories” based on a combination of historical and geographical factors. States have the right of sovereign rule within their boundaries, assuming the restrictions imposed by this document are respected. Territories have not yet attained the full rights of states, but may petition Congress to be granted these.

All policy (legislative), executive and judicial actions originating at the federal level of this republic shall not extend any further than the states, except under most extraordinary circumstances. Certainly, no federal law, federal action through any of its agents, or federal judicial decision shall apply to or be binding on any individual citizen (that being understood to include only real persons, not “private” entities created through legal means) unless that citizen has specifically requested such a bypass.

It is further expected that state governments will, in turn, deal only with county governments, and those only with municipal governments and those only with neighborhood governments (where that may apply), as this has proven to be more acceptable to citizens and more conducive to individual initiative and thus, the general welfare.

Private Enterprise. This does not mean that a private enterprise, operating across state boundaries and employing numbers comparable to numbers of citizens in a state, or producing things of value on a similar order to that of the combined production of all smaller enterprises within a state, should expect to be favored by the rights and protections afforded smaller enterprises by a state, simply by virtue of the location of their headquarters. Indeed, if any enterprise should grow to the extent outlined above, it can expect to be required to deal directly with the federal government in all matters where it must be treated as a whole, as in the matter of taxation.

The above summarizes the points that I think are important in the game of operating a nation. Though using the context of the US Constitution has limited my comments in some ways, the points I have mentioned are some of the most important. We have erred by overlooking them.

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