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   CoursesCritical Theory, Cultural Studies, and Postmodern TheoryColonial Latin
   American HistoryThe Early Republic, 1807-1820The Culture of the Early
   RepublicAmerican Economic History, Part IAmerican Economic History, Part
   IIThe American Revolution: A Constitutional ConflictAustrian Economics, Step
   by StepThe History of Conservatism and LibertarianismThe History and Heritage
   of Western and American CivilizationHistory of Economic Thought, Part I:
   Classical Economics and the Marginal RevolutionHistory of Economic Thought,
   Part II: 20th Century EconomicsFreedom’s Progress: The History of Political
   Thought, Part IFreedom’s Progress: The History of Political Thought, Part
   IIHow Alexander Hamilton Screwed Up AmericaIntroduction to LogicJohn Maynard
   Keynes: His System and Its FallaciesLibertarianism and Science Fiction: The
   Golden Age from Bradbury to RoddenberryLittle Houses of Liberty: Laura
   Ingalls Wilder’s Literary GeniusMythology and Western Civilization: From
   Plato to TolkienThe Thomas Jefferson Nobody KnowsScience Fiction, Liberty,
   and Dystopia, Part IScience Fiction, Liberty, and Dystopia, Part IIThe 10
   Worst and 10 Best PresidentsTrails West: How Freedom Settled the WestU.S.
   Constitutional HistoryU.S. History to 1877U.S. History Since 1877Western
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A BETTER BILL OF RIGHTS, CONSTITUTION 2.0



Home › Forums › U.S. Constitutional History › A better Bill of Rights,
Constitution 2.0

 * This topic has 9 replies, 4 voices, and was last updated 8 years, 6 months
   ago by gutzmank.

Viewing 10 posts - 1 through 10 (of 10 total)

 * Author
   Posts
   
 * April 14, 2014 at 12:07 am #20834
   travwms
   Participant
   
   At one point in this course one of you mentions that the Bill of Rights that
   Madison put forth was a watered down list that could have been much better. I
   was wondering what the text of a better bill of rights would consist of?
   
   There is in fact so much critical analysis of the Constitution in this
   course, that I started thinking that maybe the whole thing could be a lot
   better. Is there text on the internet someplace or some organization that
   recommends alternate text for a better, more perfect Constitution?
   
   Maybe one of our U.S. States or a modern nation-state has adopted one that is
   actually better than the one we have. What are your thoughts?
   
   May 19, 2014 at 1:48 pm #20835
   Brion McClanahan
   Member
   
   When I was in college, the entire political science department (Marxists)
   believed they had all the answers for a better Constitution, better governing
   system, and better political system. This is debated all the time. It was
   even debated while the Constitution was being ratified. The Confederate
   Constitution of 1861 sought to make improvements. Certainly the infallible
   reputation for the Constitution and the Framers is debatable.
   
   May 22, 2014 at 9:17 pm #20836
   gutzmank
   Participant
   
   Like the Federalists of 1787, I do believe that the Articles of Confederation
   were imperfect. A government that cannot keep an army in the field or pay for
   embassies to the three main European countries is not fit to be. I also think
   it made sense to change the structure of the Congress to give population
   apportionment in one house. Article V makes sense to me, as do Article VI and
   Article VII.
   
   With benefit of hindsight, it is clear that the Confederate Constitution’s
   provision that state legislatures could impeach and remove CSA officials
   within their territories was a good idea–a very good idea. In fact, it’s too
   bad that Madison’s promise that the Federal Government would be tried without
   inferior courts wasn’t actually implemented.
   
   I think that the preamble Thomas Jefferson wrote for the Virginia
   Constitution of 1776 is far superior to Gouverneur Morris’s US version–and
   that’s no accident. Certainly it would have had better effects if used in the
   US Constitution than the US version has had, even if it had had no effect at
   all.
   
   Virginia’s 1776 Constitution provided term limits for congressmen, which I
   think are sorely needed now. Virginia also didn’t give the Executive Branch
   veto power, and I think that would be a good idea in the US Constitution too.
   
   I could go on, but you get the point: the US Constitution is highly
   imperfect, and better arrangements are available in the record of American
   history. It would be a waste of time to draft a better constitution, however,
   as nothing would come of the exercise. I am involved as a board of advisors
   member in the Compact for America effort to add a balanced budget
   amendment–and thus move toward Jefferson’s wish that government borrowing
   could be eliminated.
   
   October 5, 2014 at 12:56 am #20837
   craigsoucie
   Member
   
   I was considering it as an exercise, not necessarily in futility, but in
   understanding what happened to the Constitution.
   
   We started off with a pretty good vision statement, the Declaration of
   Independence, where it laid out the foundation for government that would
   serve us well and yet we ended up with the Constitution. Being more of a
   project minded person, I have to ask, what happened? Our deliverables are not
   at all what our vision statement was leading us towards. The proper body of
   the Constitution is all about government, the Amendments are nice addons but
   don’t really do what they were supposed to, and there is no mention of any
   need to protect our Rights. I am looking for parallels in the Constitution to
   these points from the Declaration of Independence:
   
   1. It is a self-evident truth that we are all created equal from our Creator
   (and hence treated such by the State)
   
   2. We have unalienable Rights. Both the word ‘unalienable’ and the
   capitalization are important as the first defines them to not be a gift from
   government and the latter makes them proper nouns, along with other elevated
   things like God and Country.
   
   3. The purpose of government is to secure and protect our Rights.
   
   4. Government powers come from the governed.
   
   5. How to deal with a government that has become insufferable.
   
   Like I said, I am project minded and I sometimes also think a little bit like
   a lawyer. I am missing a lot of things in the Constitution that seem to have
   been requirements before. I see a mention of ‘establishing Justice’ which
   might mean something about equality but in a weaselword way I have to note
   that establishing something means it only has to happen once and doesn’t mean
   that you need to continue it. Any good lawyer should have noted that before
   ink hit the page.
   
   Our ‘rights’ in the Amendments are legislative rights, given by the
   Constitution and implicitly taken away just as easily with the stroke of a
   pen. They are not unalienable and they are common and not treated as special
   in any way. As I suppose they were intended to be.
   
   The purpose of government is to… make a more perfect Union (they capitalized
   that…), Justice, Tranquillity, defence, general welfare, Blessings of
   Liberty… nothing there about securing and protecting our Rights. Of course,
   the Constitution didn’t have any Rights to protect, that was the Amendments,
   so maybe there is some symmetry. But the Amendments don’t have that either.
   Where does it say that the purpose of government is to secure and protect our
   Rights? Nowhere.
   
   There is a reference to the People, “We, the People…”, but that is about all
   that is said. What happened? That is the only reference to powers coming from
   the People? That is how my wife says I say thank you. There is no causal link
   from the powers that the People have to the powers that the Constitution
   names. I understand why, the Constitution wants to have those extraordinary
   powers that the people don’t have, e.g. regulating interstate trade, but
   without that linkage there is no throttle on what may be conceived. It is not
   a matter of what powers we give to our proxy now, it is a matter of what can
   be invented and legislated in. Bad. Very bad idea, FF.
   
   And lastly, if the Constitution was still being written and I had read up to
   the next to last page, I could have predicted that there would be no out
   clause. It is every lawyers coup de grace that they write a contract that is
   so in their favour and that there is no way to get out of it. I think they
   learned from the guys before them who said in perpetuity but which actually
   lasted about 10 years. Make it so it is even harder to do to the new guys
   what was done to the old guys.
   
   If my SOW (Statement of Work) was the Declaration of Independence, if it
   really was just the vision statement my customer had agreed upon for our
   project, and I delivered the Constitution, I would have major issues. There
   are too many deviations from the original points, or no mention of them at
   all. Did someone forget to do a Gap analysis? So, what happened here? Why are
   we so far off base on this? And, more important, how do we fix this mess?
   People died based on the ideals in the Declaration, why are they ignored now?
   
   (Sorry for the length of this post but I didn’t have time to write a shorter
   one)
   
   October 8, 2014 at 1:02 pm #20838
   Brion McClanahan
   Member
   
   The Declaration is not a vision statement and was never intended to be so.
   That is a Straussian position and one that will lead to great errors in the
   understanding of American history.
   
   October 8, 2014 at 3:00 pm #20839
   craigsoucie
   Member
   
   I didn’t know what a “Straussian position” was so I googled it. The first two
   hits said that Straussians are political philosophers who argue that Socratic
   method is still possible and the second defended them as not being fascists
   but being liberal democrats instead…I don’t know if I’ve ever been identified
   as that yet so thanks for the new experience.
   
   I understand that the Declaration was not intended to be a vision statement,
   the FF at that time didn’t know that they needed one. However, it becomes one
   by default when one tries to understand what we all agreed on at the founding
   of this country. It simply defines what we told the world about us, our
   principles, our objectives, and our reasons. I don’t understand how a public
   description of what we considered good government in 1776 would not be
   relevant to any government we formed, esp one that is formed only a decade or
   so later. If I were good King George at the time I might have been amused at
   what we say and then what we do.
   
   That said, I don’t think that your answer was an answer to the question(s) I
   posed. It lumped the discussion into a category of things that are not useful
   to discuss. I only know that argument as a debating tactic so I am not sure
   if it is meant to inform me of something or just to make me stop asking
   questions. I make a poor groupie so if it is the latter reason then so long
   and thanks for all the fish. If it is the former reason, however, then please
   inform me better. I don’t understand if you think you have answered the
   questions I asked, if you are citing doctrine, or if there is an additional
   meaning to what you said.
   
   October 15, 2014 at 1:04 pm #20840
   Brion McClanahan
   Member
   
   I was not trying to disparage you or your argument nor was I calling YOU a
   Straussian, but your position that the Declaration of Independence somehow is
   a “founding” document is a Straussian position.
   
   The Declaration is not a “public description of what we considered good
   government in 1776.” It was a “defounding” document if nothing else.
   Certainly, it was an expression of the American mind as Jefferson said, but
   the only portion of the document that could be taken as a reference to
   government is the last paragraph where Jefferson announces that there are 13
   Free and Independent States similar to the State of Great Britain. The second
   paragraph were historians and Americans in general focus so much time and
   energy was a justification for why Americans believed they had a right to
   secede from the Empire, i.e. longstanding abuse of English liberties.
   
   That is where I think your entire premise is wrong. The Declaration was never
   intended to be a “vision” for American government. The vision for American
   government could be found in British and ancient antecedents. As John
   Dickinson said, “Experience must be our only guide.”
   
   The Constitution failed to achieve what proponents said it would, namely a
   federal republic of delegated powers, because the States ultimately did not
   have the codified legal authority to check federal usurpations of power. They
   thought the language of the 10th Amendment would be enough. They were wrong.
   
   October 21, 2014 at 7:38 pm #20841
   gutzmank
   Participant
   
   The idea of the Declaration of Independence as a mission statement originated
   not with the Straussians, but with black abolitionists during the Revolution.
   In general, no one bought the idea at the time; indeed, you will search in
   vain for anyone having said that during the ratification campaigns.
   
   As to the absence of the idea that power comes from the people from the
   Constitution, I suggest that you re-read Articles V and VII with the fact
   that “states” refers to “the sovereign people of each state” in mind. Then
   you’ll see that the Constitution is actually based on this idea.
   
   November 8, 2014 at 2:11 pm #20842
   craigsoucie
   Member
   
   I debated with myself whether to continue this conversation because I think
   we are just going to have to agree to disagree. However, I find some of the
   points you both are making to be remarkable and so I will remark on them.
   
   First, the Declaration as a model for government. Agreed, it does not define
   the mechanics of how government should be instituted. Instead it tells us
   what good government is in order to explain that we did not have one. It
   tells us that good government is:
   
   “We hold these truths to be self-evident, that all men are created equal,
   that they are endowed by their Creator with certain unalienable Rights, that
   among these are Life, Liberty and the pursuit of Happiness.–That to secure
   these rights, Governments are instituted among Men, deriving their just
   powers from the consent of the governed, –That whenever any Form of
   Government becomes destructive of these ends, it is the Right of the People
   to alter or to abolish it, and to institute new Government, laying its
   foundation on such principles and organizing its powers in such form, as to
   them shall seem most likely to effect their Safety and Happiness. Prudence…”
   
   In that, it does define good government and that is the published model that
   I am referring to and which is not the model that the Constitution followed.
   Which is a good segue into…
   
   Ref the Articles, those are not the people, those are the states. The implied
   “sovereign people” are not sovereign if their Rights are given to them by a
   state or the ‘State’. This is an important point that the Declaration made
   that was not included in the Constitution as it does not acknowledge our
   unalienable Rights. Instead it grants them to us via Amendments, which are by
   definition, State granted and State controlled. Per our current government,
   we are a people that are privileged by government with certain Rights. The
   key word being ‘privileged’ and the transitory nature that implies.
   
   In contrast, my opinion, a government that was based on the ideas in the
   Declaration would have started with our unalienable Rights and our Powers and
   defined itself based on protecting those Rights by acting as our Proxy using
   our lent Powers. If we were to discuss a Constitution 2.0 that is where I
   would want to start.
   
   Lastly, ref what I think is a dismissal of the Declaration as something,
   well, to be dismissed, I would disagree. Ask an average American if any of
   the following phrases are familiar: Right to Life, Liberty and the Pursuit of
   Happiness; Unalienable Rights; Consent of the Governed; These Truths to be
   Self-Evident… Then ask them if these are part of being American, part of our
   Country, and part of our Government. I find that almost everyone I have asked
   says yes or, sarcastically, not anymore. The Declaration was not intended to
   be a vision statement but its ideals are part of the American cultural
   fabric. The irony that effectively none of those ideals are in the legal
   description of our government is poignant. The fact that our Rights can be
   removed, singly or in bulk, by the next Amendment is scary. The historical
   perspective on the Declaration notwithstanding, it has introduced
   expectations that were never intended to be met by the Constitution.
   Regardless of the historical reasons for that it is what we have today.
   
   November 20, 2014 at 9:35 pm #20843
   gutzmank
   Participant
   
   I’m not sure what part of this you intended as a response to me.
   
   The reason the US Constitution does not include basic philosophical
   statements is that it was intended as a federal constitution–that is, as a
   means of establishing a government with a few, delegated powers. Since the
   government would have only the enumerated powers, there was no need for a
   philosophical statement. A state–Virginia, for example–might precede its
   constitution with a philosophical declaration of rights, on which the state
   constitution would be based, because the state constitution was creating a
   government whose only limitations were those listed in the declaration.
   Former Philadelphia Convention delegate James Wilson explained this in his
   famous Statehouse Speech of October 6, 1787 (19 days after he signed the
   Constitution):
   
   http://www.constitution.org/afp/jwilson0.htm
   
   Wilson was one of the handful of leading orators in the Philadelphia
   Convention, and this speech was more widely reprinted and cited than any
   other Federalist argument during the ratification campaign–certainly more
   influential at the time than The Federalist Papers. Soon after Wilson gave
   this speech, President Washington appointed him to be among the first members
   of the Supreme Court.

   
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