The Second Constitution of the United States: A new and improved draft for the 21st century

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Summary

This is a proposed revision of the United States Constitution which aims to improve the current Constitution in areas such as foreign policy architecture, citizenship, and rotation of offices while retaining other features such as checks and balances and divided government.  The goal is to encourage collaboration to draft and ratify a better version of the United States Constitution.

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     Note: This draft elevates the State department from being one of many executive agencies to being a separate branch of government with authority to make long-range consistent foreign policy. The legislature chooses the president in a parliamentary arrangement, and both president and Congress choose the State department. Further, it specifies citizenship as an active contractual relation between a person and the state with specific duties and privileges. A multi-party system will replace the two-party system; party-proportional voting will replace the winner-takes-all arrangement. A system of checks and balances among different branches of government is retained. State governments will have greater authority in a restored federal arrangement.

                                       ----- beginning of proposed draft -----

We the citizens of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Article I -- Congress

Section 1. The legislative power

Organization. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of the House of Representatives and the Senate.

Frequency of assembly. The Congress shall assemble at least once every month. Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.

Voting. Each house shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each house may provide.

Rules. Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Record keeping. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal.

Compensation. The senators and representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States.

Privilege. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house, they shall not be questioned in any other place.

No double offices. No senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a member of either house during his continuance in office.

Lawmaking. Both Senate and House must agree on a bill before it becomes law.

Transparency. The legislature must make public its decisions, allocations of funds, summaries of discussions, voting records on bills, and other matters with the exception of matters relating to national security, defense, or other foreign policy issues.

Powers of Congress:

• To lay and collect taxes, duties, imposts and excises;

• To pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

• To borrow money on the credit of the United States;

• To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

• To provide for the punishment of counterfeiting the securities and current coin of the United States;

• To establish post offices and post roads;

• To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

• To constitute tribunals inferior to the Supreme Court;

• To provide funds to support all national military forces, including armies, navies, air forces, marines, space forces, command forces, and supporting personnel;

• To make rules for the regulation of the militia and national guard forces;

• To provide for calling forth the militia to execute the laws of the union, suppress insurrections, prevent tyranny, and repel invasions in the event that foreign armies are within the borders of the United States;

• To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

• To exercise exclusive legislation in all cases whatsoever over the District of Columbia, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be;

• To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Restrictions on Congress:

• The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
• During peacetime, if national debt exceeds gross domestic product by 3%, then each senator must explain the excess to their own state legislature, and receive a vote of confidence from the same, and, lacking this, then the senator must vacate his or her senate seat.

• No bill of attainder or ex post facto law shall be passed.

• No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

• No tax or duty shall be laid on articles exported from any state.

• No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from, one state, be obliged to enter, clear, or pay duties in another.

• No money shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

• No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
• Tax rules must be simple, straightforward and clear.
• Congressional officials must make full and regular disclosures of their finances to the public, including property owned, income, bank accounts, and other relevant data.

Section 2. The House of Representatives

Body. The House of Representatives shall be composed of members chosen every second year by the people of the several states. Their number from each state will be based on an actual enumeration made every ten years, in such manner as they shall by law direct. Representatives shall be apportioned among the several states within this Union and the District of Columbia, according to their respective numbers. The total number of representatives will be 435. The District of Columbia shall have at least one representative. If new states are added or subtracted, then representation shall change accordingly such that all citizens shall have representation in the House of Representatives.

A benefit to the proposed arrangement is the rotation of offices. This
model was used to great effect by the Roman Republic as well as by
officers in the early New England town hall meetings. Officials would
change positions every year or two which (1) prevented corruption and
(2) ensured that officials became highly knowledgeable in government.
In contrast, the current arrangement features congresspersons who,
once in office, are virtually unassailable (90%+ reelection rates for
those congresspersons who choose to run). The result is an
unfortunate class of permanent congresspersons.
 

Qualifications for candidates. Each candidate for election to the House of Representatives must have served in a state legislature for at least one year, be a citizen of the United States, and shall declare either membership in a specific political party or no membership.

Election. Each citizen shall cast one vote for a particular party. States shall not place unreasonable restrictions on persons or parties on the ballots. Each state will tally the election results for each party and assign seats based on the proportion of votes; for example, if a party wins X% of the vote, then it wins X% of the legislative seats from that state. All of the elected representatives from a state will represent all of the people of that state. When vacancies happen in the Representation from any state, the President thereof shall issue Writs of Election to fill such vacancies. The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. Each representative shall have one vote.

Length of service. Members may serve two years, after which they must not serve in the House for the following two years. Every two year term must be followed by a two year absence.

Leadership. The House of Representatives shall choose their speaker and other officers.

House powers.  The House of Representatives shall have the sole power of impeachment applicable to any officer in the federal government including the president, head of State, foreign policy advisers, Supreme Court justices, department heads, or other officials in government. All bills for raising revenue shall originate in the House of Representatives. At the end of their two-year term, in December, the House shall choose one senator to be president for the next two years, and if the Senate approves, then he or she shall be president, to take office in January.

Duties. Representatives must, to the best of their ability, answer reasonable questions posed by citizens at meetings, whether in person, by proxy, or by writing or other communication.

Section 3. The Senate

Qualifications for office. Senators must have served for at least two years in the House of Representatives, a state legislature or as a state governor. They must have received training in the law. They must be an inhabitant of the state which they represent.

Appointment. The Senate of the United States shall be composed of two senators from each state, chosen by the state legislature thereof for six years; and each senator shall have one vote. If vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the governor of the respective state may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.

Leadership. The Senate shall choose their officers, and also a president pro tempore.

Senate powers.

• Judging impeachments. The Senate shall have the sole power to try all impeachments and decide matters involving treason, bribery, or other high crimes. When sitting for that purpose, they shall be on oath or affirmation. No official shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

• Choosing foreign policy advisors. The Senate shall have sole power to appoint and dismiss particular foreign policy advisors with the concurrence of three fourths of its members.
• Confirmations. The Senate shall confirm or deny pardons recommended by the head of State.
• Legislation. The Senate may propose or concur with amendments regarding appropriations as on other bills.

 Duties. Senators may be summoned by their state legislature to explain foreign policy decisions and to answer questions posed by state officials, but a particular senator may not be summoned if the departure meant insufficient remaining senators to constitute a quorum.

Article II -- The President

Office of the president. The executive power shall be vested in the office of president of the United States of America.

Requirements. The president must be a member of the Senate to be eligible for the presidency.

Election. The president shall be chosen by the House of Representatives at the end of each two-year term with concurrence by a majority vote in the Senate, and a new senator shall be appointed by the same state as that of the senator selected as president. If a president is removed by a vote of no confidence, then the House shall elect a new president, subject to confirmation by the Senate, and the president shall return to the Senate unless their term as a senator has expired.

Removal from office. In case of the removal of the president from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the House shall choose another senator to act as president, and such officer shall act accordingly. If the president will be unable to perform his or her duties for a week or longer, then the House shall select a temporary president to fulfill his or her duties until the period of disability is over.

Weekly reporting. Each week, at a  time scheduled by law, the president must appear before the House to answer questions in a half-hour-long session broadcast to the public.

Continuation in office. Each week the president may continue in office provided there is no vote of no confidence, in which case the president is removed from office immediately and he or she must return to the Senate, and the extra senator filling the former president's seat (in his or her stead) must step down, and a new president must be selected. The maximum total length of office of a president is six years, after which he or she is prohibited from serving as president at any time in the future.

Compensation. The president shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

Powers. The president shall take care that the laws be faithfully executed. He or she shall manage the executive operations of domestic national government, including agencies created by Congress including the Treasury, Attorney General, regulatory agencies, and others which enact and enforce the laws of the United States. He or she shall be in charge of domestic security including crime prevention, counter-terrorism, and the public welfare. He or she shall appoint public ministers with the advice and consent of the Senate. The president may require the foreign policy advisors to appoint a new head of State, and he or she can remove the head of State from government entirely but only with approval by two thirds of the Senate.

Restrictions. The president's sphere of authority is limited to domestic matters. He or she shall not interfere with making or executing foreign policy. He or she may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective office. The president shall be commander in chief of the militia of the several states, when called into the actual service of the United States. and be the supreme commander of all national guard forces of the states. The president shall have power to grant reprieves and pardons for offenses against the United States, provided that at least half of the Senate concur, except in cases of impeachment. The president shall nominate justices of the Supreme Court, subject to approval by the Senate. The president shall appoint all other ministers and staff positions necessary to run the government. The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

Reporting. He or she shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he or she may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he or she may adjourn them to such time as is deemed proper.

Article III -- The Supreme Court

Body. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

Number. The Supreme Court shall have nine justices.

Length of service. Justices can serve up to sixteen years, at which time they must resign.

Appointment. Justices shall be nominated by the president, confirmed by the Senate. They must have at least ten years of substantive experience in courtrooms as trial lawyers or judges.

Leadership. The justices shall elect one of their number to be Chief Justice, who shall serve provided there is consent among the members, and he or she shall assign judges to write opinions.

Scope of authority. The judicial power shall extend to all domestic cases, in law and equity, arising under this Constitution, the laws of the United States, or which shall be made, under their authority, in relation to domestic matters, and to all controversies between (1) two or more states (2) between a state and citizens of another state or between citizens of different states (3) between citizens of the same state claiming lands under grants of different states. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. The Supreme Court can declare a federal law to be unconstitutional if and only if at least seven of the nine justices concur, and it can not declare a state law to be unconstitutional.

Duties. The Supreme Court must deliver an official opinion, when asked by either president or Congress, including a vote count by the justices, about whether a proposed law is constitutional or unconstitutional, but the opinion is not binding on whether a proposed law becomes a law.

Article IV The Department of State

Foreign policy in the current arrangement is made by many different
power centers, making it difficult for the nation to maintain a consistent
long-range effort. No single branch controls policymaking. In the past fifty
years, US foreign policy has had successes (end of Cold War) as well
 as failures (Vietnam War), and a fair overall assessment might be average.
 But that is not good enough in the 21st century, in my view -- challenges
such as nuclear terrorism, rogue states, and rival commercial powers
mean that flawed foreign policy can have tremendous negative effects.
 
Scope of authority. The authority for planning and executing foreign policy decisions, including matters of interrelations with foreign nations and foreign individuals, shall be vested in the Department of State and have sole authority to make short-term and long-term foreign policy decisions, and decide matters such as immigration, treaties, ambassadors, aid programs, war and peace, espionage, citizens who travel to foreign nations, foreigners who travel within the nation, and all other matters between the United States and foreign nations. It shall have power to establish a uniform rule of naturalization. This department serves at the behest of the Congress and President and is fully accountable to domestic government for all of its actions. It shall consist of three branches: the foreign policy advisors, the head of State, and the military court.
 

Section 1.  Foreign policy advisors

Body. Foreign policy advisors will be one hundred in number.

Qualifications. Candidates, when appointed, must be younger than forty years of age, with the exception being when the Constitution is ratified, in which case fifty advisors can be chosen regardless of age.

Length of term. Officials will be appointed for life terms, and can serve as long as they are able, or until they resign, are fired, die, succumb to illness, or are removed from office by impeachment proceedings or other legal action. When a vacancy happens, and the number of foreign policy advisors is less than one hundred, then the Senate must appoint another advisor to keep the body of advisors at one hundred.

With the proposed Constitution, foreign policy is under the complete
authority of the State Department. This allows planners to control all
aspects of decision-making. It uses Tocqueville's sense of an
aristocratic body (the foreign policy advisers) who are like a "wise
man who never dies." It means the nation can benefit from foreign
policy initiatives that take many years, even decades, to bring about.

State department powers and duties. The department of State is charged with making consistent long-term national foreign policy. It must make treaties, make rules relating to immigration or relating to visits by citizens abroad or by foreigners visiting; regulate commerce with foreign nations; define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; grant letters of marque and reprisal, make rules concerning captures on land and water and air and space; construct forts, magazines, arsenals, dockyards, and other needful buildings; and organize armies. They appoint and dismiss the head of State. Officials must make full and regular disclosures of assets, property owned, income, and other financial information to Congress.

Section 2. The head of State

Powers and duties. The head of State will be commander in chief of the national armies, and be in charge of espionage agencies, ambassadors, and all staff and personnel related to these functions. He or she shall make all military appointments. He shall shall receive foreign leaders, including foreign heads of State, ambassadors, and others at his or her discretion.

Section 3. The military court

Body. It shall consist of eleven justices.

Election. Justices will be appointed by the foreign policy advisors and confirmed by a majority vote in the Senate. They shall serve for terms up to fifteen years. Each justice must be a lawyer with experience handling military or international cases. Any particular justice can be removed by the Supreme Court if there is concurrence by seven of the nine Supreme Court justices.

Jurisdiction. The military court will have the final word in interpreting and judging all matters relating to foreign policy, including foreign relations, treaties, acts by citizens or soldiers abroad, or by foreigners in the United States. Its basis is military law subject to stare decisis and a respect for precedent. Its judicial Power shall extend to: all treaties made, or which shall be made, under the authority of the department of State; to all cases affecting ambassadors, other foreign policy officials and consuls;--to all cases of admiralty and maritime jurisdiction; to international controversies to which the United States shall be a party; to controversies between a state, or the citizens thereof, and foreign states, citizens or subjects; to cases involving military discipline of the national armies, or actions by soldiers or officers thereof.

Treason. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

Article V State governments

Regulation of commerce. State governments shall have full authority to manage all domestic issues within their state, including the regulation of commerce as well as rules regarding business, education, the professions, health care, insurance, taxation, and transportation. States must make their rules and procedures clear to neighboring states, businesses, employers, workers and visitors. If a majority of state governments favor a specific plan regarding a certain industry or economic sector, then they may ask Congress to make rules which apply to the entire nation for that industry or sector, and this arrangement will be in force as long as a majority of states agree to this arrangement.
 

Full faith and credit. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

Fugitives.  A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

Restrictions. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

State citizenship. States have full authority to specify rules regarding citizenship in their state, with the exception being that states can not offer state citizenship to persons who are not citizens of the United States. Persons can not be state-citizens of two states, but must choose citizenship in only one particular state; in matters where state citizenship is undecided or disputed or unclear, then the matter will be decided by laws set by Congress.

Protection. The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.

 

Article VI Citizens

Citizens are members of the body politic of the United States who fulfill the duties and enjoy the privileges of citizenship, and who are recognized as citizens by the government and by fellow citizens, and who recognize the Constitution as the legitimate authority of the United States. Citizenship is a relation between the person and the state which is chosen voluntarily by both person and government and which is characterized by effort over time by both. The relation can be dissolved by either the person or the state or by fellow citizens only through due process.

Becoming a citizen. Persons eligible for citizenship must be at least eighteen years of age, be of sound mind, be not substantially dependent on another person, be aware of the duties and privileges of citizenship, and be not a recipient of substantial government aid. To become a citizen, applicants must choose citizenship freely and without duress in a public ceremony and:

1. affirm an oath of loyalty to the nation and to fellow citizens;
2. make a commitment to support individual rights;
3. sign a copy of the Constitution with at least one witness from the government as well as one witness who is a citizen in a manner prescribed by Congress.

Duties. Citizens must vote, attend regularly-held local government meetings, attend jury duty if summoned, serve in the armed forces if summoned, uphold individual rights, obey the law, pay taxes, and defend fellow citizens if government becomes tyrannical. Citizens traveling to foreign nations are bound to observe rules and guidelines issued by the department of State.

Privileges. Citizens are entitled to equal protection under the law, to due process, to be protected by the Bill of Rights, and to be represented by national government when physically out of the nation such as at a foreign nation or territory, and to enjoy all privileges pertaining to citizenship as Congress and states may decide. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

Powers. Citizens, assembled in a citizens' meeting, have the power to summon fellow citizens to attend meetings or to request an explanation from a non-attending citizen about his or her absence. Citizens can initiate legal proceedings against other citizens for failing to observe the requirements of citizenship.

Meetings. Citizens must assemble regularly to discuss public matters. Meetings shall be of limited duration, held at times and in places convenient for a majority of citizens, and compulsory attendance at meetings shall not be more than four hours per year. Notifications of time and place of meetings shall be sent in a timely manner. Attendance must be recorded and posted publicly. Citizens may elect officers to manage these meetings and choose particular rules of order.

Questioning lawmakers. Citizens, assembled, can query lawmakers about past or future choices, and lawmakers can query citizens about their preferences and concerns; it is the duty of each to be responsive to the reasonable requests of the other within a reasonable amount of time. Citizens can summon elected officials at the county, state or federal level, excepting United States senators, to appear before their assembly to answer specific questions; representatives may comply by appearing in person or else by sending a proxy, or, if unavailable, by sending written responses to their questions.

Non-citizens. Persons who live within the nation legally but who are not citizens are non-citizens. All non-citizens should be given regular and reasonable opportunities to apply or re-apply for citizenship, and Congress may specify which procedures or tests must be done before a former citizen can be restored to citizenship. All rights, privileges, duties and responsibilities of non-citizens, as well as designations thereof, shall be made by Congress.

Changes in citizenship status. A citizen can be stripped of citizenship by two methods. First, a citizen may willingly choose to renounce citizenship. Second, government or other citizens can present a case to an impartial jury of citizens and prove beyond a reasonable doubt that a specific citizen has failed to adhere to the duties of citizenship, or has committed some act or transgression which warrants severing the bond of citizenship. Citizenship can be removed from citizens who break the law, who fail to observe the requirements of citizenship such as voting or attending regular local meetings, who fail to show up for military duty if summoned, who commit treason, or who fail to observe proper guidelines when traveling abroad. Before citizenship can be removed from a person, there must be due process in the sense that government must observe the laws and follow proper procedures before the bond of citizenship is severed.

Protections for citizens: the bill of rights

1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
2. A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms in their homes, shall not be infringed.
3. No soldier shall, in time of peace be quartered in any house, without the consent of the owner, but in a manner to be prescribed by law.
4. The right of the people to be secure in their persons, houses, papers, 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.
5. 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, or in the militia, 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 himself, 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.
6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of 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; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
7. In suits at common law, where the value in controversy shall exceed a minimum amount set by law, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Privacy. Citizens have a right of privacy. It is the duty of Congress to specify which information shall be considered private and make rules governing its exposure. Citizens have a right to view their publicly-held private information and to determine which parties or institutions have this information. Keepers of private information, including the government, have a duty to keep private information private, and may be held liable for breaches of privacy.

Government obligation. Government is required to treat all citizens fairly and to observe all rules regarding citizenship.

Article VII Other issues

Oath of office. The senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, including officers of the department of State, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution, and must make this pledge in a public place: "I do solemnly affirm that I will, to the best of my ability, preserve, protect and defend the Constitution of the United States."

No religious tests. No religious test shall ever be required as a qualification to any office or public trust under the United States.

Militia versus national military. The militia will be limited to defending the homeland, maintaining domestic peace, and responding to disasters. The national military will be limited to actions overseas and in other countries, such as protecting vital interests, securing sea lanes and airspace, assisting allies, and, if necessary, prosecuting wars. The militia will be led by the president; the national military will be led by the head of State.
 

New states. New states may be admitted by Congress into this union; but no new state shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress.

Territories. Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.

Amendments. The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no state, without its consent, shall be deprived of its equal suffrage in the senate.

Supreme law. This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the Constitution or laws of any state to the contrary notwithstanding.

Ratification. The ratification of the conventions of thirty-five of the fifty states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same. Upon ratification of this Constitution, the Senate may select the first fifty foreign policy advisors regardless of age, but after that, shall choose candidates who are younger than forty years of age.

 

                                  ------ this is the end of the proposed constitution -------

 

 

Purpose

The purpose is to propose substantive reform of the American political system.

History

This is an independent effort launched over the Internet.

Originating Entities

Originating entities? Me,  tom sulcer.

Funding

Funding? None.

Participant Selection

People are welcome.

Deliberation, Decisions, and Public Interaction

There has been some discussion on the Internet in Google knols, and other wikipedia-like websites.

Influence, Outcomes, and Effects

So far, this project has had no influence whatsoever.

Analysis and Criticism

Problems with the current United States Constitution

Numerous scholars have pointed out serious flaws in the Constitution, including Sanford Levinson, Andrew Napolitano, Lawrence Lessig and Larry Sabato. Here's a list of flaws based on their books plus I've added some of my own:

(1) Awkward transition between presidents; from election day to the inauguration of the next president, there are effectively two presidents -- one in office, one awaiting office, and this allows confusion.

(2) Under-representation of voters from populous states in the Senate.

(3) DC voters lack representation.

(4) Original Constitution fails to include a right of privacy. Check the LittleBigBooks -- you won't find it in there.

(5) Possibility of a military dictatorship should a significant terrorist attack happen such as a catastrophic attack on Congress.

(6) The Electoral college system is cumbersome and confusing.

(7) Popular election of senators. Here's a situation in which the original constitution was right (letting state governments choose Senators) but it was changed by an amendment. It's important for state governments to choose Senators to give state governments a voice in the national government.

(8) Inability to get rid of an incompetent president quickly. Examples: Wilson (suffered from an economic malady); possibly Roosevelt in last years in office; Bush II (clearly incompetent choice to attack Iraq).

(9) Life tenure for unelected Supreme Court judges. Some suggest 15 or 18 year terms would be better.

(10) The Ninth amendment has been seriously ignored.

(11) Judiciary is ill-suited to act as a check on the legislature through the power of judicial review. British constitutional scholar Adam Tomkins identifies a prime weakness in America's constitution -- that the prime role of checking government is supposedly handled by the judiciary, and not the legislature. He thinks the judiciary is ill-suited to rein in government ministers since it must wait for a court case to bubble up before it can act; plus, judges are not popularly elected and are therefore not accountable to the public. He thinks Britain's system -- where the Prime Minister must defend choices each week in a 30 minute meeting before Parliament -- is superior to America's. I agree.

(12) Flawed foreign policy architecture.Too much power is held by one overburdened official (the president) who has both domestic and foreign policy duties as well as being the head of a political party. America's foreign policy, as a result, can only be as good as the president. An incompetent president or one distracted with domestic matters can cause America's foreign policy to be mindless and erratic. Further, since administrations must change every eight years, sometimes after four, it's hard for America to stick to a comprehensive plan. Reviewing the past 50 years, experts note mistakes (Vietnam, Iraq) along with successes (Cold War) which suggests America's foreign policy is average at best.

(13) Inadequate method of preventing terrorism. The constitution needs to address the issue of anonymous movement in public -- that is, how can we identify movement while preserving privacy?

(14) Unitary executive theory. Power has shifted to the presidency where it is dangerously concentrated in one office. The executive can essentially legislate by using a vast bureaucracy of agencies that are largely unaccountable to the public and hidden from debate. Presidents have begun issuing "signing statements" -- a fairly recent innovation -- when they describe how they intend to interpret a law made by Congress, which effectively puts an executive twist on a law. The most egregious sign of concentrated executive power is, of course, the power to start wars without Congressional approval (Vietnam, Grenada, Panama, Iraq (there was a token vote)). The Constitution explicitly gave the war-making power to Congress. So why does the president have this power?

(15) Citizenship is vague. At present, citizenship is a legal relation denoting a member of the United States which is earned only by birthright or achieved by naturalization. But citizenship should be much more than a "right to work" label, but it should be an active and chosen relation between a person and the state which entails specific privileges (rights to legal protection, fairness, due process, voting) and responsibilities (possible military service, voting, jury duty, participating in politics at the local level.) Since almost all Americans are apolitical beings disconnected in most ways from politics other than a rudimentary way (ie, they vote for president once every four years, and see that as "participating"), what happens is that all sorts of forces can insert themselves into this democratic vacuum and corrupt politics. In my view, fixing citizenship should be a huge priority for political reform.

Constitutional problems with the current foreign policy architecture

I have substantial respect for the original United States constitution with its brilliant design of checks and balances, devised by James Madison and encouraged by prominent Framers such as John Adams. The original three-part structure: legislature, executive, judiciary -- with each branch operating in a different sphere of influence but able to check the power over the others -- was a brilliant way to prevent a possible future tyrant or dangerous faction from dominating politics. It worked marvelously over two hundred years, and it was particularly well suited for when the United States was a young nation, geographically isolated essentially from acquisitive rival powers by large oceans which took months to cross. Foreign policy was important, but not that important; the arrangement meant that foreign policy could be one of many tasks of the competing branches. Unified intelligent long-range foreign policy was not needed then. Different branches exerted foreign policy control, primarily the executive branch, but with substantial input from Congress (House ==> power to declare war; Senate ==> power to approve treaties) and the Supreme Court (could rule on the constitutionality of treaties.) Foreign policy was one of many tasks of the presidency.

But the situation in the 21st century has changed considerably. The oceans have essentially shrunk as barriers, given rapid advances in telecommunications, travel, military warfare. A transcontinental missile can be fired from a foreign country and decimate a city in less than an hour. Terrorism has become a more dangerous, nagging, and unsolved threat. There are rival powers who could pose serious military challenges to the nation to the extent that it is becoming much more important to have intelligent foreign policy.

The current constitution thwarts foreign policy for numerous reasons but the biggest flaw is this: there is not one single branch of government with exclusive control over foreign policy making. Rather, it is a divided responsibility. The chief actor -- the president -- has foreign policy not as a sole responsibility but as one of many competing tasks, making it difficult for him or her to focus on international matters, and he or she is subject to competing distractions. A riveting domestic scandal (such as what happened to Nixon during Watergate, Clinton during the controversy involving a sexual tryst, or Reagan during Iran Contra) means the chief executive is less able to focus fully on diplomatic matters. Further, the president may be out of office every four years, and will be out after every eight; this constant influx of new presidents makes it hard for the nation to stick to plans which take longer than four or eight years to carry out. Last, the people selecting the president -- the electorate -- are not in a good position to judge whether a given candidate would be the best architect of foreign policy; rather, the public votes for persons based on many criteria, including domestic concerns, pocketbook issues, and so forth as well as supposed foreign policy experience, and as a result the public may elect a president who appeals to their sensibilities on other issues but who is extremely lacking in military experience, diplomatic savvy, understanding of the world situation, and so forth. Here are a few names of presidents within the past five or so decades which have been criticized rather extensively by foreign policy analysts as being less than competent at foreign policy: Kennedy (Bay of Pigs episode), Johnson (Vietnam War), Carter (Middle East & Iran problems), and particularly Bush II (alienating allies, Iraq War II, etc.) The public elected these men.

The result of these many variables is that the United States has had a mediocre record in foreign policy -- some successes, some failures -- with the apparent overriding variable being how well a given president performs at foreign policy. The record is mixed. Some recent presidents handled it quite well (Nixon, Reagan, Clinton) but others were embarrassingly incompetent (Bush II, Carter). There have been wonderful successes, particularly the Cold War ending without nuclear bombs being exploded, and some disastrous failures, particularly the decade-long Vietnam War with 55,000 Americans killed and huge treasure wasted for no apparent purpose whatsoever. But foreign policy experts have long noted abnormalities with the process itself: Congress was supposed to have the power of declaring war, but then why had the nation become involved in numerous undeclared wars such as Korea, Vietnam, Grenada, etc? I argue that in the nuclear age, with pressing problems, that foreign policy can no longer have an average success rate, or be hit-or-miss, or depend on whether the public is sharp enough to select a president skilled in world affairs; rather, the structure of government, based on the constitution itself, is the problem, and needs fixing.

If one examines history, one will see that there have been few states which have consistently been adept at foreign policy. There have been savvy monarchs (Louis XIV of France, Charlemagne, Peter the Great of Russia, Napoleon, Caesar) but monarchy has (as is well known) the perennial problem of succession, so a less astute heir will undo the gains made by the monarch. The few instances when a political entity got foreign policy right -- consistently -- over time -- was marked by a structure in which an aristocratic body, which had substantial collective experience and usually led by virtuous leaders -- guided policy over decades, even centuries. The two (arguably) most prominent examples from history are the early Roman Republic, and later Britain in the 19th century. Tocqueville, writing in Democracy in America, noted that an aristocratic body was the ideal structure for foreign policy because it was like a "wise man who never dies." Younger members learned from older ones, and became experienced and wise by devoting many years studying the world, seeing what happens. Older members die, but the group as a whole preserves an institutional memory, and has the capability to make and stick to long-range plans. It has the ability to keep promises and commitments, to shield friends, to punish enemies. The Roman Republic rarely fought two wars at once, enabling them to plan intelligently how to play adversaries against each other. In contrast, look at the United States on the eve of World War II -- having to fight not one enemy (Germany) but a second one (Japan). While Rome was respected throughout the Mediterranean War, the United States is often criticized, particularly in the Arab World, with misguided policies often alternating from supporting tyrants (since they're easier to deal with) and alienating vast swaths of the Middle East and elsewhere.

The proposed architecture of government consolidates foreign policy authority in one branch, with a hundred advisers acquiring experience and savvy from long periods of service (hopefully), and being in an excellent position to choose the best leader -- the head of State -- to execute foreign policy. In addition, I've tied citizenship to military participation such that persons who choose to become citizens have chosen, essentially, to serve in the military if they are summoned. This means that government does not have to guess whether people will choose to support a war or not; rather, government knows that it can count on people if they are needed. And this means, somewhat counter-intuitively, that the nation will be much less likely to be involved in wars since the nation will both be, and appear to be, a tougher international opponent. This branch, so structured, in my view, solves the problem of foreign policy for the reasons I've outlined. But creating it, of course, brings in additional problems, specifically, how shall we keep this more powerful and unified branch, itself, under control? How can tyranny be prevented? Basically, many of the checks and balances in the proposed constitution have been built to keep government in balance, to prevent tyranny.

The overall split in government, in the new arrangement, is in two parts: domestic government and national government. Domestic government (legislature, executive, judiciary) is somewhat like before, except that I have made it stronger and more unified for the purpose of keeping the national government (foreign policy advisers, head of State, military court) under control. The overall logic is that the domestic government controls the national government by appointments, budgets, hiring and firing ability, reporting requirements. At the same time, to protect the national government from a clean sweep of its members by a possibly overzealous domestic government, I have put controls and brakes to prevent too many officers from being purged out at any one time which might have the adverse side-effect of undermining long term planning and wiping out the institution's collective experience. Further, I have divided the military, so that the president (head of domestic government) controls domestic forces or militia, while the head of State (head of national government) controls forces which may have to fight overseas; the purpose of this division is to prevent military coups and to keep the military under civilian control.

To balance out the power of national government, I have strengthened domestic government by having the president chosen from among the Senate by the House of Representatives. This brings cohesion within the legislature and executive authority. It is essentially a parliamentary arrangement, replacing a two-party system with a multi-party system (although there will undoubtedly be two major parties), similar in some respects to Britain's, and there have been numerous examples throughout the world of having it work quite effectively. It allows domestic government to be more decisive; in the current arrangement, a president from one party may thwart the aims of a legislature dominated by the rival party, and gridlock has resulted.

At the same time, there are numerous forces keeping domestic government, itself, under control, namely (1) the impact of other well-developed prosperous nations (2) world governing bodies such as the UN and WTO (3) pared down economic responsibility -- much of the burden of economic regulation has been shifted away from the federal government to individual states as part of a restored federalism arrangement (4) citizens at the local level becoming more engaged with their congresspersons through regular reporting, meetings, required voting, and so forth. I have kept or restored several original checks within domestic government: (1) bicameral legislature with House and Senate balancing & checking each other (House ==> reflecting popular mood, turnover every two years, fresh faces, control over initiating budget; Senate ==> longer terms, more experience but fewer numbers.) (2) Supreme Court retaining the power of judicial review, that is, being able to overturn acts of the legislature which it sees as unconstitutional (3) State governments will again have control over appointing their US Senators, restoring the original constitutional arrangement. Overall, I feel the proposed arrangement is vastly improved, although sometimes I wonder if there have been enough checks put on the US Senate (I continue thinking about this).

Overall, this government architecture, in my view, will be substantially superior in remedying numerous defects of the current constitution while preserving its best elements.

Secondary Sources

Books, lectures, newspaper articles.

External Links

 

Notes