The Constitution’s Structural Limitations On Power Should Be the Focus of the Bill of Rights

Bill of Rights

Ever since the Warren era of expansive individual rights jurisprudence, leading to the Court’s substantive due process jurisprudence culminating in Roe v. Wade, jurists, as well as the public at large, have grappled with the issue of judicial activism in the individual rights area. At the same time, by the time of the Warren Court, constitutional law had evolved to the point of denying the courts any meaningful role in enforcing the limited government principles incorporated in the Constitution. This essay, recognizing the continuing controversy over the Court’s individual rights jurisprudence, attempts to reconcile these two different strains in constitutional development in a proposed limited government model of the Bill of Rights.

The vitriolic reaction to the fairly recent injection of limited government principles into the nation’s political dialogue demonstrates how marginalized the notion of limited government has become since the 1930s. Furthermore, the widespread conviction that the Supreme Court would never strike down the Affordable Care Act on limited government principles likewise shows how unaccustomed the legal and political systems have become to judicial enforcement of those principles.[1] However, not only are limited government principles among the most important aspects of the U.S. Constitution, but they are key to understanding the provisions in the Bill of Rights regarding individual liberty. Indeed, the decline of limited government principles during the New Deal era, combined with the rise of an individual autonomy jurisprudence during the Warren Court era, has distorted the originally-intended meaning of the Bill of Rights.

Under the leadership of Chief Justice Warren, the Court adopted an individual rights jurisprudence that interpreted the Bill of Rights as existing for the purpose of achieving a certain vision of individual autonomy. This view gained a footing during the New Deal period, when the Court retreated from enforcing the limited government structural provisions of the Constitution, such as federalism and separation of powers, while at the same time heightening its scrutiny of substantive individual rights, such as those contained in the Bill of Rights.[2] But this shift in the Court’s orientation cast the Bill of Rights as concerned exclusively with individual autonomy, rather than with providing structural limitations on government power, thereby separating the Bill from the structural orientation of the Constitution as a whole. This modern view sees individual rights in isolation, as if the Constitution was primarily focused on protecting individual autonomy, not on creating a frame of government.

Under a limited government model, the Bill of Rights can be understood within the context of a larger goal—namely, ensuring the maintenance of limited government within the constitutional scheme. As the primary advocates for the Bill of Rights, the Anti-Federalists sought to achieve not particular substantive protections of a finite list of specific individual rights, but rather an assurance that the new federal government would indeed be a government of limited powers.[3] The Anti-Federalists feared that the original Constitution had not adequately prevented the new government from overstepping its allotted powers. To further secure a limited government, the Bill of Rights specified certain areas in which the government expressly had no power to act. Whereas the rest of the constitutional scheme set out structural provisions for the overall maintenance of limited government, the Bill of Rights articulated specific substantive areas in which the principle of limited government was to prevail. Nonetheless, the impetus for the Bill of Rights arose from the same limited government concerns that were incorporated in the original Constitution, and in this way the Bill of Rights is consistent with the original Constitution.

As James Madison put it, a Bill of Rights was added “for greater caution” to ensure a limited government.[4] When he introduced his proposal for a Bill of Rights in the First Congress in June of 1789, Madison explained that the purpose of this Bill was “to limit and qualify the powers of government.”[5] It would provide a second limitation on the power of government. The first limitation arose from the enumerated powers doctrine, prohibited the federal government from exercising any power not explicitly granted to it by the Constitution. But the Bill of Rights placed limits on even those enumerated powers, forbidding the federal government from using its delegated powers to encroach on areas outlined by the Bill of Rights.[6] By carving out particular areas that might possibly be regulated by the government under the Necessary and Proper Clause, the Bill of Rights sets out more specific standards enabling the people to better judge whether government had exceeded its power. [7]

What is often ignored about the Bill of Rights is that it was drafted and ratified with a view toward integrating it into the overall scheme of the original Constitution, which was structural. And the most important structural aspects of the Constitution were those aimed at ensuring limited government. As a whole, the Constitution is primarily one of “powers, structures and procedures, not of values.”[8]

According to Akhil Amar, the Bill of Rights is each “part of a single coherent constitution; and are reflective of a deep design; aimed at limiting government power.”[9] But if consistent with the constitutional scheme and its emphasis on structure, then the Bill of Rights should not be viewed in terms of individual autonomy, but in terms of employing the language of rights to limit government power. As Gary Lawson argues, the meaning of the Bill of Rights lies primarily in the structure and history of the original Constitution, rather than in the specific wording of each of the amendments.[10]

In The Federalist, Hamilton makes a clear distinction between a free government and a republican government.[11] Whereas free government focuses on securing specified individual rights, republican government tries to achieve a more general political freedom as a means to securing individual freedom.[12] In choosing the latter, the framers saw the structure of government as the best protection of individual rights. For this reason, the Constitution’s primary focus is not on providing a finite list of individual rights, but on creating structural features that protect against systemic government abuses and overreaching.[13]

But the Bill of Rights is more than just a way to generally limit the power of the federal government; the rights protected by the Bill of Rights were those that were most effective in empowering people to control and limit their government. Not only did the Bill of Rights create limitations on government, but it specifically identified areas of freedom which, when exercised, could further help to limit government. To the framers, the only real way to prevent government from violating the liberty of its citizens was to give those citizens the capacity to control government.[14] For instance, the Anti-Federalists often contended that freedom of speech and press were invaluable bulwarks against tyranny, and that exercise of those rights was necessary to control and limit government.[15] Freedoms of speech and press were seen as the essence of free government, through which people could be free to limit government by political means.[16]

Unquestionably, the framers of the Bill of Rights were very much concerned about individual freedom and natural rights. Indeed, this concern had inspired the Declaration of Independence. There is no historical dispute as to the desire of the framers for a constitutional system that protected liberty, and there is no dispute that the Bill of Rights served the goal of protecting liberty. However, the Bill of Rights tried to secure that goal through a means other than strictly a judicial protection of certain specific rights that in turn defined a particular notion of individual autonomy. Instead, limited government became the means by which liberty would be protected.

The framing generation did not know how to go about the goal of using specific constitutional provisions to protect natural rights or specific understandings of individual autonomy. They did not have a sufficiently clear idea of the parameters and scope of those individual rights. To the framers, natural or individual rights were vague and highly abstract.[17] As Philip Hamburger writes, theories of natural rights were not only so ambiguous and imprecise as to prevent broad consensus, but in fact were the subject of “substantial differences” among eighteenth-century Americans.[18] Moreover, the framers were reluctant to give the judiciary the kind of unbounded power it would need to define and enforce individual rights, so they crafted a Bill that focused not on the substance of each right but on limiting the power of government in certain areas. For instance, Madison drafted the First Amendment in the hard language of denials of government power, not in more general statements aimed at defining the nature and value of particular individual rights.[19] This language was in stark contrast to the softer kind of language in state constitutions, which focused on the moral value of liberty and individual rights and which were phrased more as obligations than as prohibitions.[20]

Furthermore, if the Bill of Rights was meant to protect fundamental or natural rights, it is curious as to why those protections were not granted vis-à-vis the states. When the Framers did seek to protect a right or freedom on its own accord, rather than as a means of limiting power, they did so in a manner that would protect that right or freedom from all governments, including state governments. The Contract Clause, for instance, specifically applies to both the federal and state governments.

Not only was the Bill of Rights not applied to the states, but the constitutional generation tolerated significant state regulation of those rights, thus further undermining the notion that the Bill served primarily to protect individual autonomy. For instance, late eighteenth century Americans accepted highly restrictive state laws on speech and press.[21]

The Ninth and Tenth Amendments in particular reflect the focus of the entire Bill of Rights as being limitations on the power of the federal government. The Tenth Amendment incorporated the rule of enumerated power, with all nondelegated power reserved to the states, whereas the Ninth Amendment limited the interpretation of the federal powers that were enumerated. As James Madison explained, the Tenth Amendment prohibited the federal government from exercising any source of power not specified within the Constitution itself, and the Ninth Amendment prohibited any interpretations of enumerated federal powers that would unduly expand federal power.[22] According to Kurt Lash, the Ninth and Tenth Amendments reflected such a universal desire for limited government that they faced very little opposition.[23]

The rise of the individual autonomy model of the Bill of Rights occurred in the wake of the New Deal demise of limited government principles. During the New Deal period, the notion of protecting liberty through the maintenance of limited and divided government gave way to the desire to ensure economic security through a powerful and activist central government. The framers’ view of political freedom requiring a limited government was largely abandoned by the New Deal reformers, who called upon an activist federal government to combat the problems of the Great Depression. Although the framers had sought political freedom by setting up structural features to prevent the concentration of government power, the New Dealers believed they could preserve liberty strictly through the judiciary’s enforcement of specified individual freedoms.[24]

However, this abandonment of limited government provisions undercut a fundamental protection of liberty. To compensate for this loss of constitutional protection, the Court made a compromise: although it would retreat from reviewing structural issues, it would intensify its review of substantive individual rights issues. Larry Kramer calls this the New Deal “settlement.”[25]

The Warren Court era solidified the transformation in constitutional approaches to the preservation of liberty—from relying on the limited government provisions of the Constitution to focusing almost exclusively on the judicial enforcement of substantive individual rights.[26] In doing so, the Warren and Burger Courts effected a constitutional revolution in many areas of substantive individual rights. But this transformation essentially viewed the protection of individual rights as the primary purpose of constitutional law. It misinterpreted the nature of the Bill of Rights and how the Constitution went about protecting liberty. It looked on the Bill of Rights as an almost unlimited grant of power to the judiciary to enforce its view of individual autonomy, while at the same time attempting to reconcile individual liberty with a virtually unlimited federal government.

In seeking to protect liberty exclusively through judicial enforcement of specific individual substantive rights, the Court ceased protecting the kind of governmental structures designed to guard individual liberty. But when that happens, only the judiciary is left to act as the guardian of liberty—and it does so by exercising great power to define and enforce an array of specific individual substantive rights.


[1]See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012), where five Justices affirmed the limited government principles of the Constitution, specifically that Congress’ commerce power is limited, even though the Court upheld the Affordable Care Act based on Congress’ taxing power, and where the Court enforced federalism principles in striking down Congress’ attempted expansion of Medicaid.

[2]See U.S. v. Caroline Products, 304 U.S. 144, 152 n.4 (1938). For a discussion of the Court’s New Deal jurisprudence, see Patrick M. Garry, An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court102-08 (2008).

[3]See Patrick M. Garry, Liberty Through Limits: The Bill of Rights as Limited Government Provisions, 62 SMU L. Rev. 1745 (2009).

[4] James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789), in 12 The Papers of James Madison 196, 202 (Charles F. Hobson and Robert A. Rutland eds., 1979).

[5] James Madison, Speech to House of Representatives (June 8, 1789), in Creating the Bill of Rights: The Documentary Record from the First Federal Congress 81 (Helen Veit et al. eds., 1991).

[6]See Michael Dorf, Incidental Burdens on Fundamental Rights, 109 Harv. L. Rev. 1175, 1189 (1996) (arguing that by “juxtaposing affirmative powers with negative limits, the Constitution’s architecture assumed that, even when the government pursues a permissible goal, the government might sometimes violate individual rights—and thus, the negative limits prohibit otherwise valid exercises of power”).

[7] Michael McConnell, Natural Rights and the Ninth Amendment, 5 N.Y.U. J.L. & Liberty 1,18 (2010); Jack Rakove, Original Meanings, 336 (1997).

[8] Robert Delahunty, 1 Univ. of St. Thomas Journal of Public Law and Policy, 1, 68 (2007). In The Federalist No. 38, James Madison argued that the Bill of Rights “ought to be declaratory, not of the personal rights of individuals, but of the rights reserved to the states in their political capacity.” The Federalist No. 38, at 235 (James Madison) (Clinton Rossiter, ed., 1961). Likewise, in The Federalist No. 84, Alexander Hamilton argued that “one object of the Bill of Rights is to declare and specify the political privileges of the citizens in the structure and administration of the government.” Id. at 515 (Alexander Hamilton).

[9] Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 814 (1999).

[10] Gary Lawson, A Truism with Attitude: The Tenth Amendment in Constitutional Context, 83 Notre Dame L. Rev. 469, 471 (2008) (arguing that the Bill of Rights was effectively redundant because federal laws abridging rights contained in the Bill of Rights had not been delegated to the federal government).

[11]See, e.g., The Federalist Nos. 9, 51 (A. Hamilton) (Jacob E. Cooke ed., 1961) (referencing the distinction between free governments and republican governments).

[12] Bradford P. Wilson, Separation of Powers and Judicial Review in Separation of Powers and Good Government 68 (Bradford P. Wilson & Peter W. Schramm eds,, 1994).

[13] Gary Lawson, Prolegomenon to Any Future Administrative Law Course: Separation of Powers and the Transcendental Deduction, 49 St. Louis U. L.J. 885 (2005).

[14] Thomas McAffee, Restoring the Lost World of Classical Legal Thought, 75 U. of Cin. L. Rev. 1499, 1572 (2007).

[15]See Letters of Centinel No. 2, in 2 The Complete Anti-Federalist 143-144 (Herbert J. Storing ed. 1981); Speech of Patrick Henry in Virginia Ratifying Convention in 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 449 (Jonathan Elliott ed., 2d Ed. 1836).

[16]See James Madison, Report on the Virginia Resolutions (January 1800, reprinted in 5 The Founders’ Constitution 145 (Philip B. Kurland and Ralph Lerner eds., 1987).

[17] John Phillip Reid, Constitutional History of the American Revolution 10-11 (1986).

[18] Philip Hamburger, Natural Rights, Natural Law and American Constitutions, 102 Yale L.J. 907, 926, 955 (1993).

[19] Thomas McAffee, Inalienable Rights, Legal Enforceability, and American Constitutions, 36 Wake Forest L. Rev. 747, 777 (2001). Indeed, despite all the First Amendment case law, for instance, there is still much disagreement over the scope and application of individual autonomy boundaries within the Free Speech Clause, fulfilling the Framers’ fears that speech freedoms could not be adequately defined or expressed within one clause of the Constitution.

[20]Id.

[21] Hamburger, Natural Rights, 102 Yale L. J. at 911.

[22] James Madison, Speech in Congress Opposing the National Bank (February 2, 1791), in James Madison, Writings 480, 481 (Jack Rakove ed., 1999).

[23] Kurt Lash, James Madison’s Celebrated Report of 1800, 74 Geo. Wash. L. Rev. 165, 171 (1006).

[24] M.J.C. Vila, Constitutionalism and the Separation of Powers 14 (1969).

[25] Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 219-20 (2004). Because of this “settlement,” federalism became a dead doctrine until the Rehnquist Court. David Walker, The Rebirth of Federalism, 96 (1995).

[26] Daryl Levinson, Empire-Building Government in Constitutional Law, 118 Harv. L. Rev. 915, 971 (2005).

Patrick M. Garry

Patrick M. Garry is Professor of Law at the University of South Dakota School of Law. He is the author, most recently, of Limited Government and the Bill of Rights. His 2009 book An Entrenched Legacy: How the New Deal Constitutional Revolution Continues to Shape the Role of the Supreme Court was named as a finalist for the 2009 Henry Paolucci/Walter Bagehot Book Award.

About the Author

Responses

Natural Rights and the Limited Government Model of the Constitution: A Response to Patrick Garry

There is much to commend Professor Garry’s essay. He is eminently correct in saying that the Constitution contemplated a limited government. Whether it adhered to a “limited government model” is a different issue. What is more than curious, however, is Professor Garry’s statement that the “the overall scheme of the original Constitution” is primarily concerned with…

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Limited Government and Individual Autonomy

Patrick Garry’s essay “The Constitution’s Structural Limits on Power Should Be the Focus of the Bill of Rights” contains many valuable insights. In particular, it re-affirms the proposition – lost for many years but perhaps gaining some new currency – that the so-called “structural” provisions of the Constitution are, and were intended to be, not…

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The Constitution Created an Expansive, not a Strictly Limited Federal Government

The revolution of 1787-1791 overthrew a constitution that strictly limited the federal government in favor of one with general welfare and necessary and proper clauses that allowed the federal government to absorb state powers over time. It also tossed out the dogma of separation of powers in favor of a more sophisticated balance of powers.…

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Patrick Garry’s Reply to Responders

I am honored to be a part of this debate on the Bill of Rights with such accomplished and knowledgeable scholars. The three responding essays by Dr. Bowling, Professor Erler and Professor Ramsey provide keen insights on constitutional law and history. Indeed, the historical discussions in the three essays are more detailed than is my…

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Comments

  1. KLDimond says

    “The Tenth Amendment incorporated the rule of enumerated power, with all nondelegated power reserved to the states, …”

    ‘…or to the People,’ continues the Amendment. I don’t think we can just ignore that aspect of what is written.

    To wit, I’m not sure that both provisions weren’t intended. The early courts also tolerated slavery and a variety of other abominations, along with the perhaps acceptable restrictions you mentioned. This doesn’t mean that they weren’t simply unclear on the (admittedly their own) concept, or corrupt, or just trying to keep a particularly enthusiastic ideal of freedom from driving the new country back into vulnerable fragments. We can be assured, I think, that all these motivations existed to one degree or another.

    Speaking of unclear on the concept, how unclear did Congress have to be to pass the Alien and Sedition Acts? Yah.

    I think we do well to hark back to the idea that each and all of those framers wanted freedom. When combined with the concept of equality before law (no elites), that would mean individual freedom for all as well as the structural guarantees that I think is the brilliance of what you’ve written.

    Thanks for making me think!

  2. Ron Johnson says

    I am not an academic, but I sense a fresh breeze of constitutional analysis: a focus on constitutional structure. Michael Greve’s wonderful “The Upside-Down Constitution” first woke me from my dozing, and now this wonderful article that promises to change the terms of the debate. I can only hope that this fresh academic interest will eventually lead to judicial interest in the topic.

  3. gabe says

    I, too, thoroughly enjoyed Greve’s book and garnered much from it – especially an appreciation of the “structural intent.”
    That being said, it must be asked: “to what purpose this limited government?” if not to assure a free people.
    Surely, one can argue that the rationale of this structural framework was that the founders recognized that it was the best available means of a) promoting liberty and b) forestalling tyranny.
    Structure and rights approaches are not contradictory – they complement each other. Indeed, it can be argued that rationally they can not exist w/o each other.

    take care
    gabe

  4. Jeremy Klein says

    To the extent that legislators, executives, the SCOTUS, the state governments, and the citizens of the United States were party to this ‘New Deal settlement’, they were traitors and fools. Frankly the military should have stepped in at that point, honoring their oath to protect the Constitution from all enemies foreign and domestic, for surely the government had become a domestic enemy of the Constitution.
    To the extent they sought a more powerful Fed gov’t to ensure economic security, they were likewise fools. Economists may argue back and forth, but it’s likely that all the New Deal and any other anti-Great-Depression agencies and regs did was to prolong what should have been a recession and turn it into a depression. Plus the recession was most likely caused by excessive gov’t regulation in the economy in the first place.
    To the extent that We the People continue to tolerate our grossly unConstitutional Fed gov’t we are likewise fools and traitors. This does not end well.

  5. Scott Amorian says

    This was a delightful series of essays. The operators of Liberty Law have done us a great service by running this website that not only gives excellent scholars a chance to exchange ideas with each other, but also gives the general public access to the thoughts of these persons. Most sites that address politics cannot be compared to the Liberty Law site. History by itself can sometimes be dry reading. The essay-response format sweetens the lesson a bit by adding a little extra dramatic context. The civility with which disagreements are made speaks to the good character of the authors.

    One shortcoming of the essay format is the lack of depth in some of the discussion. Garry discussed a number of points in his response to the responders that were not so much disagreements with the responders as they were discussions of how his original essay had to cut short some rationale for positions. I suspect that much of the apparent disagreements had more to do with the method of communication of ideas, than with the ideas of the authors themselves.

    Even with that recognized shortcoming, I feel it was better to read the essays and get what I could from them. I do not believe that lengthening the essays would have made the discussion better because I, like others with jobs and families, do not have unlimited time to read at great length.

    My main takeaways from the essays is an awareness of the direction of activism in the intellectual community along with a better idea of the source and character of American progressivism and a firmer grasp of the role of the constructions in the Constitution that tend to create progressivism.

    If I would find anything to critique from the authors, it would be the tendency to address high concepts, such as natural rights and desired theoretical interpretations of law, with limited practical context. I am a software engineer by education and trade. I took a few law, history and political science classes in college. Most of what I know today of such things is self taught. This makes it awkward for me to offer meaningful, and I would hope courteous and respectful, critiques on the notable scholars who wrote the essays. To say I am way out of my league is an understatement when it comes to knowledge of history and legal principles. On the other hand I spend my days working with highly complex systems, trying to understand them, how they work, why the don’t work, and what needs to be done to fix them. As a veteran systems analyst I can bring a few things to the table in this discussion.

    Many of the points in the essays addressed how the author believes a writing should be interpreted by the Court. This kind of discussion does not address in depth the fact that the Court does not interpret the Constitution in a rational way, or the reasons why it does not. The focus of the authors is more on theory than pragmatics.

    The Court, obviously, is biased by the process of its appointment. The President appoints. The Senate approves. This biases the Court in favor of the President and Congress. Both want more power. The Presidents tend to appoint Justices who will allow the President more power. The Senate tends to approve only appointees who will allow Congress more power. Over time this creates bias in the Court to give the President and Congress more power. The effects of biased rulings over time tend to create an accumulative effect of negating the Constitution in favor of more power for the President and Congress. Many of us know that. Some of the discussions in the essays seem to suggest that incorrect theory of interpretation of the Constitution are a cause of governmental excess, and that correct understanding of the Constitution will at least help correct that problem. I don’t see that. I see a system of appointment that pretty much guarantees a slow dissolving of the Constitution. As Madison pointed out in his notes on the Convention “Bad principles in a Govt. tho slow are sure in their operation and will gradually destroy it.” Problems like this bias is what he was talking about. Until the method of appointment of Justices is reformed, the excesses will continue no matter what we consider the “right” way of interpreting the Constitution.

    Bowling mentioned the problem of separation of powers vs balance of powers. Because of the method of appointment, the Court is not truly separate. It is to some degree an extension of the executive and legislature. A member of Congress can go directly from Congress to the Presidency. With the current President we see an ideological extremist with no substantive qualifications to be President get elected to office, and we see that same President appoint a member of his own staff, a person with no judicial experience but extremist views similar to the President, to the Court.

    The Framers designed the new government along the lines of a federal system of government with the states as principles, the national government the agency, and the Constitution as the contract between the principles and their agent. Upon the Constitution being put into operation, the political parties took over the role of principle. Over time the parties have become more the principles overseeing the operation of government and the states have become more like districts for the parties. Instead of a federal system with power safely distributed amongst the states, we have a party system with power centralized in the hands of a few; the oligarchy which is the leadership of the two dominant parties. The oligarchy directs government, not just at the federal level, but the state and local levels as well. The power of the oligarchy negates not only the separation of powers of the three primary branches of government, but also the separation of the “fourth” branch of government, which is the states when viewed in the context of their Article V power to amend the Constitution.

    A number of movements are afoot to try to bring about change in government through a Convention of States. What the followers of these movements do not comprehend is that the same party oligarchy that has a great deal of control over the federal government also has a great deal of control of government at the state level. The COS movement folks do not recognize that they are asking the party oligarchy to act rationally at the state level because it will not act rationally at the national level; obviously an unworkable solution.

    Correct me if I am mistaken about this, (my knowledge of politics in 18th century Britain is wikipedia thin) but were these not the kinds of things we were trying to get rid of in 1776? The British government was run by its own partisan oligarchy with a monarch as head of state. The Declaration properly held the British head of state accountable, but it was actually more the British partisan oligarchy in their legislature that was driving so much of the abuse of the colonists. In the British government the members of Parliament were also holders of the other principle offices of government. Were we not trying to get rid of that system because it was inherently corrupt?

    Yet today we find ourselves practicing those same “bad principle” in our government with the same general results. We have massive intrusions into our personal rights. We cannot sneeze with being taxed (it is hidden in the cost of the tissue) and regulated (go ahead and bet me I that cannot find federal regulations addressing public sneezing and the contents of tissue) well beyond reason.

    If we have constructs of government that must inevitably produce disaster, why are we not working at fixing the problems by addressing and correcting those constructs? Why are we, instead, focusing on trying to gently nudge an inherently irrational system to behave rationally?

    Most efforts at deep Constitutional reform try to address and compensate for the symptoms. In the engineering world we call these quick and dirty fixes. Good engineers hate quick and dirty fixes because they temporarily fix a problem over the short run, but they produce nasty side effects that require other fixes that are more expensive to maintain over the long run. A system full of quick and dirty fixes is much harder to repair than it would be if it were fixed correctly in the first place. Mark Levin, the Goldwater Institute, and a number of other folks advocate programs of what are ultimately quick and dirty fixes and workarounds that do not address these core sources of injustice. They present to the public the ominous threat of endless patchwork reforms to the Constitution. They fuel the fears of a runaway COS. A more difficult, but more proper repair of our form of government is necessary.

    The technical aspects of repairing bugs in the core of a complex and critical system are difficult, which is probably why no one has attempted to fix them yet. But they are not (yet) beyond repair. The main issue with this kind of technical repair is not our ability to repair the things that are broken, but the political will of the decision makers (in this case the voters) to give the go-ahead to make the repairs. For that to happen there must be credible assurances that the repair is necessary, that it will fix the problem, that controls will be in place so that the desired repair and only the desired repair will be made, and credible expectations must be laid out regarding costs and inconveniences while the repair is being made.

    While the nuances of interpretation are important theory, they are not relevant in practice at this time. The system that adjudicates, executes and legislates is broken. No matter what the theoretically correct interpretations of the Constitution may be, the existing system will not work with theory correctly. By its design, it cannot do so.

    What I am looking for in this and similar discussions is a better characterization of the problem, so I can get an idea of the tools and techniques needed to make the repairs. The general character of the structural repairs are fairly obvious, I would think. The separation of powers must be reformed and reinforced. The principality of the Constitution must be shifted from the political parties to the states.

    The Justice branch needs to become a neutral third party with respect to the legislature and executive. It needs firm controls to keep it from making laws itself. It probably needs the ability to be more active in enforcing the Constitution. (Am I expecting too much when I assume that very little federal excess would happen if the Constitution were actively enforced by a rational, knowledgable and neutral party?) Perhaps it needs the ability to impeach office holders, since the legislature is clearly incapable of doing so.

    The party system needs to be ended. This must happen without abridging free speech. Governmental authority must be distributed and held by a federation of the states, not by a centralized party system operating over a federal infrastructure.

    More reforms would be useful. Campaign financing should be reformed, and not by the elected representatives themselves as that would be absurd. But too many reforms or reforms without firm controls would create public fears of a runaway convention.

    Garry proposes to reign in government using a limited government model of the Bill of Rights. While I’m sure the limited government model is a good idea in theory, the model does not correct the structural defects in the core of the Constitution that permit systematic government abuses. A deeper reform of the Court is necessary to create its political neutrality and to restore its correct purpose of keeping our government in the business of peacekeeping, stabilizing, and supporting the states through a handful of necessary government services, while preventing government from extending its powers to control our private lives and our state governments. I’m sure most of the Framers were aware that any power in the hand of politicians is power that is subject to abuse by those politicians, so access to those powers must be minimized. The main issue I see in judicial interpretation is partly the fact that the Court needs to be removed from subjection to the executive and legislature, and partly the question of what should be the correct restatement of purpose of the reformed Court.

    If the Court were to be removed from the domain of the executive and legislature, what body would appoint the Court? Any group of persons appointing the Court will eventually create bias towards the body. If left handed bowlers with one eye were to elect the Court, eventually left handed bowlers with one eye would have more rights than the rest of us. Would the appointment of Justices by lottery, similar to the selection of local juries, be a preferred solution?

    How would a reformed Court be kept within the limits of its powers? Would the House have the power to impeach a Justice? An assembly of state Governors? If the Governors had the power to impeach Justices, the Court would have some bias to the authority of Governors. Would that be a bad thing, given that federal is preferable to partisan? It would help restore the government to federalism, but where should the bias be limited?

    Erler’s response was a bit overly condemning of Garry I thought. I do not believe Garry rejected the idea that values play a principle role in the Framing. Erler defined the ends of government as Justice, which isn’t too far from the truth. Again, I am a guy in a rowboat with a musket, standing up to a frigate with about a hundred guns on it when I disagree with Erler. But I shall anyway.

    The original purpose of the states in forming the government was to prevent the states from existing in a “state of nature.” They were exposed to threats from foreign countries. They needed some structure to minimize conflicts between the states. They needed a strong representation to address the other nations of the world. They wanted financial stability and the ability to borrow money from other nations. Those were at least some of the core requirements in the design of the Constitution. The inclusion of justice was a necessity as a prerequisite to the organization they wanted. Justice was the preferred tool for creating those things. Justice was part of the means, not the ends. The states would not support a new federalized national form of government that was not just. It certainly would have been expedient for pro-Constitution politicians to garner political support from the states by claiming to the public that Justice was paramount. The inclusion of the idea of justice in the Framing had as much to do with the mathematics of games theory as it did with pure ideation, in my humble opinion.

    I feel that this is a difference worth mentioning, because having a clear and concise understanding of the purpose of a construction defines its scope. It tells us when the project is done, and done right. It creates the guidelines for costs and benefits. It tells us when we go out of scope, when we exceed our limitations, when we overreach. And when things fail, this understanding tells us why.

    In this difference of opinion I see the origin of today’s conflict. The original purpose of the Constitution was not to create a just society. It was to assemble the states into a mutually beneficial nation. Justice was not the object of the construction, but a tool used in the construction. It was a selling point. It was a useful instrument of design and construction. Because it was not a priority, justice was not included in the construction as well as it could have been. From what I can discern that lack of prioritization of justice is the main reason why we have a biased Court.

    Engineers see this kind of thing a lot. Here is what the salesman sold the customer. Here is what the engineer could actually build. The customer did not get quite the product that they were promised, but they are so heavily invested in it that they have to try to get what they can out of product, warts and all.

    Before deep reforms are made to a government, justice must be reconsidered as one of the ends, not just a means, I would think. Once restated as a primary purpose of government, and given clear and rational definitions of its purpose and limits, the reform can begin.

    The first problem of a project of the scope I am referring to is the problem of public buy-in. We have the technology today to build a tunnel between Alaska and Russia. We are not building it because such a project does not have political support. The issue is not technical, it is political. Similarly, reform of justice is not a technical problem. We have the knowledge and tools to design fixes for the warts in the Constitution. The problem is political. One of the first issues of the political problem is the having a clearly stated purpose, which is where I find writings like those in Liberty Law interesting.

    I thought Ramsey’s response was a bit odd at first. The first ten amendments were not a bill of rights. The main body of the Constitution defines how the government operate when it works correctly. The first ten amendments were safety controls to prevent the government from exercising well know instruments of abuse when the government stopped working correctly and became abusive. The Framers needed those preventive amendments to ensure ratification. Many in the public were afraid of potential abuses by the new government. The first ten amendments are safety checks that were amended to the Constitution for pragmatic reasons. Ideations of rights can be found in implications in the first ten amendments, but rights were not the primary reason the amendments were put into place. Calming the fears of the public was the driving issue. Strong measures to help prevent the well known instruments of abuse by government was the tool they used to do that. The amendments were written with respect to justice, as that was necessary, so concepts of justice can be derived from implications in the amendments.

    And yet after some reflection, I see that Ramsey’s comments make sense when viewed in the context of criteria for judicial rulings. A Justice needs an objective set of guidelines to rationalize rulings. A set of standard principles extracted from the first ten amendments I’m sure are invaluable for such a purpose. But this assumes that the Court is inherently fair and unbiased. While I certainly do not see negatives in extracting useful principles from the Constitution and amendments for judicial purposes, I do not see how this will solve the core problems of the inherent Court bias and the control of the US government held by the political parties which are the main causes of government exceeding it its limits.

    I wasn’t sure what to make of Bowling’s response. The first three times I read it, it was like a fascinating history lesson with no focus. I assumed that Bowling’s point was subtle, but easily recognized by folks who spend a lot of time reading and writing this kind of stuff. But then, I eventually got it, or at least some of it (I think).

    Bowling gave a quick run-down of the meltdown of government limits which began immediately after the Constitution was put into operation. We thought we were creating a federal representative form of government that used strictly controlled democratic processes to accomplish its ends. What actually happened was the insufficiencies in the systematic checks failed and we became a democracy by proxy operating over a federal infrastructure. In theory, a proxy democracy is easier to keep within limits because it is easier to control the actions of a small population that it is to control a large population. But the inverse is also true. It is easier to corrupt a small group of people than a large group. With a lack of sufficient controls on the small group of proxies, corruption quickly took hold and things went downhill quickly. (I’m probably reading too much into Bowling’s comments, but this forum is about exchanging ideas, so I’ll just go with it.)

    Bowling ended by pointing out that the original ten amendments were not originally considered a bill of rights. That concept was invented by the New Deal progressives. The original idea of a bill of rights as an amendment was shot down by the Federalists. Whatever rationale they publicized, they wisely wanted to keep such a thing out of the hands of government. I can not imagine the horrors of a government empowered to dictate me what my legal rights are and are not with respect to keeping my government under control. I can not accept that justice can come from a biased Court, peopled by a power-mad and out of control political oligarchy. Given the ability of an under-controlled government to openly and unapologetically exceed its authority when it comes to more structural powers such as building highways, replacing gold and silver with federal reserve notes, creating fascist government controlled health care, and the like, I dread the thought of giving that same government the power to tell me what my legal rights are; at least beyond those reasonable limits on my rights necessary to keep the peace between me and my neighbors. The Framers chose well to keep a real bill of rights out of the Constitution. Once government can state what your rights are and are not, you have no rights.

    Personal (or natural) rights come from God. Legal rights come from social contract. (Did I get that right?) The rights referred to in the Ninth Amendment are legal rights. Those rights are formally stated obligations accepted by the citizens to support a government that benefits its citizens. Once the cost of the demands of government exceed the benefits gained by government, the citizens change or throw off their government, just as we did to Great Britain in 1776.

    The ultimate personal rights of citizens with respect to government is the power to say “no” to government when government demands too much, and to end or reform government when it goes completely out of control. Government serves the citizen, before the citizen serve the government. To the degree that government can prevent its citizens from telling it “no,” and to the degree that government can prevent its citizens from reforming government, to that same degree government is a tyranny.

    The parties control the government. They are the government in the context that they are the decision makers.

    The parties control of the two means to reform the Constitution through amendment. The parties control Congress and the state legislatures.

    The parties select the Court’s Justices, with each of the two parties fighting to control the next appointment so the bias of the Court most favor’s themselves. The Court rejects the ability of the people to say no to violations by their government, using such actions as absurd requirements for “standing” when adjudicating citizens rights.

    It can be argued that people choose the members of the parties, and that the parties represent the will of the people. A closer examination shows something different occurs in American politics that disproves that theory.

    The party members act on behalf of their strongest backers. To ensure their election, members’ obligations must be first to their party, second to their financiers, third to large organized voting blocks who frequently want more government handouts, and last to the rest of us. Our elected representatives are democratic proxies. The original idea marketed about representation in the Constitution was that the public would elect the wisest and most virtuous people to represent them. The public actually tends to elect the representative who is most likely to bring home the bacon.

    All of this of course moves the government over time in the direction of socialism and other leftist practices that involve the promise of redistribution of wealth. (What we call “progressivism” is actually democracy on its well know path of inevitable collapse. Progressivism is democracy in action when it is not contained by effective structure. Progressivism is democracy.) Over time the democratic construction raises representatives who conform senselessly to the whims of their party, are deeply in bed with the wealthiest campaign contributors, who promise passionately to redistribute as much wealth as possible to the people in their districts, and who feed the fires of mad public rages. They tend to appoint Justices who lean in favor of allowing them to do so. They tend to reject Justices who would deny them their excess powers.

    That is a serious and obvious flaw in the design of the Constitution. The flaw is made more serious by the fact that the parties control the means to correct the Constitution. Minor tweaks to theories of how the Constitution should be interpreted will not correct these problems.

    Limited government through effective structure in the context of the US Constitution means instituting instruments for keeping democracy by proxy from destroying itself. The first eight amendments are preventive instruments that keep government from exercising well known tools of abuse as were known at the time of parliamentary monarchy. One or more similar amendment is needed to negate instruments of abuse discovered in our experimental representative democracy.

    National parties must be outlawed, or least candidates must be separate from obligations other than those obligations that bind them to their constituents.

    Financing of candidates must be controlled, probably by something similar to a NFL salary cap, but with a campaign finance cap. Candidates cannot be allowed to know who gave them money as that is bribery, pure and simple.

    The federal trough must be shut off. If the states want to experiment with state run social programs, more power to them. I’m fine with letting the states experiment and learn from each other’s successes and failures. But when the party members in the states hide the costs of social programs by shifting them to the federal government and then proclaiming that they created balanced budget in their own state when the feds could not, that is partisan driven Three Card Monte, and must be ended as a practice. The citizens are poorer overall because they are politically disconnected from the reality of how much they actually pay for the federal cornucopia of social programs, so they do not know to say “no” to the taking. And we all know that the parties use federal welfare programs to buy votes thereby strengthening the trend towards national centralization. A structural amendment might address the federal public trough.

    Perhaps bills from Congress should be single law bills. That way Congress and the President would no longer be able to hide behind combined bills. A reformed Justice branch, representing the people’s firmer ability to say “no,” may be given more power to nullify bad laws before being presented to the President for approval; and to impeach or even arrest for criminal trial corrupt office holders. Notice that I am not referring to “the Court” now, but “the Justice branch.”

    A ranked voting system for choosing office holders is needed in place of the current either-or voting system, since the either-or system as a matter of natural law (games theory) tends to create a two party system, which encourages oligarchy.

    A stronger separation of powers is needed. Perhaps one full election term must pass before an officer can move between branches.

    The Court of course needs to be appointed in a way that creates neutrality, or if not neutrality, then a considered and controlled bias.

    The minor issues of things such as abortion rights, fiat money, etc. are not important right now. The only right that really matters is the right of the citizens to reform their government. When that is completely gone, no other rights will have meaning. The target of the big legal guns needs to be the kinds of deep reforms that I described here, not the lesser issues. The lesser battles seem more attractive because they can be fought and occasionally won, but the price of doing so at the expense of deep reforms will be the loss of the war. After the war to reform government is won, the lesser issues will be relatively easy to resolve.

    To bring about these kinds of reforms certain things must happen. A clear New Federalist Manifesto must be written and published. It must require reforms similar to those I just described. It must have formal rationalizations for its action points, not informal ramblings such as this comment written on an Internet blog. It must include a plan of action. Probably a new party must be formed with a platform based on the manifesto. The party probably should call for an assembly to have a pre-convention. To ensure neutrality it should probably be membered by arbitrarily selected non-partisan judges. The pre-convention should probably lay out an easy to understand general plan of action for amending the Constitution. The plan should include easy to understand instruments to prevent a runaway COS, if a COS is used to amend. The plan should include the requirements for the amendments, but probably not the wording of the amendments themselves because the process of moving from one set of government practices to another may require special wording in the amendments, and those processes should be worked out by the convention. As a political necessity, the political parties absolutely must be kept at arm’s length from the proceedings. The parties would be inclined to only support amendments if they give the parties more power, or at best the public would view the proceedings in that light and be properly disinclined to support the effort.

    That is the kind of action we need if we are to bring discipline to our out of control, runaway Democracy by Proxy. The problems of poorly disciplined democracy cannot be fixed by proposing subtle changes in interpretive theory.

    A number of state COS efforts are underway, but none of them address the core sources of problems in the Constitution that I outlined here, or the kind of solutions I outlined here. They are only patchwork reactionary measures. Loyal partisans are involved in all of those efforts which brings into doubt the credibility of those efforts.

    Thank you, gentlemen, for sharing your wisdom and knowledge with us.

  6. Scott Amorian says

    After reading the essays I had some questions about what rights really are. After doing a little more research into the topic of rights, I wanted to write out a couple more insights on the topic in this second comment, which, given the length of my commentaries, I’m fairly sure it shall become the second chapter of my upcoming book, Radical Constitutional Reform for Dummies. ;) I find that writing out ideas on a topic like this helps me understand the topic better.

    First, I wanted to dig a little deeper into Bowling’s statements about how the first ten amendments were not meant to be a bill of rights. They were not originally thought of as such. Here is the full text of the preamble of the original bill that containing the first ten amendments. The first paragraph is the important one.

    “Congress of the United States
    begun and held at the City of New-York, on
    Wednesday the fourth of March, one thousand seven hundred and eighty nine.

    “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

    “RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

    “ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.”

    The first paragraph states explicitly that the first ten amendments were not intended to be a bill of rights. Rather, they were added to prevent abuse of powers by the government in case the structures in the general body of the Constitution were insufficient to keep it within its limits. The paragraph also states that these amendments were added for the purpose of building public confidence. I find it interesting that the preamble also states that the first ten amendments were not intended to modify the body of the Constitution, rather they are declaratory statements, and they are restrictive in that they define and forbid well known government improprieties, but they do not modify the body. They are safeguards to prevent the government from doing certain well known bad things in the event that it gets out of control.

    Some more digging into the history of bills of rights turned up a little more useful information. One of the earliest bills of rights was the Bill of Rights of 1689 in Great Britain. It granted some degree of freedom to the subjects. What I find interesting about this is the character of rights with respect to a ruler. In a monarchy, a king or queen is the ruler. The ruler grants rights to the subjects. The subjects do not grant rights to the ruler.

    Before giving rights, rights must be owned. I cannot sell mineral rights to a piece of land unless I own the mineral rights to that land. A government can not give rights to the citizens unless the government first owns those rights. In a strong monarchy a bill of rights makes sense because the monarchy is assumed to own the rights that it may grant to the citizens if it wishes to.

    For a Constitution to contain a bill of citizens rights it would first have to be the owner of those rights, thereby making it the ruler and the citizens its subjects. But in the American form of democracy the opposite is true, the citizens are the ruler and government formed by the Constitution is the subject. The citizens create the government and grant the government rights to do things. The citizens can modify the form of government at any time for any purpose. The citizens can even dissolve the government. The citizens’ rights are absolute. The government’s rights are defined and therefore limited.

    Perhaps the Framers’ disagreement over including the first ten amendments was over terminology. The people arguing for a “bill of rights” really wanted a “bill of safeguards,” but they used the phrase “bill of rights” because that is a phrase from British law they were familiar with. The people arguing against a “bill of rights” in the Constitution wanted to prevent the government through the Constitution from becoming the source of rights over the people.

    Looked at in a different light, rights are the natural byproduct of dependency, or at least the perception of dependency. The citizens’ dependency on the ruler, gives the ruler power over the citizens. Because the citizens are dependent on the ruler, the ruler can establish rights. Once dependency is broken, the ruler is no longer the ruler, and can no longer declare what the rights of the citizens are. The citizens are then free to make a declaration of independence. In most or all governments, dependency is not an absolute, but a degree. The worst despots work to increase dependency to gain more power. Perhaps that is why despotic governments tend to rise during economic turmoil.

    We saw massive despotism rising during the Great Depression. The dependency of an economically depressed Europe gave rise to the Nazis and Fascists. Similarly in the US, we saw the New Deal progressives under Roosevelt attempting to create a bill of rights. That attempt failed, fortunately, but the progressives were able to misappropriate the phrase “bill of rights” and apply it to the first ten amendments. Up until the New Deal, the first ten amendments were not known as the “Bill of Rights.” They were just the first ten amendments. Where the progressives failed in their attempt to create a real bill of rights, they were successful at creating a faux bill of rights by labeling the first ten amendments as a bill of rights when those amendments were nothing of the kind. Even today the emperor wears no clothes, and the general public still sees the beauty of the garment of citizens’ rights in the first ten amendments.

    A liberal constitutional government depends on the citizens. Those who would rule the citizens of such a government would first have to make the citizens dependent on the government.

    The value in not permitting statements of rights in a Constitution is in preventing the government from becoming the ruler over the citizens. The term “bill of rights” is a term that derives from a totalitarian form of government. It cannot apply to citizens in a liberal government. In a liberal government, rights related to national governance can only be defined for the government, never the citizens. Any definition of citizens’ rights in a liberal Constitution are either declarative and add no value, or they cause oppression. Neither are beneficial, so declarations of citizens’ rights should be avoided in a Constitution.

    An example of the results of an oppressive statement of rights can be most clearly seen in the most miserable sentence in the US Constitution which defines some men as being only 3/5’s of a man simply because of accident of birth. We sacrificed hundreds of thousands of lives to exorcise that unfortunate statement of a right from the Constitution. Any attempt to add non-declarative statements of rights to the Constitution should be addressed with the same antipathy since they would produce the same or similar misery since it is not possible to add to the rights of the citizens, only to reduce them.

    Another interesting example of the problem of declared rights in the Constitution is seen in the statement that no state shall make anything except silver and gold legal tender, which is a limitation on the rights of the people. The people properly ignore this rule.

    Any attempts to derive a set of citizens’ rights from the Constitution should be observed with the gravest caution and distrust. The only meaningful rights of free citizens in the context of the their constitution are the rights to create, own, change, and disolve their government. The citizens are free to give up their freedom and submit their government to an authority other than themselves, such as the leadership of a party oligarchy, either by actively choosing to do so, or, by standing passively and choosing inaction, thereby permitting such a group to take over command of the government by default.

    The rights of citizens with respect to legislative law in a liberal government are a related but different matter. Questions around these rights can only address the limits of the rights of the government to act, not the rights of the citizens since the rights of the sovereign citizens are perfect, absolute, and in accordance with the will of Nature’s God.

    The problem of rights of sovereign citizens with respect to legislative law is the problem of the degree of separation between the citizens and the legislators. If the obligations of the legislators are exclusive to the citizens, the legislature is proper for liberal government. But if the obligations of the legislators are separated from the citizens and are towards others such as political parties and campaign financiers, the legislature is improper and operates outside of liberal government.

    All legislation that comes from obligation to parties and campaign financing are violations of the rights of the citizens. These sources of disloyalty create a fiat authority over government; one outside the scope of the Constitution and contrary to its purposes. The sources of the disloyalty must be removed. No one can serve two masters.

    Legislation in a representative democracy must be the equivalent of a monarch making laws for himself. The subjects cannot make laws governing the sovereign, but the sovereign can commit to rules to follow himself. When representatives create laws governing the sovereign which are not done at the command of the sovereign, an alien power has taken over the sovereign’s government. The illegitimate law makers must be removed from office so that order can be restored.

    Only legislation can limit the rights of the citizens since legislation represents the citizens ruling themselves. Such legislation can only be made within the limits set in the Constitution. Those limits are always meant to prevent people from harming each other, or to compel the people to provide necessary support for the government, such as payment of taxes. Legislation can also provide for national benefits that the states or citizens can not provide for themselves, such as national patent rights, national infrastructure, and representation of the citizens to the other nations of the world as a nation.

    So with the general theory laid out, we can look at potential amendments. These come in two forms; safeguard amendments to restrict the representative government from abusive actions it might take if it exceeds its limited rights; and structural amendments to change well known flaws in the design of the Constitution. In both cases, the need for amendment must be plain and obvious, and the proposed changes must generally not assume rights over the people.

    Necessary and proper safeguard amendments could include:

    1. Forbidding office holders from being party members. This will help ensure the obligations of the elected office holders to their citizens.

    2. Forbidding office holders from knowing the identity of financial contributors, putting caps on campaign spending, and forbidding campaign contributions from persons who are not of their electorate. Knowing identities creates bribery. Caps on campaign spending reduces the effects of outside influences on the results of campaign. Forbidding outside contributions will limit the ability of persons who are not of the electorate to control who represents the citizens. This measure will help ensure the obligations of the elected office holders to their citizens by removing much of the corrupting influence of money. It will require candidates to run on claims of competence instead of the brainwashing effects of heavily financed mass marketing. Because these changes limit the rights of the citizens to some degree they would actually be legislation written into the body of the Constitution, but because the legislators can not be trusted to implement and support this kind of legislation themselves, the body of the Constitution may be the only means to implement this kind legislation.

    3. Forbidding questions in court of citizens’ rights, but requiring questions of rights to be addressed only as questions of government’s rights. The citizens’ rights are absolute and perfect. The so-called “rights” of the citizens in the Constitution are not rights of the citizens, but actually safeguards against government exceeding its limited rights.

    4. Forbidding any groups or persons except the citizens as a whole or the citizens’ states from exercising authority over the government. Forbidding either the citizens or the states from seizing full control of the national government. This is to prevent political parties from controlling the government. After removing the parties from power, a vacuum may form and groups may attempt to fill it, which would be undesirable. This amendment would help prevent America from becoming a direct democracy, and it would prevent the heads of the individual states from taking control of the national government.

    5. Forbidding any operation of national government that creates dependency of people on government. Through the creation of dependency, democracy is eventually destroyed.

    6. Forbidding the hiding of information from the public necessary for decision making. If decision makers are poorly informed, they will not be effective decision makers. Most people are unaware of how shockingly much they really pay in taxes because of the many ways that government hides taxes. The government must provide to each taxpayer generally correct data about the amount of tax that the citizens really pay. And few people know what is really going on in the Federal Reserve.

    7. Requiring impeachment of office holders for accepting any kind of bribe. The current government acts as if impeachment is optional.

    Necessary and proper structural amendments could include:

    1. Changing the method of appointment of Justices so they are neutral to the national government. The current method of appointment is inherently flawed and creates bias in favor of unright government powers.

    2. Expanding the power of the Justice branch of government to investigate wrongdoings with respect to Constitutional government, to charge and try wrongdoers, and to impeach abusive officers.

    3. Placing strict limits on the power of the Court forbidding it under penalty of criminal punishment from knowingly attempting to create law, and requiring impeachment for incidentally creating law: Cases requiring new law must be referred to Congress.

    4. Requiring bills to contain only a single law as identified as being on a single subject. This prevents the legislature and executive from the infamous practice of hiding behind combined bills. It makes the office holders accountable to their electors for the decisions they make. This may also lay the groundwork for permitting the public to negate undesired legislation directly.

    5. Requiring the passage of one full term of office before officers of one branch may serve in another branch. This protects and strengthens the separation of power between the branches.

    6. Requiring elections for office holders to be based on a ranking vote instead of an either-or vote. The either-or vote tends to create a two party system, which creates an oligarchy, which is unright governance. The technology did not exist in the 1700’s to do ranked voting on a national level. Today we have the technology.

    7. Removing the requirement that only silver and gold be legal tender. This is a limit on the rights of the citizens, one that is not observed anyway.

    These proposals gives the general idea of proper and passable amendments. Amendments need to be based on correct theory, not reactionary measures such as balanced budget amendment proposals, and they need to be the kinds of changes that do not have a history of failing. There were over 100 original amendment proposals of which only 10 passed. The 10 that passed did so because they did not change the structure of the body of the Constitution. The public did not want to open that pandora’s box. The first ten only provided safeguards against practices known to be used by government when government became abusive. The safeguard amendments described above should not change the structure of government.

    Structural amendments can pass, but they need to address issues that are believed strongly by the general public to be the causes of abuses or dysfunctionalities. The bias of the Court is obviously a dysfunction and it is an instrument of abuse. The lack of effective separation of powers is an obvious dysfunction. The original “new normal” of the parties taking power of governance from the people and the states is an grotesque dysfunction. The problem of making corrections to the Constitution is not the problem of figuring what needs to be corrected, rather, it is primarily a problem of the general public recognizing the cause and effect of abuse and dysfunction, and the problem of public awareness that changes can and will be made in a politically neutral and controlled manner.

    The idea of an open Article V Convention of States scares the heck out of people, and properly so. No one wants to open that pandora’s box. The process of making necessary change must be built around keeping the process controlled at all times so the people can be confident that it cannot run out of control. A controlled process of change can be designed and implemented. It can be done. The changes and the processes must have a lot of public input, otherwise it will appear to many people that a small group of people is trying to take over the government by imposing changes onto the Constitution. That is a healthy concern. That is a problem of appearances which a lot of Article V COS movements have, and, along their lack of a solid foundation in correct theory of liberal government, is the reason why those efforts will not succeed.

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