My Constitutional Amendments

Or at least my ideas for amendments. Crafting any change to the constitution requires careful thought to limit unintended consequences.

1. Equal Rights Amendment. Already written but needs to be revised to include sexual orientation: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex or sexual orientation.”  In fact, why don’t we just clearly include everything: gender, race, religious affiliation, national origin.

2. Term Limits. Until recently, I’ve not been a great fan of term limits because I thought people should elect anyone they want. But recently I’ve become convinced that the power of the incumbency is too great an obstacle to proper functioning of our republic. So, 18 years in the House and Senate; 12 in the White House (yes, that adds a third term).

3. Abolish the Electoral College. The president and vice-president will be elected by popular vote. Recently, I read about a way to effectively abolish the Electoral College that doesn’t require an amendment or Congressional action. States have the right and power to apportion electoral votes as they see fit as determined by state law. So, each state could enact a law to give the entirety of the electoral college votes to whichever presidential candidate wins the popular vote.

4. Corporations Are Not People. Override Citizen’s United and any decisions in inferior courts that led to Citizen’s United.

5. Repeal the Second Amendment. I’m not proposing we ban guns. I’m proposing that owning them not be a constitutional right and thus ownership can be regulated like any other hazard.

6. Independent Redistricting. I’m not sure what system will work best – they all have pitfalls. But I propose to ban legislators picking their voters. Let’s get back to voters picking legislators.

7. Replace the 1st, 5th and 14th Amendments. Replace them with something that more clearly defines free speech, freedom of religion, freedom of the press, equal rights, due process. I don’t propose we restrict or expand these rights and freedoms, just make them less susceptible to bizarre Supreme Court interpretation. See Citizen’s United. All enumerated rights shall clearly state applicability. I.e., rights granted to citizens only, to legal residents, to anyone on US soil. In no case shall a US citizen be deprived of rights under the constitution including that of habeas corpus. I.e., no indefinite detentions without a prompt hearing before a judge.

8. Constitutionalize Marbury v Madison. The constitution doesn’t actually give the Supreme Court the final say on what is and what isn’t constitutional. Make it so.

9. Article III Judges. There shall be nine justices of the Supreme Court. No fewer, no greater. Justices of the Supreme Court and all inferior federal judges are limited to a single 18 year term on any particular level of court (including all justices and judges currently sitting when the amendment gets adopted). The president shall have the power to fill any Article III vacancy without Senate consent after a time period has passed and the Senate has not voted on a valid nomination. Confirmation of a Supreme Court justice shall require at least 60 votes in the Senate; all others require a majority vote. If a nominee gets a vote but fails to garner sufficient votes for confirmation, the time clock for nomination and confirmation resets. A nominee for a seat on the Supreme Court shall be limited to those judges currently sitting on one of the eleven Federal Circuit Courts of Appeals (with a new 18-year term limit). A nominee for a seat on one of the eleven circuit courts shall be limited to judges currently sitting on a federal district court or one of the state highest courts. All nominees for federal court shall be members in good standing of a state bar. The nine members of the Supreme Court shall choose one of their group to be Chief Justice for a term to be specified (i.e., someone gets to be Chief for say, two years, then goes back to being an associate justice).

10. Citizenship. Anyone born in any state of the union, or the District of Columbia, shall be a citizen at birth. Anyone born with at least one biological parent a US citizen shall be a citizen at birth. These will be defined as ‘natural-born citizens”. Anyone born in a US territory shall not be a citizen at birth unless a parent is a citizen of one of the states or DC. Note: At present, people born in Puerto Rico, Guam, the US Virgin Islands are ‘natural-born’ citizens. I propose that these territories and the other territories can decide for themselves if they want to become US states and until they do, anyone born there will not be a natural-born US citizen. Anyone who serves honorably on active duty in any of the armed forces – including the Coast Guard – for a set length of time (12 years?) shall gain citizenship, as will their spouse provided the spouse also meets the time requirement. Children born to an active-duty service-member will be granted citizenship when the parent gets it.

11. District of Columbia. DC shall gain full representation in the US House and the Senate. Citizens of the district shall have full voting rights in presidential elections.

12. Census/Representation. A census shall be conducted every ten years to count the number of citizens and permanent residents in each state. The census shall not ask nor determine any other demographic count. Someone else can determine the whole population of the US if we want that number. Representation in the US House shall be apportioned according to each state’s number of citizens at the time of census.

13. Presidential Pardons. The president shall have the power to pardon any person, with exceptions, for any criminal conviction, federal or state. The president shall not have self-pardon power, nor the power to pardon any person closely associated with the president. The Court of Appeals for the District of Columbia shall have original jurisdiction to determine whether a person is closely associated to the president but that group shall include all current and former members of the president’s administration.

14. Cabinet Positions. Upon resignation or removal of a Senate-confirmed member of the cabinet, the current Senate-confirmed deputy shall assume the duties and responsibilities of the office until a Senate-confirmed successor is appointed. If no Senate-confirmed deputy is currently in office, the Speaker of the House shall appoint an acting deputy who will assume the duties of the cabinet member until a Senate-confirmed successor is appointed.

15. Immigration. There shall be a statute of limitations for deportation of ten years. I.e., anyone who resides in the US illegally for ten continuous years shall be granted legal resident status regardless of their criminal status otherwise. This is not to grant immigration amnesty to ex-Nazis and other heinous criminals just because they eluded notice for ten years but to prevent people who have been here for a long time and who have done nothing wrong other than cross the border earlier in their lives from being ripped away from their families and deported to a country they don’t know. It will also encourage long-time illegals to fully become part of our society.

16. Federal Elections (President/Vice-president, US House, US Senate, US Constitutional Amendments). The US Federal Elections Commission shall conduct, regulate and monitor all federal elections. State and local elections may attach to the federal elections but in no instance will any election for federal office or amendment to the US constitution be governed by state law (note that I am also calling for getting rid of the Electoral College so state apportionment of electoral votes becomes a non-issue). A federal state-specific voter ID card will be created and administered by the US Federal Elections Commission. No one shall vote in a federal election except upon presenting a valid voter ID, except for marking a provisional ballot when there’s a dispute as to eligibility of the voter. Federal voter IDs shall be available to all citizens upon showing proof of state residency (criteria determined by the FEC) at specified federal and state offices. No undue travel or financial burden shall be imposed for obtaining an ID card or to vote. A federal voter ID card shall be valid proof of state residency and voting eligibility for state-wide offices and questions. States can still require something with proof of current address for local elections and questions. States can also set up federally approved mail-in elections, such as Oregon has.

17. Federal Elections Part II. All eligible voters are required to vote absent good excuse as determined by the FEC or Congress. Good excuses shall be very liberal. Federal election days will be state and federal holidays. All federal elections will provide for at least a two-week early voting period.

18. War Powers. The US Congress shall retain the sole power to declare war. The president shall have the power to initiate and conduct hostilities as Commander-in-Chief of the Armed Forces pending an Act of Congress to declare war, terminate hostilities or authorize limited armed conflict. Declaration of war shall require, at a minimum, initiation of the draft. In no case shall the National Guard of any State be federalized into active duty in the US armed forces unless a declaration of war has been issued by Congress. All citizens shall register for the Selective Service upon their 18th birthday. Upon declaration of war by Congress, all permanent residents of the US between 18 and 35 years of age shall register with the Selective Service.

 

The first thing we do, let’s kill all the lawyers.

The first thing we do, let’s kill all the lawyers.

A line from Shakespeare’s Henry VI, Part 2, oft represented as antagonistic towards lawyers. In fact – or in opinion, if you will – William Shakespeare probably meant it as a compliment to the legal profession in that they held society together through the rule of law. A bulwark against anarchy. You’ll find that a common if not popular interpretation and it’s one that was presented to us neophyte law students pretty much on the first day of orientation. Law professors love Shakespeare.

But as I said, it’s not the popular interpretation. Most non-lawyers think it suggests that lawyers are a bane of society rather than a bulwark, and should be eliminated. Personal injury lawyers are ambulance chasers and the reason we have stupid labels on virtually every product made warning us against incredibly obvious dangers is because of lawyers. Why, wasn’t it lawyers who successfully sued McDonald’s because their coffee was hot? And the US Congress is chock full of lawyers and look how well that works. We should ban lawyers from Congress!

Well, no, we shouldn’t and that brings me to my point. Rather than ban lawyers, we should require law degrees of all our Congressional Representatives and Senators. Seriously.

Why? Because Shakespeare (if you subscribe to that interpretation) was right. We as a society are held together because of our respect for and adherence to the Rule of Law. Intentional caps. Without the rule of law, we’re just a bunch of savages trying to survive as best we can, taking what we need from whomever we can. A little harsh?  You wouldn’t be like that? No, me neither. But what you and I would do is band together with like-minded folks and establish a society where the rights and liberties of all are respected. In other words, establish the rule of law.

I think – I hope – that’s a concept that most of us can agree with. The rule of law is a good thing. But that’s leaves us with two questions: one, what laws should we have and two, why do we need lawyers? Can’t reasonable people just agree on common sense laws that everyone can understand?

I’ll leave the first question alone – not because it isn’t as important (it is in fact much more important) but because the second one is the least understood, I think.

Let me make this statement: Law is hard. While it certainly isn’t beyond the grasp of most intelligent people, it is not a subject amenable to casual scrutiny by the even most intelligent among us. The concepts are often arcane, deriving from centuries of formulation and refinement. I reckon most people can’t so much as describe what is meant by the term Common Law much less apply it to the specific legal issues where it’s relevant. I know I couldn’t before going to law school. Yet it underpins our legal system, stemming from our country’s English heritage. And that’s just common law. Statutory law, while often easier to grasp, presents its own set of difficulties. Laws are written in a language that often defies common interpretation.

One such misinterpretation is the term ‘assault’. Ever wonder why a criminal charge is often termed ‘assault and battery’? Isn’t that redundant? No, because assault in legal terms doesn’t mean what it does in common English. It doesn’t mean to ‘attack’ someone physically. In legal terms, it means to create an apprehension and fear of bodily harm, coupled with the apparent ability to carry out the threat immediately. Assault is the (credible) threat; battery is carrying through with the threat. The two terms are necessary because each act constitutes a crime and one doesn’t depend on the other. You can commit a battery without assault, and vice versa. Laws are written just so and, as I said, often use uncommon language. Otherwise, ambiguities may arise making it difficult to determine what crime someone may have committed or whether they committed one at all. Legal terms are far more specific and defined than those we use in everyday language, and I argue they should be. Think about, say, banking law and imagine the complexities of terminology and concepts that go well beyond the average person’s understanding. Use of proper legal terminology and phraseology help define and constrain interpretations to what was intended. Laws shouldn’t be subject to challenge because – to use a popular internet meme – “I don’t think that word means what you think it means.”

Constitutional law presents a whole different array of difficulties to casual interpretation. Not only does one have to parse what the words mean, one has to determine what they meant two hundred years ago. One might have hoped the framers of our most important legal document would have written the thing in plainer language, maybe even provided some definition of terminology. It’s hard enough to apply an 18th or 19th century standard to 21st century reality when things the framers could not have imagined are part of our world today (say, the internet or well-funded political action committees) but it’s often difficult to determine what they meant when they wrote it. Equally important, does it matter what the framers were thinking? Maybe we should just go with what the words meant when they were written without regard to intent? Just this week, a controversy erupted over the 14th Amendment’s birthright citizenship clause with some interpreting it to only apply to the recently freed slaves. That interpretation has been repeatedly tossed into the historical dust bin but here we are again. And what exactly were the framers thinking with the phrase “A well regulated Militia …”  anyway? We don’t have the sort of militias today that were in existence when the Bill of Rights was adopted. Does the 1st Amendment’s right to free speech really apply to corporate campaign contributions? Are corporations people?

These are questions the justices of the US Supreme Court grapple with in deciding cases based on constitutional law. Some prefer what is called the doctrine of ‘original intent’ and say the document doesn’t apply to issues not part of the 18th/19th century world unless they can be enveloped within the words as written back then, while some prefer to apply the constitution in the light of modern reality. There are valid arguments on both sides. But either way, the justices must interpret two documents to decide constitutionality: the constitution itself and the particular law in question. The justices, therefore, must be well-versed in the law and its terminology, roots and concepts. That’s the reason I think candidates for the Supreme Court should be required to have considerable legal and appellate judicial experience. Most do and have, but not all.

OK, but that’s the Supreme Court. What about Congress? Let me frame my answer by asking this: do you really want the Supreme Court working hard to figure out what exactly Congress meant when it drafted a law? Or would it be better if the law was well-crafted, legally speaking, in the first place? Even if it was, that doesn’t mean the law is constitutional but it would be far easier to determine constitutionality if it was written by legislators with legal training. Moreover, we need laws written by people who have at least a decent understanding of the constitution, using whichever doctrine they choose to interpret it. We need laws written in such a way that they conform to the language of our legal system and stand a better chance of not being challenged and possibly struck down by the Supreme Court. Lawyers, or at least those who have law degrees, are who we need to write laws. The idea of ‘citizen legislators’ might sound appealing, but on the national level, it often just results in having people who don’t know what they’re doing running the country. The Rule of Law only works if the laws are coherent.

One might argue that my point is invalid because Congress is already, as I implied above, ‘chock full of lawyers.’ That’s true, but it would be worse if fewer had legal training. Then not only would they pass laws that ignore or distort political, social, scientific and international realities (and they do that so often these days) but the language of the bills would more often not even carry out their intent, making a complete hash of things that the Supreme Court has to untangle.

Before anyone gets their hackles up and starts firing off inflammatory screeds in the comment section, keep in mind two other things. First, in order to get an ABA-approved law degree in this country, you must first have a bachelors degree in something. Doesn’t matter what. So all law school graduates (OK, there may be some exceptions) are also educated in some other field. That in itself considerably broadens the experience pool to virtually every academic field. Each congressional committee could comprise legislators that not only have legal acumen but relevant training in the subject matter. The Science and Technology Committees would be composed of people with science degrees who can better understand the technical issues and who have the legal training to draft coherent bills to implement the desired policy changes without stomping on people’s civil rights. So too with Banking Committees, Education Committees, Arts Committees, and so on.

Second, I’m only advocating that Congress comprise those who have law degrees, not necessarily have practiced law. I have never practiced law, for example, but I have a law degree. So I’m reasonably fluent in law and can interpret laws, the constitution and court decisions, certainly much better than I could before getting the degree (said fluency is diminishing over time, of course). Before I got the law degree, I was like you. I thought Shakespeare hated lawyers.

Not that I’m running for Congress.

Nazis

Nazis. I hate ’em. My father fought against them in WWII. We won, so why are they still here? Why?

Trump not only tolerates white supremacists (Nazis), he actively courted them in his campaign. One of his chief advisors is a fucking Nazi. That makes Trump a Nazi sympathizer.

Republicans knew what he was but still elected Trump and the GOP Congress are nothing but petty, immoral facilitators of Trump’s agenda. McConnell and Ryan are scum.

Fuck them, fuck Trump, fuck anyone who voted for him.

Cops Who Are Fearful

Too often lately I read about someone getting killed by a police officer in circumstances where the cop claims to have feared for his/her own safety. The incidents are numerous and I don’t need to detail any of them here.

My point is this: police officers face dangerous situations where ordinary people might become fearful. But cops are not ordinary people. I’m not saying they are superhuman or inhuman. I’m saying they are in a job where their overarching duty is to go into dangerous situations and protect the public from harm. Protect them, not shoot them.

If a cop claims to have feared for his life because he thought the person in from of him was pulling a gun, then that cop should not be on the force. As a citizen, I require cops to have a much higher threshold of fear than that before using deadly force.

We need to change the law that allows the defense of a reasonable fear for safety to justify use of deadly force. Police should be required to encounter actual deadly circumstances – not just perceived ones – before firing a weapon at someone. Police training needs to change, too.

Better laws, better training, better cops. Better pay, too.

Black Lives Matter

A facebook post by a friend reminded me I wanted to discuss racial inequality in America. Big topic, yeah, but I only have a few thoughts right now. One thought, really. So many others are more eloquent than I.

The post was about a manager of the Cheesecake Factory in Tacoma, Washington kicking out a bunch of cops from the restaurant under the guise of the company’s policy of being weapons-free. Several of the cops were in uniform, with gun and badge visible. Others were plain clothes but apparently self-identified as police officers. The manager stated to these would-be customers that the policy was strict – no guns, not even those carried by law enforcement. The cops left, probably in a huff.

The Cheesecake Factory, however, does not have such a policy. While they are weapons-free (Yay!), a very reasonable exception is made for law enforcement officers. That Tacoma manager just didn’t know the policy or chose to expand it on his own. Cheesecake Factory apologized, but rather weakly, which prompted my local ‘Blue Lives Matter’ Facebook group to post declaring a boycott of Atlanta Cheesecake Factory outlets.

No. I’m not going to boycott any establishment because one of their rogue employees is an asshole and the company disavows said asshole’s acts on behalf of the company. I do think Cheesecake Factory should have an ‘LEO Eat Free Day’ or something, just to properly apologize. Maybe they’re doing that, I haven’t pulled the thread.

My wife and I have a ‘Black Lives Matter’ sign in the front yard, as do a few of our middle-class, progressive-but-still-mostly-white-despite-being-in-a-predominantly-black-city neighbors. BLM is, of course, why there is such a thing as ‘Blue Lives Matter’ Facebook groups. Some people think that if you support BLM, you don’t value the lives of police officers as much. Which is bullshit. None of the people I know that support BLM think that way. None. Even worse is ‘All Lives Matter’. Well, duh, that’s the fucking point, isn’t it? Black lives matter and we’re taking a stand to point it out because there’s apparently a substantial segment of the law enforcement community in this country that doesn’t quite get it, and black men (and boys) are dying needlessly. But police officers have a right not to die needlessly, as well. That is so indisputable it should not need to be stated. The Dallas tragedy was just as horrifying to me as anyone. I support my local law enforcement and think they have a vital yet dangerous job to do, and largely do it well despite being underpaid. When I see an APD cruiser in my neighborhood, I get a lift. It’s good to see them on the job and I’m certainly not suspicious of their presence. But, I’m not black and I don’t live in a black neighborhood.

Imagine you’re in 1950’s America. You’re white. Rosa Parks has made headlines for doing what she did and the civil rights movement is gearing up. You see the protests and demonstrations across the country – black people demanding their constitutional rights. Demanding the right to sit in the front of the bus if they choose. You think, “Damn right!” But you, a white person, then also think, “Hey, I also have the right to sit in the front of the bus! It’s not just them! All people have the right to sit in the front of the bus!”

And of course, you’d be correct. You do have the right to sit in the front of the bus. But the difference between your situation and their’s couldn’t be more stark. You can sit wherever you fucking well please on that bus because you’re white and no one is going to say a damn thing. Your rights are already respected. Blacks?  Not so much. Then, and unfortunately, now.

My Black Lives Matter sign means that black lives are just as important as anyone else’s. It does not mean more important.

Stand up for the oppressed, for they too are your neighbors.

In the end, we will remember not the words of our enemies, but the silence of our friends. – Martin Luther King, Jr.

Can we all get along? – Rodney King