One specific point jumped out at me after reading the document. I think they accidentally nerfed Congress’ power of impeachment and removal from office. That power appears in the section on the Presidency, and provides for impeachment and removal of the President and Vice President, and kind of throws in federal judges, but…that’s it. Cabinet officers? Military officers? Agency heads? Literally any other Federal office holder? Apparently nonesuch. I don’t think they meant to limit Congress’ impeachment powers that way, but…they did. On the face of it, it seems odd that they would include this power of Congress in the section on the Presidency - and throw in the power for the legislative branch to remove members of the judicial branch in a section on the executive branch. But it seems pretty clear that this section was driven by the recent drama and trauma of the Trump presidency, rather than really thinking about the issues from first principles.
Which is one of the biggest meta-flaws with this “Constitution”, which is all too common with these sorts of exercises. A lot of provisions are pretty clearly driven by the last crisis we just had, or the what seems like the most pressing current issues. There’s little if any consideration of what issues might arise in the future - or even any awareness of what issues have arisen in anything but but the most recent past. It’s a framework for reforming the country we have right now, not a framework for establishing the rules of governing whatever our country will be.
As is the part they put in about the president having to hold elected office for four years before running. It’s clearly an anti-Donald clause, but congratulations - you just disqualified Eisenhower.
I’d be fine with a unicameral, or the Senate described in this proposed constitution. A mostly toothless upper house can serve some function (see the Canadian or British example), but I think there is an argument to be had for just having a unicameral, too.
Then how does this “constitution” or any others have any real meaning? You might as well say that we recommend that Congress do this or that, but if they don’t then we might be really, really upset, but, meh, what do we do? Sure, the people can elect different members to Congress, but they can already do that.
If constitutional guarantees are applied to a body, but there is no enforcement mechanism, then what good is it? If under our current Constitution, Congress clearly passes an ex post facto law, and nobody can stop it, what good is it to have a provision stating that no ex post facto law can be passed? Is it just advisory?
Don’t you already have this problem with the current constitution? The courts have no difficulty enforcing a constitutional provision against Congress making a law abridging the freedom of speech, but they defer to Congress when it comes to the impeachment power. Likewise Art 1 section 8 gives Congress power to make laws “for the common Defence and general Welfare of the United States”; good luck challengin a law on the grounds that it is in fact detrimental to the defence or welfare of the US; the courts will tell you that’s a judgment for congress.
So, this isn’t a novel problem. If you’re seeking to enforce a particular provision against Congress the courts will look at it and decide whether, given its terms, it is apt for enforcement by the courts, or intended to be enforced by the courts. The courts ultimately decide which provisions are, and which provisions are not, enforceable in this way.
Is there any value to the unenforceavble provisions? Well, yes; Congress can impeach a president, and this matters even if the courts can’t compel it to impeach a president.
What about the proposed congressional duty to “maintain an economy that, through well-ordered labor markets and social provision, affords such a standard of living to all”. That might have legal significance if, e.g., the constitutionality of some law which congress had enacted was being challenged on other grounds; it might be defended by pointing out that it was justified by this provision.
The problem is those elements of this “Revised American Constitution” aren’t phrased as powers being granted to the Congress, or as restrictions on the powers of the Congress, but as duties imposed on the Congress. Which is quite different than the examples you give.
If the RAC said, “Congress shall have the power to enact such legislation as it deems necessary to maintain an economy…”, that might or might not be a good framework, but it would at least be a functional one. The same if the RAC said “Congress shall pass no law that would infringe upon the maintenance of an economy…” But saying Congress has a duty to “maintain an economy…” just seems meaningless. If they don’t…then what? Sue to force them to pass your preferred legislation?
Sure, you can vote out members of Congress who don’t live up to that ideal, but you can do that right now - you don’t need a Constitutional declaration of principles to vote out a member of Congress who you don’t think is doing what they should be doing.
Again, it’s a meta-problem with this whole exercise. They’re laying out a framework for how they want to reform the country we have right now, not a framework for governing a dynamic nation for centuries to come. It’s a policy platform, not a constitution.
They knew what a row of 20 guys with the single-shot rifles of the time could do (fuck a bunch of people up really, really badly). I doubt that if they knew that eventually one guy would be able to do the same thing by himself, instead of 20, they would have left out the 2nd Amendment.
I mean I think the Founding Fathers would be surprised about a few things in regards to guns and the Second Amendment.
I think almost all the Founding Fathers believed in an individual right to own firearms, but I suspect they did not see the 2nd Amendment as the major guarantor of that right. The entire Bill of Rights was intended to restrain Federal action, and under the pre-commerce clause expansion constitution of the 1790s it is actually highly unlikely anyone would have viewed a Federal law banning firearms ownership constitutional anyway. Simply because it would be outside the enumerated powers of Congress as it was understood at the time. There was actually considerable debate (not so much about the 2nd specifically), but all of the Bill of Rights, in that many of them enumerated things the Federal government couldn’t do that the Federal government already couldn’t do because the Constitution was designed so that the Federal government was a government of limited, enumerated powers. That it could not do things not enumerated. The Bill of Rights eventually morphing into something that protects us primarily from regressive State laws, is a very long story as to how we got there and wasn’t remotely the vision in 1788-1790.
The Founding Fathers would have had no issue with various gun regulations, and would frankly be surprised this was a “national issue”, they would expect the individual states would adopt gun regulations as appropriate. Note that in the time of the Founders many localities had strict gun laws, including some towns that actually banned visitors bringing guns into town limits. This is one of the things that Heller kind of missed and makes it really bad law from an originalist standpoint, in the very time of the Founders, the Founders had no real issue with local gun outright bans.
Well put. The section that details the protected classes is a good example. We’ve got the well-established ones “race, religion, sex”, the new ones “gender, sexuality”, but absolutely zero foresight on what additional protected classes should be, or any kind of forward thinking on how the concept of a future protected class should be reasoned about.
You forget that Jefferson pre-dates the concept of a (democratic) constitution. He came from a background of a monarch + Parliament, that government coming from the ashes of Oliver Cromwell’s Protectorate. You can’t appeal to the ‘nature’ of a constitution in this debate.
While the major points are a government without filibusters, supra majority veto and harder requirements to find things unconstitutional, I recognize this document would essentially make waging war impossible. If War Powers doesn’t include some kind of cover to ‘inhumane treatment’.
Constitution V2 seems to have been written to, in various ways, prevent the election of a new Donald Trump. The 4 years requirement of prior service would have ironically disqualified Herbert Hoover, Dwight Eisenhower and many pre-1900 Presidents.
Gets rid of marriage restrictions (Child Marriage?)
Does Article 1, Section 6 imply some right to earn interest on tax witholdings?
Strikes incapacity to serve logic in the current US Constitution.
One consequence of the economic intervention elements is a fundamental concession to sharing your financial details. Tax avoidance is a crime; abusing Freedom Dividend Mk II is a crime; I suspect that your income, financial worth and assets is going to be very visible.
And that’s the world this document seems to want. Sketchy businesses are the villains, and the laws greatly empower workers, taxmen, and those affected by externalities to act against them. Corporate personhood’s justification is not repeated, and while a public defender versus five star legal team would be possible, the public defender is not a law student and part time fry cook.
The article’s criticisms are valid. A lot of the ‘hardware’ here perhaps should be logical software. The Constitution should justify taxation and the economic well-being of its citizens; a wealth tax is a logical step in the direction of exercising these powers. This has happened once in our own constitution, and the occasion is a poor one–Prohibition. Constitution Mk 2 has several bouts of Prohibition style specific policy fiat, and this is not a great way to make a ruling document.
Yeah, generally speaking, constitution re-writes should be long on principles, statements of fundamental liberties and election processes and short on policy.
Policy by nature must evolve. Getting the election processes correct from the beginning gives a nation its best chance of electing people who will best formulate policy.
Nate Silver floated an idle tweet yesterday posing the hypothetical (paraphrasing) “if northeastern blue states negotiated a future secession from the nation, what kind of government would it (or should it) have?”
About a third of respondents decided to ignore the hypothetical in ways that we’ve seen here: “it’ll never happen!”
About half of the rest said that the new country’s constitution would probably resemble our current one, based on familiarity and inertia. Federalism, too, though I don’t see how that would work with only 13 states of vastly different sizes.
Most of the rest argued for variations of limited (or no) executive branches, unicameral legislature and proportional representation. Of course, I was one of those.
I’ve just re-read this thread, and there were quite a few objections raised (including by me), but I don’t think anyone here ignored the hypothetical and just said “it’ll never happen!”
Is…is this a whoosh? I mean…“13 states of vastly different sizes” is literally, exactly the origins of Federalism in the U.S. Uniting states of vastly different sizes is pretty much the point.
It’s impossible to interpret their meaning without referring to the nature of states (in the national sense) and armies at the time. The world of the 18th century, in terms of a nation’s ability to defend itself with militia and the perception of professional armies and the threat they posed to a democratic republic, was a very different one from today.
Oh, fighting the hypothetical happens all the time here.
And the poor workings of federalism is exactly the point. What it has mostly accomplished throughout the nation’s history is prevent majority rule and I think we should about be done with that nonsense.
Ok. but…not in this thread, on this topic, right? I’m just confused as to why you would say that a third of respondents in this other thread on Twitter ignored the hypothetical “in ways we’ve seen here” when in no one in this thread, on this topic, has actually done that.
Again, ok, but then…we know how Federalism would work with “only 13 states of vastly different sizes”.
Maybe I’m just confused by the way you phrased your points.
As to this point,
Well, maybe not Federalism, per se (one could design a federal system that amplified majority rule), but, yes, the particular Federal system set up by the U.S. Constitution does include brakes and restrictions on majority rule, by explicit design. It’s deeply frustrating when you’re in the majority and what you see as vitally necessary reforms get stymied, a bit less frustrating when you’re in the minority.
What I’m awkwardly (apparently) trying to express is that I believe our new nation of Atlantica should steer away from being a federalist republic. I would prefer that we be “one nation indivisible” and that any internal subdivisions be for administrative purposes only.
IMO the people currently living in the United States don’t have the kind of homogeneity you normally see in a unitary state. If we were to imagine an ideal system of government I think some significant devolution to regional authorities would be in order.