Living Constitution

[LadySmith]

A comment from KD5NRH in the "If Your Employer Gave You A Year Off" thread made me wonder...

KD5NRH wrote:

…I could use the time to tutor the Founding Fathers on how to write a Constitution more forcefully.

http://www.armedpolitesociety.com/index.php?topic=19075.0

...How would you write the Constitution, particularly the 2nd Amendment, so that its meaning would be less open to misinterpretation now and in the future?

[digitalandanalog]

I wouldn't reword the Constitution...

I would make the future generations have the vocabulary necessary to reading it properly.

The inability of modern readers to decipher the "language of old" is most of the problem. Of course being smart is out these days...so, good luck.

[Uncle Bubba]

I wouldn't reword the Constitution...

I would make the future generations have the vocabulary necessary to reading it properly.

The inability of modern readers to decipher the "language of old" is most of the problem. Of course being smart is out these days...so, good luck.

Add in a working knowledge of history so they'll know why the FFs wrote it as they did.

[S. Williamson]

Re-word like so (barring the possibility of digitalandanalog's choice):

1 ) There shall be no law preferring an establishment of any particular religion, or prohibiting the free exercise thereof; or restriction of any word whether written, spoken, read, heard, or thought; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

2 ) Well-maintained armed forces being necessary to the security of a free people, the right of the individual citizen to keep and bear arms shall not be violated in any manner.

3 ) No soldier shall, neither in time of peace nor in time of war, be quartered in any house without the consent of the Owner, except in a manner to be prescribed by law.

4 ) The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. No Warrants shall issue except upon probable cause supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized.

5 ) No person shall be held to answer for a capital crime unless on presentment or indictment of a Grand Jury, except in cases arising in military forces, or in the organized Militia, when in actual service in time of War or public danger. No person shall be subject for the same offense to be twice put in jeopardy of life or limb. No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. No private property shall be taken for public use without just compensation.

6 ) The accused shall have a speedy and public trial in all criminal prosecutions by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

7 ) In suits at common law, the right of trial by jury shall be preserved. No fact tried by a jury shall be otherwise re-examined in any Court of the United States than according to the rules of the common law.

8 ) Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

9 ) The mention of certain rights in the Constitution shall not be construed to deny or disparage any others retained by the people.

10 ) The powers not delegated to the United States Federal Government by the Constitution, nor prohibited by it to the States, are reserved to the States or the people, respectively. Each state retains its sovereignty, freedom, and independence. Each state retains every power, jurisdiction, and right. (took the last part more or less directly from the Articles of Confederation)

For the most part, modern punctuation use is all I would change, and add clarification on key points.

Edit:

Add in a working knowledge of history so they'll know why the FFs wrote it as they did.

Isn't that already there, AKA the Declaration of Independence?

[griz]

If you went back in time and told them that 200 years later people would wonder if they meant to allow individuals to own arms they would laugh and say that if what they wrote didn't cover it then nothing would.  And I think they would be right.  If you referenced a "right of the people"  in a document that listed individual rights, and said "shall not be infringed", that would seem very clear.

If you wrote "A well read population, being necessary to the education of a free State, the right of the people to own and read books, shall not be infringed" do you think they would question the individuals right to buy a book or deduce that libraries are permitted?

[S. Williamson]

Yes, if the First Amendment didn't already specifically protect it.

[DJJ]

You guys have it wrong: the problem is not an inability to understand the Constitution and interpret it correctly; it's the unwillingness to do so (in short, it's not "can't", it's "won't"). Tell the FF that they overestimated peoples' honor, not their literacy.

[grampster]

Two thoughts:  Paramount on the minds of the founders were individual liberty, limited government and the fear of factionalism.  If one approaches the Constitution with those 3 thoughts in mind, the words and intent become clear.

[charby]

When I think of a living constitution I think that as times changes the orignal context still applies. Internet came into use 200 years after the consitution was drafted, so the 1st amendment applies. Repeating firearms came into use 50 or so years after the Constitution was drafted, so the 2nd amend applies to them.

I don't see it as something that can have the meaning changed because people feel that wasn't the oringinal intent of the framers or technology changed drastically since 1787.

[AZRedhawk44]

You guys have it wrong: the problem is not an inability to understand the Constitution and interpret it correctly; it's the unwillingness to do so (in short, it's not "can't", it's "won't"). Tell the FF that they overestimated peoples' honor, not their literacy.

QFT.  Nothing more to say.

[RevDisk]

A comment from KD5NRH in the "If Your Employer Gave You A Year Off" thread made me wonder...

...How would you write the Constitution, particularly the 2nd Amendment, so that its meaning would be less open to misinterpretation now and in the future?

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

All power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness. For the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such manner as they may think proper.

The right of the citizens to bear arms in defense of themselves and the State shall not be questioned!



These are the 'Inherent Rights of Mankind', 'Political Powers' and 'Right to Bear Arms' sections of the PA Constitution, as defined in Article 1, Declaration of Rights.  In the PA Constitution, the Declaration of Rights comes first and foremost.  They are not amendments, they are the core of our Constitution.   I happen to like it that way. 

If I could wave a magic wand and edit the Constitution (I would never want such an ability), I'd recommend rolling those three sections into one amendment and ADDING them to the Second Amendment. 

[Jamisjockey]

Two thoughts:  Paramount on the minds of the founders were individual liberty, limited government and the fear of factionalism.  If one approaches the Constitution with those 3 thoughts in mind, the words and intent become clear.

QFT.

The constitution wasn't perfect, and neither was the BOR.  The problem is that those who espouse a "living" constitution are usually progressives not thinking in the context Grampster has.

[Ryan in Maine]

I wouldn't be able to write it due to an overwhelming temptation to infuse it with ridiculous amounts of sarcasm and a general aura of superiority towards people who don't respect the original.

[Balog]

There is no possible way to make a document so clear it cannot be wilfully misinterpreted.

[Uncle Bubba]

There is no possible way to make a document so clear it cannot be wilfully misinterpreted.

Ain't that the truth. Read something that a team of lawyers has ginned up, having made every effort to make it "clear and precise" according to their lawyerly lights.

[Uncle Bubba]

Add in a working knowledge of history so they'll know why the FFs wrote it as they did.

Edit:Isn't that already there, AKA the Declaration of Independence?

You must've misunderstood what I meant.

Not enough people have enough of a grasp of history to understand the correlation between the two documents.

Whether they couch it in the same terms or not, far too many people have the attitude I heard a Gen-Xer in his mid-twenties spout a few years ago: "Nothing that happened before I was born can possibly have any relevance to my life." Everything that's happened before you are born has relevance to your life in one way or another.Little interactions lead to bigger interactions, etc. Something like the Butterfly Effect, in a way. just not as direct.

Or the punk I went to high school with who bitched about having to take a history class because "...we don't have to take a future class!" I tried to explain to him that history class is your future class, but he wasn't having it.

Then there are others who do not, can not, or will not understand that the people who lived before us were just like us. The lived and felt as we do. What we have that they did not is a broader and deeper knowledge in some areas, and our technology. But they had technology, too, and in their time as in ours it was considered the epitome of mankind's advancement.

Not enough people know enough about history, or care enough to learn it, to know that what to them is a no-brainer (everybody has a right to free healthcare) has been shown in the past - and sometimes more than once - to be brainless (when you subsidize anything the price goes up, eventually the system collapses but not before a long decline in quality). Witness also the number of people who claim that the 2nd Amendment "clearly" applies to an organized militia only. Had they a knowledge of history they would know that the Federalist Papers spell out clearly what the FFs meant with the 2A and the rest of the document.

All I can do is teach my children to appreciate the history of mankind. Hopefully that will be enough to make a difference for the better in their lives, and then in their childrens' lives, and so on. Maybe someday one of them will use it to make a difference for the better in the lives of the rest of humanity.

[KD5NRH]

...How would you write the Constitution, particularly the 2nd Amendment, so that its meaning would be less open to misinterpretation now and in the future?

Step one would be to put some real teeth behind it: right up front, define any attempt to subvert or disregard Constitutional protections other than by the specific Article V Amendment process as a crime equivalent to treason, with the same penalties, and require swift handling of all such matters by the courts.  Make it dangerous enough that fewer politicians would be willing to risk trying to abuse loopholes.

Eliminate the need for incorporation questions by making the Amendments in the Bill of Rights specifically applicable to all levels of government.  Ditch the unnecessary explanation in the Second Amendment: the other Amendments don't give reasons, and anyone wanting to know the reasons can read the Founders' other works on the subject.

Take them a current copy, with all the extra Amendments, so they can see what later generations think they've missed, and either propose it for inclusion from the start, or preclude it with a more fitting version. 
For example, try for language prohibiting any unelected office (such as any Cabinet post) from being in the Presidential succession at all.  Secretary of State and Secretary of Defense (assuming, reasonably, that the simultaneous incapacity of the President, VP, Speaker of the House, and President Pro Tempore of the Senate would result from some sort of attack) are the only Cabinet posts that even make sense for succession, disregarding the fact that none are chosen by the people.


(Odd bit noted while checking sources: the 25th Amendment's Presidential succession has been invoked three times since 1980, and all started with the President's colonoscopy.  (Reagan in 1985, and GW Bush in 2002 and 2007)  There's got to be a good punch line for that somewhere.)

[MicroBalrog]

One thing people here forget is the Commerce Clause. It would need to be reworded somehow to avoid a Wickard or Raich sort of scenario.

[KD5NRH]

One thing people here forget is the Commerce Clause. It would need to be reworded somehow to avoid a Wickard or Raich sort of scenario.

Not completely forgotten; I would have defined the circumstances leading to Wickard v Filburn as an "attempt to subvert or disregard Constitutional protections."  Though in retrospect, I agree that something more specific would be good to have.

[MechAg94]

It seems I remember hearing about FF who thought the Bill of Rights was unnecessary and protected only certain rights when there are many others. Imagine where we would be if the Constitution did not have the Bill of Rights?