[incorporated into Part III] 6. Bill of Rights Challenge

Empower Citizens; Empower States

Often bitter debates took place between the federalist and anti-federalist forces before the 1787 Constitution was ratified. Anti-federalists held that the Constitution as written failed in two major respects: it lacked sufficient protections for individual liberties, and it did not impose strong enough limitations on the power of the federal government. The anti-federalists finally gained assurances from those in favor of the new Constitution that, as soon as the new Federal Government became operative, the anti-federalists would be able to recommend the kinds of changes that they insisted on.

Accordingly, during the very first Congress elected under the newly-ratified Constitution, James Madison (who had been elected a member of the House of Representatives from Virginia) introduced a series of Amendments; the House approved 17 of these Amendments and sent them over to the Senate, who approved 12 of them and sent them to the states in August 1789. The states ratified 10 of these 12, which became effective in December 1791.

These first ten Amendments to the Constitution, which became known as the Bill of Rights, lay out fundamental rights that the Constitution guarantees. Subsequent constitutional amendments guaranteed voting rights to former slaves, to women, and to all citizens over age 18.

Several Supreme Court decisions and federal laws have expanded on some of our basic rights. A few examples:

  • A Supreme Court decision interpreted the 2nd Amendment as guaranteeing gun rights to individual citizens.
  • Another Supreme Court decision interpreted the 1st, 3rd, 4th, 5th, and 9th Amendments as implicitly recognizing the right to privacy.
  • A federal law, the Voting Rights Act, expanded voting rights for all citizens but especially for racial minorities.

However, Congress can alter laws. and court decisions can be overturned. Therefore, to secure these and other individual rights for present and future generations, we need to amend the Constitution. The challenge lies in the fact that, without such constitutional guarantees, our Bill of Rights remains somewhat incomplete.

Several citizen rights exist in various states but not at the federal level, including Initiative, Referendum, and the right to amend the constitution. States do not have the right to supersede a federal statute or to secede from the Union.

Again, we must remember that in 1787 the authors of the Constitution had limited experience with the rights of individual persons or citizens, so we should not criticize them for not including some of these rights in the original document. They feared the tyranny of the mob almost as much as they feared the tyranny of a king, and with good reason. The Jacobite Rebellions in England (ending in 1746) were still fresh in their consciousness. Hence our Founding Fathers trusted Congress more than they trusted a president, and they trusted state legislatures more than they would ever trust the people to protect the freedom of all citizens and freedom from either form of tyranny.

We have come a long way since the 18th century. Today we have relatively more faith in the people though we retain a somewhat jaundiced view of government and especially of professional politicians. The trick is to devise a system of government that protects both individual and collective rights while limiting the ability of government to trample over those rights.

One principal piece of a solution is to divide governmental functions into three parts: make laws, enforce laws, and interpret laws; and then to assign these three basic functions to three co-equal branches of government – Congress, the president, and the Courts. A second piece is to divide power between the Federal Government and the state governments, The Framers implemented both of these pieces fairly well. But the third piece is to carve out a special role for the people, which the Framers did only in part. We the people have been clamoring for more power ever since.

All the items presented in the Bill of Rights Challenge relate in some way to the empowerment of people and of the states and/or to limiting the power of the Federal Government. These are all stated as “challenges”, because none of them are fully realized in our Constitution.

Equality of Persons; Freedom from Discrimination; Freedom from Torture; Right to Privacy

  • The Declaration of Independence states unequivocally:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

However, this fundamental assertion did not find its way into the Constitution.

  • Congress has passed laws prohibiting discrimination on the basis of sex and sexual orientation, and it has outlawed age discrimination in employment after age 40. But these prohibitions are not in the Constitution. Other forms of discrimination are partially prohibited, such as discrimination based on race, ethnicity, religion, and national origin.
  • While the 8th Amendment to the Constitution outlaws “cruel and unusual punishments”, the Constitution does not forbid the use of torture for purposes other than punishment. Some have argued that torture used for the purpose of gaining information from a known or suspected traitor or spy or terrorist is not a punishment but rather an effective interrogation device justified by military necessity during war or by the need for public safety during periods of civil unrest or threatened terrorist activity. Others have argued that torture is always inhumane, reduces the government that practices torture to the same level as the terrorist, and furthermore is ineffective at gaining actionable intelligence. Social science research, testimony from victims of torture, and the historical record largely support the latter argument. Most modern societies have abjured the use of torture for any purpose whatsoever.
  • In a landmark 1965 decision (Griswold v. Connecticut), the Supreme Court found a right to privacy implicit in the 1st, 3rd, 4th, 5th, and 9th Subsequently the Court based several significant decisions at least in part on that 1965 decision including the right to an abortion (Roe v. Wade, 1973) and the ban on sodomy laws (Lawrence v. Texas, 2003).

Rights to Healthcare, Education, and the Necessities of Life

If we can argue that all of us have the right to “life, liberty, and the pursuit of happiness”, then it follows that we as American citizens have the right to those basic necessities that sustain life and that allow us to pursue happiness. This includes at least the provision of healthcare, education, food, clothing, and shelter:

  • Healthcare is needed to sustain life itself; without it, citizens die of disease prematurely and unnecessarily.
  • Education is needed to prepare citizens for the pursuit of happiness; without it, a citizen’s prospects are severely limited.
  • Without food, citizens starve.
  • Without clothing and shelter, citizens freeze, suffocate, or die from exposure.

There are limits to what governments can and should provide or guarantee. We do have a free-market economy, a capitalist economic system, which encourages entrepreneurship, investment, invention, creativity, risk-taking, and hard work.[1] Those things deserve to be rewarded. However, the cards should not be so stacked against an individual, especially when the circumstances are beyond that individual’s control, that “life, liberty, and the pursuit of happiness” are impossible.

We need to also mention that our system of federalism allows us to construct a system of national, state, and mixed national-state programs that address these challenges. No one should assume, for example, that if a citizen has a constitutional right to something, the federal government must perforce provide it to everyone for free.

Voting Rights

The Constitution guarantees the right to vote for all citizens regardless of race or color (15th Amendment), for all women (19th Amendment), and for citizens over age 18 (26th Amendment). We also eliminated the poll tax (24th Amendment). However, some states have enacted other voting restrictions in lieu of the poll tax but with the same effect. States justify these restrictions by their desire to prevent voter fraud, but the true motivation is the desire to reduce voting by certain categories of potential voters, especially minorities. One could argue that the proponents of voting restrictions would be better served by trying to convince voters of the rectitude of the proponents’ policies and then encouraging them to vote for their candidates, rather than by placing roadblocks in the way of their voting. But regardless of the motivation, the effect of voter ID laws has been to reduce voting among the targeted populations.

We should be much more dedicated to increasing voting rather than depressing voter turnout. The fact that the United States has one of the poorest voter turnout rates among the Western democracies[2] is certainly cause for concern.

Clarification of 2nd Amendment

Here is the Second Amendment to the Constitution in its entirety: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This Amendment became part of the original Bill of Rights when it was ratified in 1791.

For 217 years, the Second Amendment was interpreted by federal courts as guaranteeing the right of each state to maintain its own militia (or national guard, as we now call it). But in 2008, in Heller v. District of Columbia, the Supreme Court held that the Second Amendment guaranteed each citizen the right to possess a firearm for traditionally lawful purposes, such as self-defense within the home. This decision invalidated a District of Columbia law that had outlawed handguns all together.

People still argue vehemently over the Heller decision – from gun-rights advocates who argue that the Second Amendment prevents the government from imposing any limits whatsoever on personal weapons, to gun-control advocates who believe that Heller was wrongly decided and should be overturned, or that the Heller decision still allows regulation of firearms, just not their outright prohibition. The challenge here is to come up with a scheme that protects the right of each state to maintain a militia, the right of every individual to protect himself with a firearm, and the right of all citizens to protect themselves from totally unregulated firearms.

Distinguish Between the Rights of Persons, of Citizens, and of States

We have entertained many arguments over constitutionally-guaranteed rights, not the least of which has been the argument over whether a particular constitutionally-guaranteed right pertains to all persons within the jurisdiction of the United States or only to citizens of the United States. For instance, do visitors to the US or permanent residents of the US have a right to free speech, free exercise of religion, and freedom of assembly – or do those right only attach to American citizens? Can anyone in the country possess a firearm, or only a citizen? Does anyone accused of a crime within the US get a jury trial, or only citizens? The challenge is that the original Bill of Rights does not distinguish between citizens and other persons who fall within the jurisdiction of the US.

A similar challenge exists in delineating the rights of people versus the rights of states.

Definition of Citizens, Natural-Born Versus Naturalized

Recent political controversies have centered on questions about the definition of citizens, and especially about the distinction between a natural-born citizen (born in the US or born of American parents while outside the US) and a naturalized citizen (an immigrant who subsequently obtained US citizenship). While the Constitution does not define any of these terms (citizen, natural-born citizen, or naturalized citizen), it does require that the president be a natural-born citizen. So the challenge is to clarify what those terms mean.

State and Local Rights and Responsibilities

States, localities, and individual citizens should have the right to act, alone or in consort with each other, on matters pertinent to their local interests. Gradually, too many rights of individuals and of states have been taken over by the Federal Government, usually with unsatisfactory results. Examples abound, but just a few will be cited here:

  • In the natural order of things, K-12 education should be the responsibility of states, parents, and local school officials. It is difficult to argue that the Federal Government needs to be involved in K-12 curriculum, school policies, scheduling, financing, and so on. Does Washington really have any interest in deciding whether schools in Maryland begin after Labor Day or before, or whether Florida chooses to teach cursive writing? On the other hand, states should be able to join forces when they so choose. Common Core is an example of a state initiative to establish uniform curriculum guidelines, but then the Feds got involved by encouraging states to adopt Common Core, and the US Department of Education funded two companies to develop tests for measuring student achievement of the Common Core standards. The result, both educationally and politically, is a mess. A better result might be achieved by removing the Federal Government from primary and secondary education entirely, while allowing states who so choose to form an association to set common standards, achieve common goals, conduct educational research, and compete for funding opportunities.
  • Today most Americans agree that traffic regulations belong at the state level. Are you old enough to remember the 55 mph national speed limit? The US Department of Transportation even ran a national ad campaign, with the slogan “Stay Alive – Drive 55”. As a partial response to the Arab oil embargo in 1973, the 55 mph National Maximum Speed Limit was passed in 1974 and signed by president Nixon as a way of both conserving fuel and saving lives. Congress amended the law to 65 mph in 1987 and repealed it all together in 1995 – one of the most popular acts of the new Republican Congress elected in 1994. So why didn’t the national speed limit work? The law was both ineffective and unenforceable. Too many states simply did not buy it for one simple reason:  By no stretch of the imagination do drivers in New York or policy wonks in Washington have an interest in how fast trucks are permitted to drive in Montana. Period, end of story.
  • Our current laws recognize that alcohol should be controlled at the state and local level. We experimented with a national prohibition on alcohol, adopted by the 18th Amendment to the Constitution in 1919, then repealed by the 21st Amendment in 1933. Yet today, having learned absolutely nothing from our failed experiment with Prohibition, we treat other intoxicants differently. We have an abundance of conflicting state and federal laws dealing with medical marijuana, recreational marijuana, and other drugs. It’s hard to see why I as a resident of Maryland should give a hoot as to whether the folks attending a Super Bowl party in Denver are getting high on pot rather than Coors Beer. If this is a matter of concern for the citizens of Denver or the state of Colorado, they can deal with it – but please leave me out of that discussion.

Most common crimes are committed locally, with local perpetrators and local victims. Therefore, in our federal system of government, most criminal laws are state laws and local ordinances. The Federal Government has no discernible interest in those matters. For the most part, federal crimes involve multiple state jurisdictions or international actors, such as bank fraud or smuggling or kidnapping.

Attitudes of ideologues and of party activists have long argued over states’ rights versus federal prerogatives, and it’s interesting to see historically how the tides and attitudes have shifted over time. In the early days of the republic, for example, slave states wanted the Federal Government to enforce their property rights in non-slave states by forcing those states to return fugitive slaves to their slave-state owners, while anti-slave states believed that their states had the right to prevent such extraditions. Later, as the abolitionist movement grew, the slave states became advocates for states’ rights, and abolitionists thought the Federal Government should have the right to outlaw slavery everywhere. Though of less import than slavery in the 19th century, the same argument has occurred in our own time concerning undocumented aliens, sanctuary cities, voting rights, marijuana laws, abortion rights, gun control, and same-sex marriage. In each of these cases and many others, advocates for one side or the other have alternately claimed that federal jurisdiction should be paramount over state statutes, or that states’ rights should be protected against federal intrusion – all depending on who then controls the Federal Government versus who controls a state government.

In my view, the Federal Government should enforce the rights and privileges of all American citizens enumerated in the Constitution, including the laws Congress has passed to implement those rights. Over and above that, the question should be on the locus of control, effect, and payment: Who is in a position to control an activity, who is affected by that activity, and who must pay for it. Air traffic control, for example, must be a federal matter, since most flights go over state boundaries and conflicting state laws would be a complete mess. Regulations on food and on pharmaceuticals must be national, since these products inevitably involve interstate commerce. But states should be able to set standards for locally-grown and sold vegetables, for high school graduation requirements, for highway speed limits, and for local building codes.

One challenge that always arises in these discussions is the uneven wealth among the 50 states. A solution to that challenge, occasionally employed by Congress, is federal block grants. We do some of this with Medicaid, disaster relief, and Interstate Highway System projects, but we do not do nearly enough of this type of creative funding and federal-state partnerships in my view. Congress can set minimal guidelines that states must follow to qualify for block grants, with the amount of such grants based on the unique needs of each state; but the actual regulations and procedures are left to the states. Perhaps the authority of Congress and of the several states to act in consonance on funding solutions needs to be spelled out in the Constitution.

The challenge going forward will be to reconsider federal laws and regulations with a view to relegating local matters back to the states, as is mandated in principle in Amendment 10 to the Constitution, to wit: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Power of States to Secede

Some will say that we tried this once in 1861, and it did not turn out well.

In response, I would ask this question: Why should the decisions of 13 state conventions in the 1780’s bind all the states and all the citizens of all those states forever? First, none of us were alive when the Articles of Confederation were adopted (which is where the notion of a “Perpetual Union” of the states was articulated). Second, 37 of the 50 states now in existence did not exist when the Constitution was adopted. Third, this perpetual union idea appears nowhere in the Constitution.

Let me repeat that: The idea that no state can secede from the Union is NOT in our Constitution.

However, this idea IS in the Articles of Confederation from 1781, written and adopted before the Revolutionary War was over. In fact, the complete title of that agreement is “Articles of Confederation and perpetual Union between the states of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia.”

I would also posit (though I cannot demonstrate this) that leaving this “perpetual union” clause out of the Constitution was not an accident. The Constitution’s Framers went over the “Articles of Confederation and perpetual Union” meticulously, and retained those provisions which seemed to work well and discarded or replaced others. So why was it not included in the Constitution? Did the Framers realize that future generations might want to rethink their commitment to the Union?

This idea that the “Perpetual Union of the states” need not be perpetual has not been seriously debated since the Civil War, which for most Americans settled that matter once and for all. However, if we think about a system of empowering the people and the states, then the notion that a state might choose to opt out does have merit. The question is this: Why should the commitment to a perpetual union, made by a small, wealthy, privileged group of white men in the thirteen original states bordering the Atlantic Ocean, over two centuries ago, forever bind the people living in, for example, Texas or California (which at that time belonged to Spain), Louisiana and all the states that derived from the Louisiana Purchase of 1803 (which belonged then to France), or Alaska (which belonged to Russia)? Why should that 18th century decision be binding on anyone in the 21st century?

Although we may not foresee the circumstances today that would propel the citizens of a state to make such a choice, is it fair to preclude that choice for now and forever more?

We exist as a single nation, and we function as a single entity. Among other results of our Civil War, the term “United States” became a singular noun rather than a plural noun. Clearly the ties that bind us together are strong. We depend on each other for so much, from a common military to a common currency and financial system to a fully integrated economy, transportation system, energy industry, and commercial sector.

Nevertheless, if some state or states among us conclude that they would be better off as a separate nation, then there ought to be a procedure short of civil war of allowing them to accomplish that; and that procedure should be spelled out in our Constitution. Secession should be difficult, much more than a passing fancy, and chosen deliberately over some period of years; and it should require adequate notice to the other states to adjust – but it should be possible.

Power of the People for Initiative and Referendum

The political process known as “Initiative” gives citizens of a state the constitutional right to propose a state statute (and in some cases an amendment to the state constitution) through a petition, bypassing the state legislature. After a certain percentage of registered voters have signed a petition, the proposed law or constitutional amendment appears on the next general election ballot, where voters can accept or reject it. (Some states provide for an intermediate step, in which the proposal is submitted first to the legislature, where the lawmakers can deal with it, and only if the legislature ignores or rejects the proposal does it then go the voters.) Beginning with South Dakota in 1898, 24 states now include some form of Initiative in their state constitutions. The most recent state to adopt the Right of Initiative was Mississippi in 1992.

The term “referendum” simply means a ballot measure. All state constitutions include a “legislative referendum”, which is a ballot measure submitted to the voters by the legislature. Typically, state constitutions require certain measures to be approved by the voters, such as constitutional amendments, bond issues, or tax increases. Some state constitutions also provide for discretionary items, in which the lawmakers just decide to punt on an issue and let the voters decide.

But a legislative referendum is not the type of referendum we are talking about here. Rather, we want to discuss another type, which could be called a “popular referendum”. Like the Initiative, a popular referendum gives citizens the ability to circulate a petition to repeal an act of the legislature. In the typical procedure, after the legislature passes a new law, people who disapprove of that law have a limited amount of time (usually 90 days) in which they can “petition the bill to referendum”. If they gain sufficient signatures on their petition, then the new law goes to the voters for an up-or-down vote at the next election, and in the meanwhile, the new law does not go into effect. 24 states have the popular “Referendum” in their state constitutions – mostly the same states as have the “Initiative”.

In sum, roughly half the states have Initiative and Referendum. States began experimenting with this more than a century ago, and nothing terrible has happened as a result. Therefore, isn’t it time that we incorporate these tools of citizen empowerment into the US Constitution?

Power of the People to Amend the Constitution

As has been mentioned elsewhere in this paper, the Founding Fathers trusted neither the King nor the people en masse – in their view the tyranny of the mob was no better than the tyranny of an autocrat. That is at least a partial explanation for the very limited power of everyday-joe-citizens in the Constitution. This is pointedly true with respect to amending the Constitution.

Article V of the Constitution specifies the two procedures that can be followed to propose amendments to the Constitution: 1) an amendment can be proposed by two-thirds of both Houses of Congress, or 2) two-thirds of the state legislatures can require Congress to call for a convention that will propose constitutional amendments. In either case, Congress then submits the proposed amendments to the states, specifying whether these amendments will be considered by state legislatures or by state conventions. Proposed amendments that are ratified by three-fourths of the states (either legislatures or conventions, as specified by Congress) become part of the Constitution.

Note that regular-old people have little say in any of this. That is most certainly a challenge.

[1] Interestingly, the original Constitution does not mention capitalism, private property, or free markets. The term “private property” does appear in the 5th Amendment to the Constitution in the clause “nor shall private property be taken for public use, without just compensation.” Article I Section 8 of the Constitution gives Congress the power to protect the rights of authors and inventors to benefit from their writings and discoveries, so this clause suggests a right to private property. Nevertheless, I find it most interesting that the foundational document of the greatest capitalist nation on earth does not discuss the role of free enterprise at all.

[2] Franklin, Mark (2004). Voter Turnout and the Dynamics of Electoral Competition in Established Democracies since 1945. Cambridge University Press, Table 1.1, p.11.

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