Challenge 6. Bill of Rights Fixes

Each of the topics discussed in the Bill of Rights Challenge might best be addressed by a constitutional amendment. Those topics are:

  1. Equality of all natural persons
  2. Freedom from discrimination
  3. Prohibition of torture
  4. Citizen’s right to healthcare, education, and the necessities of life
  5. Citizen’s right to privacy
  6. Restrictions on the use of eminent domain
  7. Voting rights for all citizens
  8. Clarification of the right to bear arms (Second Amendment)
  9. Distinguish between the rights of persons, of citizens, and of states
  10. Definition of citizens, natural born versus naturalized
  11. State and local rights and responsibilities
  12. Power of states to secede
  13. Fiscal Responsibility

All these amendments, taken together, could be proposed in one batch, just like James Madison introduced the amendments that ultimately became our Bill of Rights. So here are 13 new amendments for our joint consideration.

All of these except the Fiscal Responsibility Amendment follow from the challenges discussed in Part I. Therefore, only that proposed amendment merits a word of explanation. Both conservatives and libertarians have clamored for a federal balanced budget amendment for many decades. In their view, citizens have a fundamental right to expect their elected government to behave in a fiscally responsible manner, and yet they see only profligate spending and a refusal to pay for those expenditures. In their view, a constitutional amendment is needed to require the federal government to balance its books. I’ve included a version of a balanced budget amendment as New Amendment 13.

New Amendment 1: Equality of All Natural Persons

All natural persons are created equal, and are born with certain inalienable rights, and among these rights are life, liberty, and the pursuit of happiness.

New Amendment 2: Freedom from Discrimination

Discrimination against any person on the basis of sex, race, ethnicity, religion, or sexual orientation is prohibited.

Discrimination against any person on the basis of age, between ages 40 and 70, is prohibited.[1]

New Amendment 3: Prohibition of Torture

The United States does not practice or tolerate the use of torture. The intentional infliction of extreme pain upon any person for the purpose of obtaining information or for any other purpose is prohibited.[2]

New Amendment 4: Citizen’s Right to Healthcare, Education, and the Necessities of Life

Citizens of all ages have a right to basic healthcare. This includes physicians, hospitals, medicines, medical devices, reproductive services, and mental health services.

Citizens have a right to tax-supported public education, provided by the state in which each citizen resides.

Citizens have a right to the basic necessities of life – food, clothing, and shelter – sufficient to prevent death from starvation and exposure to the elements.

New Amendment 5: Citizen’s Right to Privacy

The Fourth Amendment to the Constitution prohibits unreasonable search and seizure. This provision includes the right to privacy.[3]

New Amendment 6: Eminent Domain

No citizen shall be forced to surrender private property for private gain; the principle and legal process of eminent domain shall only be used to serve a demonstrated public need.[4]

New Amendment 7: Voting Rights for All Adult Citizens

For all citizens who have attained the age of 18, no citizen shall be denied the right to vote in state or federal elections based on age, sex, race, ethnicity, religion, or sexual orientation; and no poll tax or other tax for voting may be imposed.

New Amendment 8: Clarification of the Right to Bear Arms

Section 1

This Amendment replaces Amendment 2 of the Constitution.

Section 2

For reasons of personal safety, hunting, and/or recreation, a citizen has the right to keep and bear personal weapons, including firearms appropriate to such purposes.

Section 3

A well-regulated militia being necessary to the security of a free state, the right of each of the several states to keep and bear arms shall not be infringed.

New Amendment 9: Rights of Persons, of Citizens, and of States

This Constitution establishes rights of natural persons, of citizens, and of states. The Federal Government and the several states may also recognize rights of other legal entities, such as corporations, partnerships, trusts, charities, and benevolent associations; but such rights are not constitutionally guaranteed.[5]

New Amendment 10: Definition of Citizens

This Constitution recognizes two categories of citizens: a natural-born citizen and a naturalized citizen:

  • A natural-born citizen is any person
    • Who was born within the United States, its territories, or possessions, or
    • Whose biological mother or father was an American citizen at the time of the child’s birth. To retain natural-born citizenship under this provision after one’s 21st birthday, a natural-born citizen not born in the United States must notify the Secretary of State of the United States, between his/her 18th and 21st birthdays, of his/her intent to remain an American citizen.
  • A naturalized citizen is any person who becomes an American citizen in accordance with the federal law regulating the naturalization process.
  • With the sole exception of eligibility to hold the office of president of the United States, which requires the president to be a natural-born citizen, no distinction shall be made between natural-born and naturalized citizens.
  • No government on earth has the power to take citizenship away from any U.S. citizen.

New Amendment 11: States’ Rights

Section 1

The federal government may delegate any of its powers to the several states. A collection of states may delegate any of their powers to the federal government. A collection of states may also create a public agency to jointly execute certain state powers, and may request the federal government to participate in or support such public agencies, but without conceding those powers to the federal government.[6]

Section 2

A state statute takes precedence over a federal statute, provided that the state statute

  • Does not conflict with the Constitution,
  • Addresses matters wholly within the state’s jurisdiction,
  • Does not adversely affect other states or citizens of other states, and
  • Is approved by a two-thirds majority of that state’s voters in a referendum on that statute.

New Amendment 12: Power of States to Secede

Any state may, by a two-thirds vote of both its citizens and its legislature, give notice of its intention to secede from the Union. If approved by two-thirds of the people in a second plebiscite, held not less than five nor more than seven years after the initial notice to separate is given, then that state shall notify the Secretary of State of the United States of its decision to secede. That state and the United States will then have three years in which to negotiate the terms and conditions of their separation, after which that state will no longer be a part of the Union.

New Amendment 13: Fiscal Responsibility

Section 1. Balanced budget

Expenditures from the U.S. Treasury authorized by Congress for any fiscal year shall not exceed revenues received into the U.S. Treasury during the previous fiscal year. Exceptions to this expenditure restriction, limited to one fiscal year at a time, are permitted due to a financial exigency declared by the President and approved by Congress, or for any of these reasons:

  • To pay for a war, properly declared by Congress, or during an invasion of the United States by a foreign power;
  • For emergency economic relief during a recession/depression, defined as three consecutive quarters of negative economic growth or a national unemployment rate in excess of 10%;
  • For emergency services in response to a natural disaster at home or abroad; or
  • For long-term infrastructure projects, financed over time.

Section 2. Military expenditures

Total military expenditures of the United States, including the Armed Forces and all other military expenditures as well as foreign military assistance,

  • shall not be less than the military expenditures of any other nation not at war,
  • nor shall such expenditures exceed, except in a time of war declared by Congress, the greater of
    • three times the military expenditures of the nation other than the United States with the greatest military expenditures, or
    • the sum of military expenditures from the five nations other than the United States with the greatest military expenditures.

Military expenditures in support of a war declared by Congress or any other military action short of war must be specifically approved by Congress within 60 days after such military action commences, and then for only one fiscal year at a time.

Section 3. Foreign aid

Expenditures for foreign aid and for the United Nations, not including military assistance, shall not be less than 2% nor more than 5% of the total federal budget.

Section 4. Exceptions

Congress shall have the power, by a two-thirds vote in both chambers, to override the provisions of this amendment, but for only one fiscal year at a time.

[1] Certain laws may require a minimum age for performing certain activities, such as signing a contract, driving a car or boat or airplane, getting married, and holding public office. Other laws may mandate a retirement age. But any laws dealing with age must not discriminate between the ages of 40 and 70.

[2] Based on all available medical and scientific evidence, torture is ineffective in producing operational intelligence, and its use as punishment has long been outlawed by the 1787 Constitution. This provision incorporates into the Constitution both American law and international conventions on the absolute prohibition of the use of torture, especially the Geneva Conventions of 1949 and Additional Protocols of 1977, treaties to which the U.S. is a signatory.

[3] A right to privacy is inferred by the 1787 Constitution, Amendment 4, and has been so interpreted by the Supreme Court. Adding it to this provision in Constitution II makes this right explicit.

[4] Both conservatives and liberals, from time to time, have condemned the abuse of eminent domain. This provision states clearly that eminent domain may only be used for a public benefit.

[5] This provision clarifies that the Constitution guarantees the rights of persons, citizens, and states, but not of corporations or other legal entities – whose rights may be recognized by law, but are not guaranteed by the Constitution.

[6] This notion of federalism has existed in practice for many years; this provision makes it explicit in the Constitution.

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