Nothing's perfect
Instead of talking about politics, I'd like to post a few ideas for improving our government. This list focuses on the federal government, and specifically, on changing the Constitution. I revere the Constitution as one of the most important documents in history. It is inspiring to me. I keep a framed copy in my office, along with the original Bill of Rights.
But that is not to say it is perfect. We as a people continue to change and grow, and our governing documents have to keep pace or become obsolete. Courts must interpret the Constitution in light of the times we live in, but we do not want our courts to be overly involved in creating our laws. That is what our elected representatives are for. So we owe it to the courts to provide them with a constitution that reflects what we want. Let's not ask them to read too much into it.
So here are a few changes I'd like to see.
First, direct election of President and Vice-President by popular vote. The president represents the people as our executive. So let the people elect him or her.
Second, require an instant run-off election process for all Congressional and Presidential elections. We complain that our elected representatives cater too much to their own political parties, but our election process makes this inevitable. Assume that the major parties act rationally and select candidates in the primary process to represent the party on the presidential ballot who fall somewhere near the middle of the spectrum in that party's ideology. Each party makes rational compromises and selects a candidate who is not too far to any extreme within that party's basic platform. If one party is generally to the left and one party is generally to the right, each party will select a candidate who is, at best, on the fringe of the mainstream. One possible solution is open primaries where the top vote-getters, regardless of party, end up on the ballot. The problem with this is it violates the Constitutional freedom of association - Democrats or Republicans should not be forced by the state to let non-members vote in their selection process. It is also problematic because as a practical matter, the major parties will simply institute pre-primary primaries to make sure that there is only one of them in the main primary, and we'll end up where we started. Instead, I favor instant run-offs. This enfranchises third-parties and makes them viable. Now, I'm not a fan of any of the third parties currently out there. But I do believe that if we made third-party votes meaningful as more than mere spoilers, we will see better parties all around.
Third, establish a right of privacy. There isn't one. There ought to be. Some courts have read one into the Constitution. There is currently a little debate among Constitutional scholars about whether under current interpretation the Supreme Court has read a right of privacy into the Constitution. Past cases have held there is a right of privacy implicit in the Constitution - the "penumbra" theory. This theory holds (or held) that the rights enumerated in the Bill of Rights and the Civil Rights Amendments all fall within the penumbra cast by an implicit right to privacy. Roe v. Wade expressed this theory and based much of its holding on it. Later courts have backed away from the penumbra theory, and some have held there is no right of privacy. Again, my thinking is, let's not ask the courts to do more than is fair. It is not fair to ask the Court to try to sift the tea leaves of the Constitution to find a right of privacy in there. Most people believe they already have one, and I think most people want one. So let's make it official. Something simple: "The right of the people to privacy in their homes and personal affairs shall not be abridged."
Fourth, repeal and replace the 2nd Amendment. Is there an individual right to keep and bear arms? The Supreme Court has repeatedly said no. The NRA, and a lot of rational people tend to think that's exactly what the 2nd Amendment does. The framers came up with the ridiculous language of the 2nd Amendment as a compromise to avoid confronting the issue. Did they really want to make sure that if the people got fed up with what they perceived to be a tyrannical government, they could legally take up arms against it? Some did. Some didn't. We hope the Constitution itself makes unnecessary such an eventuality by providing plenty of checks and balances and room for change. And modern reality is, even an armed populace could not stand up against a tyrannical government backed by our military. In Revolutionary times, an armed citizen was no different than an armed soldier. The army might have cannons, but that was the extent of their advantage. Today, with tanks and jet fighters and black hawk helicopters and all kinds of incredibly expensive equipment, there is no way an armed populace could face an army. The historical reason for arming ourselves is dead. But most Americans still want to be able to own guns. And most Americans want to see some sort of regulation of gun ownership. We might accept our neighbors owning a pistol or a hunting rifle, but we balk at the thought that our neighbor might be stockpiling AK-47s in this basement. So instead of giving the courts an impossible to interpret sentence and then railing at them for being "activist" when they interpret it, let's give the courts something they can work with. Here's what I propose. "The people have a right to keep and bear arms, and hereby delegate the power to regulate their right to keep and bear arms exclusively to the respective states. Laws of general applicability passed pursuant to an enumerated power of Congress that have an incidental and unintended effect on the people's right to keep and bear arms do not offend this provision."
And fifth, prohibit political redistricting. Natural communities of people who have chosen to live together should select their representatives. Not fake communities created by gerrymandering to keep 97% of Congressional seats safe for incumbents. Some proposed language: "Congressional districts shall be based purely on geographic distribution of the people, without any regard for political, racial, ethnic, religious or any other distinguishing characteristics, and Congressional districts shall as closely as possible conform to local geography or simple geometric shapes."
But that is not to say it is perfect. We as a people continue to change and grow, and our governing documents have to keep pace or become obsolete. Courts must interpret the Constitution in light of the times we live in, but we do not want our courts to be overly involved in creating our laws. That is what our elected representatives are for. So we owe it to the courts to provide them with a constitution that reflects what we want. Let's not ask them to read too much into it.
So here are a few changes I'd like to see.
First, direct election of President and Vice-President by popular vote. The president represents the people as our executive. So let the people elect him or her.
Second, require an instant run-off election process for all Congressional and Presidential elections. We complain that our elected representatives cater too much to their own political parties, but our election process makes this inevitable. Assume that the major parties act rationally and select candidates in the primary process to represent the party on the presidential ballot who fall somewhere near the middle of the spectrum in that party's ideology. Each party makes rational compromises and selects a candidate who is not too far to any extreme within that party's basic platform. If one party is generally to the left and one party is generally to the right, each party will select a candidate who is, at best, on the fringe of the mainstream. One possible solution is open primaries where the top vote-getters, regardless of party, end up on the ballot. The problem with this is it violates the Constitutional freedom of association - Democrats or Republicans should not be forced by the state to let non-members vote in their selection process. It is also problematic because as a practical matter, the major parties will simply institute pre-primary primaries to make sure that there is only one of them in the main primary, and we'll end up where we started. Instead, I favor instant run-offs. This enfranchises third-parties and makes them viable. Now, I'm not a fan of any of the third parties currently out there. But I do believe that if we made third-party votes meaningful as more than mere spoilers, we will see better parties all around.
Third, establish a right of privacy. There isn't one. There ought to be. Some courts have read one into the Constitution. There is currently a little debate among Constitutional scholars about whether under current interpretation the Supreme Court has read a right of privacy into the Constitution. Past cases have held there is a right of privacy implicit in the Constitution - the "penumbra" theory. This theory holds (or held) that the rights enumerated in the Bill of Rights and the Civil Rights Amendments all fall within the penumbra cast by an implicit right to privacy. Roe v. Wade expressed this theory and based much of its holding on it. Later courts have backed away from the penumbra theory, and some have held there is no right of privacy. Again, my thinking is, let's not ask the courts to do more than is fair. It is not fair to ask the Court to try to sift the tea leaves of the Constitution to find a right of privacy in there. Most people believe they already have one, and I think most people want one. So let's make it official. Something simple: "The right of the people to privacy in their homes and personal affairs shall not be abridged."
Fourth, repeal and replace the 2nd Amendment. Is there an individual right to keep and bear arms? The Supreme Court has repeatedly said no. The NRA, and a lot of rational people tend to think that's exactly what the 2nd Amendment does. The framers came up with the ridiculous language of the 2nd Amendment as a compromise to avoid confronting the issue. Did they really want to make sure that if the people got fed up with what they perceived to be a tyrannical government, they could legally take up arms against it? Some did. Some didn't. We hope the Constitution itself makes unnecessary such an eventuality by providing plenty of checks and balances and room for change. And modern reality is, even an armed populace could not stand up against a tyrannical government backed by our military. In Revolutionary times, an armed citizen was no different than an armed soldier. The army might have cannons, but that was the extent of their advantage. Today, with tanks and jet fighters and black hawk helicopters and all kinds of incredibly expensive equipment, there is no way an armed populace could face an army. The historical reason for arming ourselves is dead. But most Americans still want to be able to own guns. And most Americans want to see some sort of regulation of gun ownership. We might accept our neighbors owning a pistol or a hunting rifle, but we balk at the thought that our neighbor might be stockpiling AK-47s in this basement. So instead of giving the courts an impossible to interpret sentence and then railing at them for being "activist" when they interpret it, let's give the courts something they can work with. Here's what I propose. "The people have a right to keep and bear arms, and hereby delegate the power to regulate their right to keep and bear arms exclusively to the respective states. Laws of general applicability passed pursuant to an enumerated power of Congress that have an incidental and unintended effect on the people's right to keep and bear arms do not offend this provision."
And fifth, prohibit political redistricting. Natural communities of people who have chosen to live together should select their representatives. Not fake communities created by gerrymandering to keep 97% of Congressional seats safe for incumbents. Some proposed language: "Congressional districts shall be based purely on geographic distribution of the people, without any regard for political, racial, ethnic, religious or any other distinguishing characteristics, and Congressional districts shall as closely as possible conform to local geography or simple geometric shapes."
posted by Charles S. Russell at 4:19 PM
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