Original version of Right to Bear Arms

This is one of the original versions of what became the Second Amendment, regarding the Right to Bear Arms.

This version was passed by the first House of Representatives in 1789. You will notice that this version is different, and I think more clearly written, than the version that ultimately became the Second Amendment.  

“A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.”

I like the phrase “composed of the body of the People”. That phrase would help quite a bit when debating the meaning of the Second Amendment.

I also like the phrase “no one religiously scrupulous of bearing arms shall be compelled to render military service in person.” Although I strongly support the military, I have always disagreed with military drafts, which force citizens to take arms and fight when they do not wish to. I wonder why this phrase was taken out?

Personally, I like this original version of the Right to Bear Arms much more than the version we have had to work with.

Purposes of Government - Part 2

What is the purpose of government?

In a previous article we said that the primary purpose of government is to provide the structure for citizens to do what they desire and for those citizens to prosper. There is a secondary purpose of government, and that purpose is to hear and resolve competing interests.

Whenever a group of people get together there will always be competing interests and differing opinions. Key among competing interests are land use and water use. Other common conflicts include: business vs environment, business vs safety, freedom vs safety, and privacy vs security.

A government body must exist to hear all parties on each specific conflict. The government body should then reach a wise decision which satisfies everyone involved.

This government body must also set some basic rules regarding the issues so everyone can work together with minimal conflict.

This government body may be the federal legislature, a state legislature, a government agency, a city council, a regional board, or some other entity. All members of each government body should be elected by the people.

The authority of each body should be clearly defined, so that there is no confusion as to which government body has authority over the issue. However, this is a difficult task, with many factors to consider. (This issue will be explored later in subsequent articles).

           

A further subset of this government purpose (hearing and resolving competing interests) is the legal system. Competing interests are often on a personal level or company level rather than a community level. Also crimes such as theft and murder are as old as recorded history. Therefore the legal system must exist to resolve these conflicts.

The government can use a variety of methods in the legal system to resolve these disputes. The more informal methods include mediation and alternative dispute resolution. If these do not work then official lawsuits can be filed, where decisions are reached by judges and juries. In any case, a government must create a legal system which can hear and resolve conflicts on a more personal level.

Therefore the secondary purpose of government is to hear and resolve conflicts and differing opinions. This can be at any level: personal, community, state, or national.

There are two systems involved when hearing and resolving conflicts: the council system and the legal system. The legislature/city council system exists to discuss community level issues. The legal system exists to resolve personal conflicts which cannot be resolved the individuals themselves.

             

Purposes of Government

What is the purpose of government?

The primary purpose of government is to provide the structure for citizens to do what they desire and for those citizens to prosper.

Whether the government we speak of is national, state, or local, the primary purpose of any government is to provide the structure for citizens to flourish.

Main duties within this role are related to safety and security. The citizens should be able to rely on a basic level of safety. This includes military defense, border security, and other types of law enforcement. This includes health inspections such as the inspection of foods, drugs, and restaurants. Other safety areas which the government should manage include fire prevention, airline inspections, and cargo inspection.

The government must also provide the basic necessities for civilized living. These areas include: water (adequate supply, clean water), sewage treatment, and waste management. Without taking care of these basic necessities the citizens cannot prosper.

The government should also provide infrastructure or monitor infrastructure for business and communication. Specific topics in this area include: money (minting and printing money), roads, canals, energy, electrical power, postal service, and telecommunication services. These elements of infrastructure allow goods, services, and ideas to be exchanged. Such exchange of goods, services and ideas creates synergy which allows citizens to flourish.

Note that the private sector can provide some of these functions. However, if no private sector entity exists, and if the scope of the problem is larger than the family unit, then a government agency should be created to provide the service.

Each of these duties fall into the primary purpose of government, which is to provide an environment where the citizens can do as they wish and flourish as much as possible.

                       

             

Constitutional Amendment: Term Limits for Congress

Proposed Amendment on Term Limits

“Each U.S. Representative and Senator shall serve no more than 12 consecutive years, or shall serve no more than 18 non-consecutive years.”

Reasoning for the Amendment on Term Limits

Term limits for members of Congress are absolutely necessary. Why do we need term limits? Term limits are necessary to ensure that our representatives are connected with the people.

When a representative works far away from his district, he loses touch with the people he is supposed to represent. Furthermore, Washington DC is nothing like America. Most representatives begin to lose all common sense and integrity after working in DC for a few years. Therefore, as the representative works for many years away from his district he loses touch with his constituents, and at the same time gets absorbed into the DC culture. The best system is to have a continuous refreshing of representatives in our nation’s capitol.

Why are term limits necessary if we have elections?

One of the arguments against term limits is that elections naturally eliminate the representatives who are not representing the people. This is not true. The fact is that elections alone rarely replace unethical representatives.

Replacing an incumbent is generally difficult to do. The incumbent has the political connections and the media connections to promote himself. He can use his connections to portray a positive public image and spin his negative history. Unless there is a great uprising, most people will vote for incumbents, including incumbents that have behaved poorly.

Furthermore, almost rarely does a person challenge an incumbent from his own party. The money and political support will go to the incumbent, no matter how unethical, rather than the challenger. However, if we have term limits then there will be an automatic opening for new challengers within each party every few years.

Why 12 years?

I have believed in term limits as a principle for a long time, yet it was only recently that I decided the specific number of 12 years. There are several approaches to the reasoning.

First consider that the term of a Senator is six years. Therefore the term limit must be a multiple of six. Also, most term limits for offices are set for 2 or 3 terms. Two terms for a Senator is 12 years. Three terms is 18 years.

Then take that same 12 years for a Representative. Twelve years for a Representative is equivalent to six terms. That seems like plenty of terms in office to me.

Now let us take the 12 years and see how it compares to a normal life. Start the clock after you graduate from college. You travel the world, you start a business, you raise a family…you do all this while your Congressman and Senator still hold the same office. Think of all the things you have accomplished in that time. In comparison, your representatives seem quite stagnant. Therefore, I believe 12 years is quite plenty.

Suppose you want more of a good man in office? That’s where the 18 non-consecutive years comes in. In order for a good man to serve the people for a longer time, he must sit out a few years.

In other words, for a good man to serve more years on office he goes back to the community he came from. When he does run again he will be that much more familiar with the needs of his community. At the same time, a new fresh representative arrives in Washington who is still familiar with the people and who has not yet been tainted by the DC culture. This is a win-win solution for everyone.

With this Amendment we will have 12 consecutive years for both Representatives and Senators. This translates to six consecutive terms for Representatives and two consecutive terms for Senators.

A Representative or Senator can choose to serve a total of 18 non-consecutive terms. The person must return home for a few years before being elected again. This translates to nine terms total for a Representative, and three terms total for a Senator.

To repeat the Amendment

“Each U.S. Representative and Senator shall serve no more than 12 consecutive years, or shall serve no more than 18 non-consecutive years.”

Constitution as a Contract

The US Constitution is first and foremost a contract. This is something I learned from Thomas Paine many years ago.

Now that I am an experienced paralegal, having drafted and interpreted contracts over the years, I have a much deeper understanding of what it means to say the Constitution is a contract.

There are a few main elements of contracts which apply equally to the Constitution:

1. A contract is static, it is not a living document.

2. Any contract can be amended if all parties agree.

3. The terms of a contract should be clear.

4. Clauses which are unclear can be modified.

5. Clauses can also be interpreted by a court.

Here I will discuss some of those elements.

1. A contract is static, it is not a living document

There are many people who believe that the Constitution is a living document. This is not true. There is no such thing as a living document. The terms of any contract are fixed after the document has been signed. You cannot change a clause of the document without agreement from the other parties. The same holds for the Constitution.

2. Any contract can be amended, if all parties agree

Sometimes a contract needs to be altered. This is necessary because circumstances change. The process for changing a document is easy to do, but there is a process. As long as both parties agree to the changes, then the contract can be amended at any time.

Similarly, the Constitution needs to be amended from time to time due to changing circumstances. This can be done if all the parties agree to the changes. In this case, “all parties” means the citizens, and “agreeing” means that the elected legislators of each state agree to the changes on behalf of their constituents.

3. The terms of a contract should be clear and unambiguous

I pride myself in creating contracts where all terms are clear. This is not always the case in contracts I have read. The biggest problems arising from business agreements exist because each party has a different interpretation of a clause. Does “Portland” mean Portland Maine or Portland Oregon? What qualifies as “organic” food? When terms such as these are not specified, each party assumes their own meaning. If these terms are not consistent, then problems emerge and good people become aggravated.

The same is true of the Constitution. Some of the terms in the Constitution are clear, but many are not. It is clear that a President must be 35 years old. However, what is a “well-regulated militia”? What are “cruel and unusual punishments”? Terms such as these mean different things to different people. This results in confusion for everyone: citizens, legislators, agencies, and the courts.

4. Clauses which are unclear can be modified

If the clause of a contract is unclear and causes confusion, the best thing to do is rewrite the clause. All parties can be gathered for a new discussion and the terms can be clarified. Similarly, if there is a clause in the Constitution which routinely causes confusion, that clause can be changed through an Amendment.

5. Clauses which are unclear can be interpreted

In a business contract, if the clause is ambiguous it is best if all parties meet to reword the contract. However, sometimes this is not an option. If this is not an option then one party can go to court, where a judge will decide the meaning of the clause. When deciding the meaning of a clause, the judge will usually look to the most common usage of the word in that industry, or to what a reasonable person in that location would assume.

Regarding the Constitution we cannot talk to people who wrote the document or those who ratified the document. The best we can do is read their other writings. This is followed by examining history for common word usage of the day. If necessary, we must leave it to the Supreme Court to decide exactly what those terms mean as applied to a particular situation.

Checking the Powers of the U.S. Supreme Court

The purpose of this Constitutional Amendment is to check the powers of the United States Supreme Court.

Whenever there is a loophole in the Constitution, the proper way to fix this loophole is through an Amendment. In this case, the loophole is that the U.S. Supreme Court has too much power. There are only seven individuals, holding office for life, who decide whether or not a law is Constitutional. Furthermore, in recent decades the Supreme Court has legislated from the bench (which is not their role), and has often ruled in ways that run contrary to the principles of the Constitution.

The following Constitutional Amendment will return the Supreme Court to their proper role as intended by the Authors of the Constitution.

The Proposed Constitutional Amendment to Check the Powers of the U.S. Supreme Court:

A. The United States Supreme Court shall not legislate from the bench. Any law created by the United States Supreme Court shall be void.

B. The United States Supreme Court shall not use any foreign source material when ruling on a case.

C. The United States Supreme Court shall adhere strictly to the 10th Amendment and to the Enumerated Powers Clause of the Constitution.

D. Any Supreme Court ruling can be overturned, upon 2/3 vote of the state legislatures. When a ruling involves multiple issues, each issue will be voted on separately and overturned separately.

E. The original Supreme Court decision will be modified with the rulings overturned by the state legislatures. Each state legislature may add a brief statement explaining its reasoning.

F. There shall be no time requirement for state legislatures to consider and vote on Supreme Court decisions.

G. The term of U.S. Supreme Court Justice shall not exceed 10 years.

H. Any Justice of the U.S. Supreme Court can be removed from office for flagrant disregard of the Constitution, as exhibited in his votes and judicial opinions. A Justice of the Supreme Court shall be removed from office by 2/3 approval of the State Legislatures. There shall be no time limit for the 2/3 removal vote to be reached.

I. This Amendment shall be enforced by the state legislatures.

Thomas Paine Quote on Constitution

Thomas Paine has many words worth quoting. This quote is one of the best single block quotes. It is his first description of a constitution. I have divided the quote into pieces because each point is worth noting.

"A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and wherever it cannot be produced, there is none."

"A constitution is a thing antecedent to a government, and a government is only the creature of the constitution."

"The constitution of a country is not the act of its government, but is the act of the people constituting a government."

"The constitution is the body of elements, to which you can refer, and quote article by article; and contains the principles on which the government shall be established, the form in which it shall be organized, the powers it shall have, the mode of elections, the duration of parliaments (or by whatever name such bodies may be called); the powers which the executive part of the government shall have; and, in detail, everything that relates to the complete organization of a civil government, and the principle on which it shall act, and by which it shall be bound."

"A constitution, therefore, is to a government what the laws made afterwards by that government are to a court. The court does not make laws, neither can it alter them; it only acts in conformity to the laws made; and the government is in like manner governed by the constitution."

Thomas Paine, "Rights of Man" 1792

Constitution fundamentals - What is a Constitution

The following describes the basics of a constitution. The points listed here apply to the US Constitution, all State Constitutions, and all city charters.

All of these points come from Thomas Paine. I have merely tried to summarize his concepts.

1. A Constitution is first and foremost a contract.

2. A Constitution is an agreement between the people and themselves.

3. A Constitution is the creation of a new government.

4. A Constitution describes the organizational structure of the government.

5. A Constitution limits the powers of the government.

6. A Constitution protects the rights of the people.

7. A Constitution is approved by the people.

8. A Constitution must have a method of being Amended.

9. No body of the government can itself change a constitution.

10. The people are the final authority on what is or is not Constitutional.

11. All constitutions should have a statement of rights.

12. All constitutions should have a statement of responsibilities.