A Better Constitution

[Hogeye]

Darrel asks: The system of having lifetime appointed judges, nominated by one branch and affirmed by another branch, for the purpose of creating an independent judiciary, seems fair. It's not perfect, but what would you propose in place of it?

There are various improvements one could suggest. First of all, the fundamental rule of jurisprudence is that one shouldn't judge his own case. So instead of having a branch of govenment rule on the powers of government, some independent judge(s) should be used. Maybe judges from foreign countries, or a committee of foreign people, like the Dalai Lama, Richard Dawkins, and Gary Kasparov. The particular selection rules are less important than the principle of unbiased arbitration.

For an oversized, bloated, welfare-warfare State like the US, this may be hard to imagine. But it's pretty easy to picture PDAs (private defense agencies) who hire an independent arbitration firm to rule on contract disputes with customers. Note that a constitution is basically a charter for a PDA.

Secondly, the right to seceed should be spelled out (like it was in the Confederate Con).

Thirdly, from 20-20 hindsight we know that the "general welfare clause" and the "commerce clause" have had horrendous results - they should be deleted, or the language changed to make it clear that these are additional conditions on govt action rather than granting extra powers and perogatives.


There has been a lot of work done on "free nation" constitutions. One effort is Wolf DeVoon's Freeman's Constitution. Another is the Virtual-Canton Constitution with its clever idea of virtual cantons, allowing for non-geographical representation. These are superior to the US Con.

In the final analysis, I don't "believe in" constitutionalism - the notion that pretty words on paper are capable of limiting the power of a State. Ideally, statist constitutions will evolve to PDA charters catering to the diverse needs and values of people.

[Dardedar]

So instead of having a branch of govenment rule on the powers of government, some independent judge(s) should be used. Maybe judges from foreign countries, or a committee of foreign people, like the Dalai Lama, Richard Dawkins, and Gary Kasparov.

DAR
I don't see how this is remotely tenable.

a) judges from foreign countries

We need to appeal to foreigners to interprete the language of our own constitution? That's absurd.

b) a committee of foreign people

Why? How? Same problem as (a). Competely unworkable. Rather absurd really. How is this superior to our very elaborate somewhat democratic method of selecting these judges? A foreigner is in some way better at unpacking the 2nd ammendment than a highly qualified homegrown judge? I don't see why.

The particular selection rules are less important than the principle of unbiased arbitration.

DAR
How are your foreigners necessarily more unbiased than judges who live in the country and have a vested interest in the welfare and vitality of it's society? Imagine trying to sell the idea that we should absolve the Supreme Court and instead out such matters before the UN, and however they vote is what we will go with. Yeah, there's some unbiased arbitration for you eh?

Anyway, it's ridiculous. Do you know any country on the planet that operates this way? Americans are already paranoid about foreigners and I don't seem them hiring out to other countries to decide what our rule book says and be the final arbitor, the highest and last word on our most important and controversial legal decisions. And I don't see any other countries doing it either.

Oh, how do you think the UN, or some foreign body would vote on the meaning of our Second Ammendment? Just kidding, no need to answer that one. You would still lose in a landslide.

D.

[Hogeye]

How is this superior to our very elaborate somewhat democratic method of selecting these judges?

It avoids the government judging its own case. Asked and answered.

A foreigner is in some way better at unpacking the 2nd ammendment than a highly qualified homegrown judge? I don't see why.

Yes, because he's not politically appointed, and doesn't have the biased mental set that long-time establishment US government judges have. A foreigner would be more likely to interpret English in an unbiased manner, where "no law" means "no law," where "the people's right to keep and bear arms" is taken at face value, where the 10th Amendment is not ignored, and so on. I would prefer a highly qualified unbiased judge.

I didn't claim that any outside arbitration of the Con was unbiased; only that it would be possible to find unbiased outside arbiters. The UN is so politicized and has so much intermingling with the US State that their court would be a very bad choice. Ideally, you'd want non-political types who simply judge what the Con means - someone without an agenda.

Oh, how do you think the UN, or some foreign body would vote on the meaning of our Second Ammendment?

I think an unbiased judge instructed to faithfully translate the 2nd Amendment would interpret it as an individual right to bear arms. Ask any unbiased foreigner to read it and tell you what it means.

[Dardedar]

The particular selection rules are less important than the principle of unbiased arbitration.

DAR
This is the central problem of the question at hand and you are ducking it. Keep the same selection rules, but just require that the judge be a foreigner? I don't see why they would suddenly agree with you. Anyway, we will never get to find out, for the reasons stated earlier in the other thread.

(re independent judgement)"
I think an unbiased judge instructed to faithfully translate the 2nd Amendment would interpret it as an individual right to bear arms.

DAR
As long as they belong to a militia. And no bazookas, sawed off shotguns, full auto's or long clips either.... etc. Incidentally, "foreigners are typically for much more gun control than we currently have.

Ask any unbiased foreigner to read it and tell you what it means.

DAR
I'll do that first chance I get. Not that it matters. The chance that we will be switching, or that any politician would even propose that we should assign foreign judges to have the final say on the interpretation of our most controversial laws is precisely zero.

And you never did provide a process for judge selection which would be better than the one in place, which was the question. You say it doesn't matter so much just as long as they aren't selected from a pool of Americans. Bizarre.

D.

[Hogeye]

Hogeye> The particular selection rules are less important than the principle of unbiased arbitration.

Darrel> This is the central problem of the question at hand...

It's not a problem, let alone a central problem, to me. I expect the USE to devolve soon; to me the question is moot. But here's a selection rule, just to keep you happy: Outsource interpretation of the Con to Bangalore.

Incidentally, foreigners are typically for much more gun control than we currently have.

Yes, incidental and irrelevant. We would not be asking their personal preferrences, but only to interpret the meaning of the 2nd (even if they disagree with it.)

The chance that we will be switching, or that any politician would even propose that we should assign foreign judges to have the final say on the interpretation of our most controversial laws is precisely zero.

Right. I'm suggesting what would be better, not what would be politically feasible. The fact is that the USE will become more and more tyrannical until it breaks up. That's the pattern for all empires. Reform is futile. May we live to see the devolution!

[Barbara Fitzpatrick]

Hogeye, in insisting to Darrel that the best way to interpret the constitution and its amendments is to ask a foreigner, you seem to forget Darrel IS a foreigner. You've been hearing the interpretation you say would be the most valid.

[Hogeye]

I said an "unbiased foreigner" was more likely to interpret English in a common sense manner. Instead, we get establishment politicized "judges" with a mental set favoring statist quo interpretations. My verbatim suggestion was, "instead of having a branch of govenment rule on the powers of government, some independent judge(s) should be used. Maybe judges from foreign countries, or a committee of foreign people, like the Dalai Lama, Richard Dawkins, and Gary Kasparov.

Actually, Kasparov is a bad idea. We want non-political types like the Dalai Lama; GM Kasparov is running against Putin for Russian ruler, so should be disqualified.

Lysander Spooner once wrote a paper advocating random jury selection - a randomly selected jury with no voir dire. Others have suggested that the president, senators, and congress-critters also be select at random. After all, random selections are unlikely to be pre-corrupted by special interests as politicians are. And random people are bound to be more honest and trustworthy than the scumbag politicians we get. Along these lines, I want to elaborate on the outsource to Bangalore idea.

Have a lottery which includes all Bangalore residents who a) have at least a high-school proficiency in English, and b) have no political ambitions or income. Select nine at random. Let them judge all US Constitutional issues for a year. Repeat every year. This would be a clear improvement over the current situation.



Multiple choice question for foreign English speakers:

There exist some very emotional issues for Americans. Some issues are so emotional that Americans seem unable to decipher their own language when speaking of them. The following is a sentence written in English:

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.

Please select from the following the answer which best conveys the meaning of the sentence above.

A. Only if a well regulated Militia is necessary to the security of a free State, then the right of the people to keep and bear Arms shall not be infringed.

B. A well regulated Militia is necessary to the security of a free State and the right of the people to keep and bear Arms shall not be infringed.


(Answers A and B should be reversed in half the questionaires.)

[Dardedar]

DAR
I think you are really on to something here. Be pragmatic. Without delay you should start a campaign petitioning congress to have them change the constitution so that the Supreme Court members are immediately replaced with random, political slacker high school graduates from Bangalore. You write the letter, I'll pay for the stamp.

Good idea!

D.

[Hogeye]

I see you're "forgetting" that I'm an anarchist?

In the final analysis, I don't "believe in" constitutionalism - the notion that pretty words on paper are capable of limiting the power of a State. ... I expect the USE to devolve soon; to me the question is moot.

[Barbara Fitzpatrick]

"Unbiased foreigner" i.e., one who agrees with Hogeye. (Note: You will not get the Dalai Lama judging that unrestricted weaponry be put in everyone's hands - or even anyone's hands.)

There is a C - The members of a well-regulated militia, being a body of the people, shall keep and bear the arms assigned them as members of the militia.

[Hogeye]

You will not get the Dalai Lama judging that unrestricted weaponry be put in everyone's hands - or even anyone's hands.

Remember, we would be asking him, not what he thinks about compulsory disarmament, but what he thinks the Constitution says about it. Probably the Delai Lama could give an honest reading of it.

Your C is frivolous. Why would someone totally drop the "being necessary to the security of a free State" part, and gratuitously add something about arms being assigned. This is just the type of bias that having foreigners translating it avoids. Notice how C would turns things into the total opposite of the original intention. Instead of an individual right, a restriction on the State, it turns it into an extra enumerated power for the State against people. In a Bill of Rights!

[Barbara Fitzpatrick]

True about my "C" changing the emphasis - but then so does removing or disregarding the part about the militia (as Hogeye does when he says it's a meaningless phrase just added to get the amendment passed). In fact, if you disregard the "militia" part, the right to bear arms could mean that Americans can kill bears and remove/carry arms from the bear. It could mean that Americans can have heraldic ensignia (arms) and carry them where and whenever they wish. Considering that spelling wasn't formalized at that time, it could also mean that Americans can constitutionally wear sleeveless shirts (bare arms). However, "bearing arms" is a collective phrase with legal and historic meaning that is collective (army or militia) rather than individual, and within that framework the meaning of the second amendment is very clear - to protect the arming of the militia.

[Hogeye]

My claim is that the militia phrase is not qualificatory. I didn't say it was meaningless. It is a policy statement which partially explains the individual right to keep and bear arms. Barbara, don't forget the "keep" part. Even if "bear arms" had a purely military connotation back then (which I doubt; one can bear arms for both military or private purposes), the insertion of "keep" makes it clear there were non-military considerations. The framers were quite familiar with Blackstone, as you know, and Madison was no doubt familiar with the following:

n vain would these rights [personal security, personal liberty, and private property] be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.
....
The fifth and last auxiliary right of the subject ... is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute ... and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. - Blackstone's Commentaries

Here's an article with a good discussion of the RTKBA: The Fifth Auxiliary Right.

There were at least three major constituencies with different concerns.

1) People worried about raising an army in case Britain (or France) attacked.
2) People worried about the new central State taking over state and local militias.
3) People worried about government (at any level) becoming tyrannical.

1 and 2 were concerned mainly with military efficacy, while 3 were concerned about an individual right of self-defense, like Blackstone in the quote above. People in 3 still held the ideals of the Declaration of Independence, and were probably sympathetic to Shays' Rebellion.