A Constitutional Daydream

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Lately, I have noticed a rash of libertarian commentators proposing various Constitutional amendments which, they believe, will help to correct the dangerous course on which our nation is traveling. After pondering these for a while, and not wanting to get left out of a fad, I have come up with a few of my own.

I should first confess that I am fairly certain that this is an exercise in futility, since I am not optimistic about the direction of our society and doubt that changes of this sort will alter its course.

In particular, there is a zero possibility that any of these suggestions (or those of any of the other writers) will ever actually be implemented by our political leaders. Our elites thrive on the accumulation of power that results from the disintegration of our Constitutional protections. As a result, their class interests lie in the opposite direction. They have effectively hardwired our political system to resist fundamental change and to continue our drift towards despotism.

If one looks at the history of the modern state over the 20th Century, it is obvious that governments now have at their disposal a variety of technologies and techniques which render them impervious to fundamental reform. Modern propaganda, law enforcement, and the "soft powers" of economic coercion serve to stifle any real change. Those profound transformations that have occurred (the collapse of the USSR, Eastern Europe, etc.) have been the result of external attack or internal collapse. To the bitter end, those elite classes maintained control over their societies and prevented genuine reform. There is no reason to assume that America will be any different.

Furthermore, a constitution is only worthwhile so long as it codifies the ideals and beliefs already dominant in a given society. If the principles of the document are present in the hearts and minds of the populace at large, it will have real influence on government. If the ideals of the document do not exist or have decomposed in the society, then it is merely a piece of paper to be ignored. (Take, for instance, the constitutions left behind by the British after de-colonization in many parts of the world. Those documents have been largely ignored and are now mere historical curiosities in a string of Third World dictatorships.)

In my estimation, not more than 30% of the population of the United States understands the structure of our Republic and holds conscious allegiance to its ideals. The remainder now believes in a medley of failed European ideologies that loom hideously on our collective horizon.

Tragically, our society has thus made the transition from a Republic to a social democracy. As such, our Constitution is rather like the British Monarchy. It is a relic from a previous age to which respect is paid for public consumption, but which is largely devoid of real meaning or power. The general trend at this point is towards the continued accumulation of arbitrary governmental authority and increased fiscal irresponsibility ending in economic crisis and political chaos. History shows that from this crisis usually emerges a "savior" who disposes with the last remnants of Republican values and imposes autocratic rule (Caesar and Napoleon being prominent examples).

Having said this, one might wonder why I bother writing this at all. Wouldn’t it make more sense to convert one’s assets to gold and move to Bermuda? Isn’t it more reasonable to relax in a tropical paradise and watch the collapse on satellite TV?

The only answer that I can offer is that I really do love this country and hate to see it go down the drain without offering some ideas to prevent the emerging political and economic debacle.

Besides, tax havens are notoriously boring places to live.

So, in that spirit, I offer my amendments:

#1: Ban the stationing of American troops on foreign soil

America’s Founding Fathers steadfastly believed that we should lead by example. While they held that our system was superior to other previous ones, they were firm in their commitment that America should avoid foreign entanglements. We should have friendship and commerce with all, but should decline to intervene in situations that are none of our affair. This idea has been totally abandoned by our current government, which has stationed American soldiers in over 100 different nations around the globe.

To rectify this situation, amendment #1 would require all American military troops on duty abroad to return to US soil. The only exceptions to this rule would be during a declared war (requiring a simple majority of both houses of Congress) or a legal national emergency. I would require a majority in both houses to declare an emergency, which would have to be renewed by a majority on an annual basis.

In addition, this amendment would ban the stationing of foreign troops on US soil, would prohibit American soldiers from serving under foreign command, and would forbid American troops from taking part in international peacekeeping operations.

#2 Ban foreign aid

I strive in vain to find in our Constitution where it allows the federal government to hand out federal taxpayers’ dollars to foreign governments. In general, these funds end up in the Swiss bank accounts of the recipient nations’ corrupt leaders. In addition, the oppressed populations of these nations become aware that their autocratic system is being financed by the largess of Uncle Sam, and they naturally resent us for it.

Since we also happen to be going bankrupt, this is a luxury which we can no longer afford.

Tragically, Dictator X and Tyrant Y are going to have to find a new sugar daddy.

#3 Cap annual federal outlays to a fixed percentage (10%) of the previous year’s GDP

Our current budgetary system is hurtling our nation towards insolvency. One of the problems is that there is no overall limit to how much money congress is allowed to spend. Without a cap of any kind, congress naturally shovels cash at each powerful special interest group in order to garner contributions and political support.

If congress was only permitted to appropriate a sum equal to 10% of the previous year’s GDP, then they would have a known quantity of money to spend before they even begin to plan the budget. They could divvy it up any way they choose, but the overall amount would be predetermined.

The only exceptions to this rule would be, again, a declared war or a national emergency (which again would require a annual majority in both houses).

#4 Alter the constitutional amendment procedure to cut the federal government out of the process

The greatest single mistake that the Founders made in constructing our Constitution was to give the federal government a say in amending it. Currently, an amendment must pass both houses of congress by a 2/3 majority before going to the states for ratification, which requires of the state legislatures. (I realize that the other method of amending the Constitution, a Constitutional Convention, bypasses the federal government. But most experts believe that such a convention could not be limited to only one amendment, and would therefore open the entire Constitution up for revision. Because of the potentially catastrophic results of this process, it has never been done.)

Since the purpose of the Constitution is to limit and define the powers of the federal government, this was a major error. Congress, being a branch of the federal government, has an institutional interest in preventing any amendment which limits the power of that federal government. This has helped to create the one thing that the Founders feared most: a government which defines the limits of its own powers.

I would eliminate the congressional step altogether and allow of the state legislatures to amend the Constitution directly. There would then be an outside center of power which could limit the feds without giving Washington a voice in the matter.

This would render all three branches of government (and the Washington bureaucracy) mere horrified bystanders of the amendment process.

#5 Remove the Federal Judiciary confirmation and impeachment process from the Senate and place it in the hands of the state legislatures over whom the judges preside

Federal judges sit on circuits which preside over defined groups of states (with the Supreme Court presiding over the nation as a whole). In this new system, the president would nominate a candidate for a position on the federal bench, and the nomination would go to the states in question for confirmation (instead of the US Senate). In order to take his seat, a judge must obtain a majority vote of the state senates in at least 2/3 of the states over whom he will preside. Judicial impeachment would likewise be in the jurisdiction of the state legislatures in question.

Our federal judiciary has torn loose from its moorings and is ruling our nation as an unelected super-legislature. Time and again, it flaunts the will of the people and ignores the text of the Constitution as it imposes its will on our nation in an arbitrary fashion. The other branches of the federal government have proven themselves incapable of curbing the judiciary.

Perhaps the states will have a better chance. The state governments are more responsive to the actual needs of the people, and giving them power over the federal judiciary might just ameliorate the problem.

#6 Change the House of Representatives to a random selection system mimicking jury duty

One would be hard-pressed to find a legislative body in human history more overflowing with hacks, demagogues, and charlatans than our House of Representatives. The one thing that they have accomplished is to contort our electoral system in a manner that renders them nearly impervious to political defeat. By selling themselves to various entrenched special interest groups, gerrymandering their districts, and abusing the powers of incumbency, they are essentially Representatives for life.

The result is that our federal legislature responds mostly to donations and threats from lobbying groups, with the needs of the nation and its people being a mere afterthought.

Since I believe that the previously mentioned manipulations of the process have rendered House elections as meaningless as Soviet plebiscites, I propose that we abandon it altogether. Campaign finance reform, term limits, etc. would likely also be fruitless.

In its place, I suggest that Representatives be randomly selected for a single, four-year term from the voting rolls of each congressional district. So long as the selected individual is a citizen of sound mind, has a high school diploma, and is without a felony conviction, he would go to Washington and represent the district for one term. This person would be paid at the same rate as his current salary. Having served once, this person would be forbidden to hold any other government job or elected office in the future.

Before being taken over by neoconservative mind-control, William F. Buckley Jr. once said that he would rather be governed by the first 2000 names in the Boston telephone book than by the faculty at Harvard University. I agree. Without the motivations of political careerism and the accumulation of a war chest for future campaigns, these Representatives might just make decisions based on the needs of his community and the demands of the Constitution.

It could be a disaster, but we must try something.

#7 Enshrine jury nullification in our Constitution

Jury nullification is the process by which a jury not only evaluates the facts in a given case, but may also render judgment on the law itself. This is an old principle of English Common Law that was created as a last-ditch barrier to the arbitrary prosecution of citizens.

In theory, juries already have this power now. But in practice, the system has gone to great lengths to keep juries ignorant of nullification. The reason for this is quite simple. The political elites and their puppeteers go to great trouble to craft our laws, and they intensely dislike the idea that 12 jurors chosen from the great unwashed have the power to ignore their laws in a given case.

The argument against nullification is that the people already have legitimate input into the creation of our laws, and therefore it verges on anarchy to allow juries to engage in nullification.

This is nonsense. Our political leaders have created a system whereby the opinions of the people, as expressed by voting, are irrelevant to the crafting of policy. Voting is a mere mirage which gives the citizenry the fantasy of participation. In reality, our laws are made by legislators who have rendered themselves impervious to electoral defeat (as mentioned above). These congressmen respond only to backroom deals and pressures from powerful special interest groups. The system is hardwired and the fix is in.

In practice, nullification is simple.

For instance, if a prosecutor brings charges against an elderly lady for importing her prescription drugs from overseas (a practice which, despite overwhelming public approval, has been made illegal at the behest of the pharmaceutical industry) the jury could not only judge the facts in the case, but may acquit the accused merely because they disagree with the law and refuse to apply it in this particular case. The accused would walk free even though the jury admits that the evidence indicates that she really did break the law.

It is not hard to see why special interest groups and the governing elite hate this idea. They have gone to a lot of trouble to cut us out of the system, and this would allow the people to insert themselves back into it.

This amendment would formally declare that juries have the right to nullification, and would require each presiding judge to read a statement describing nullification to the jury before deliberation.


America’s major problem revolves around the fact that various elites have managed to undermine our Republic and its safeguards against abuse. Proposed amendments which could significantly ameliorate this situation would be bitterly opposed by these elites for just this reason. They don’t want our Republic to be restored, because doing so would drastically decrease their power to craft legal outcomes which benefit their own narrow economic and political interests.

Like an airplane with a jammed autopilot steering towards a mountainside, our system is frozen and is immune to fundamental reform. While crafting amendments may be an enjoyable intellectual exercise, I really don’t see anything changing our trajectory short of a massive systemic crisis.

But if for no other reason than the dread of spending my life’s prime years lawn bowling with old geezers in the Caribbean, something has to be done…and the sooner the better.

Steven LaTulippe [send him mail] is a physician currently practicing in Ohio. He was an officer in the United States Air Force for 13 years.

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