Michael Maiello's picture

    A Constitutional Project

    Just based on conversations I've had over the years, one of the assumed best things about the enduring democracy of the United States is that we've had one Constitution, amended infrequently, for a very long time.  Other countries, we're told, go through constitutions quite frequently and others don't have them at all.  Today, Louis Michael Seidman writes in The Times that we should give up on the Constitution all together.  It has become, he argues, an impediment to smart decision-making and an appeal to a long departed gentry who would not understand the problems we face today.

    I'm convinced.

    Seidman argues that giving up the Constitution doesn't mean giving up the traditions of laws and society that we've always lived with.  It is not, he says, the only thing that stands between us and Hobbesian chaos.

    Getting rid of the Constitution would allow for us to change some pretty stupid things.  One that Seidman points out is the notion that spending bills must originate in the House of Representatives.  Isn't that a needless custom at this point.

    I'm sure many of you would write the Second Amendment away, or would at least clarify it.  It's tempting for me to use this post to write my own, ideal constitution.  But that seems self indulgent and could potentially bore you all.  Besides, I'd love to see what a Dag Constitutional Convention would come up with.

    If we did scrap the Constitution to begin anew, what would you keep, what would you change and what would you add?

    Opine, if you have a moment.  And Happy New Year.



    I would keep the parts that protect the ability of the minority, from attacks from the majority.

    That's a smart statement of principle.  Where does it take you?  What do you keep in that regard?  And... what do you add?

    Thomas Jefferson suggested that the Constitution be rewritten every 19 years to keep a previous generation from burdening the next with possibly outdated laws.

    Do you have the entire discussion by Jefferson,  that you rely on for a particular quote?

    Please provide us the occasion. So we all can see, whether their is a bias, or a selective reading, so that reasonable men, might determine whether the words of Jefferson were taken out of context?

    Compilation of Jefferson on topic by "student of life" at Newsvine (my bold):

    Every constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to nineteen years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form. The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal."

    --Thomas Jefferson to James Madison, 1789. ME 7:459, Papers 15:396

    Let us provide in our constitution for its revision at stated periods. What these periods should be nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself that received from its predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every nineteen or twenty years should be provided by the constitution, so that it may be handed on with periodical repairs from generation to generation to the end of time, if anything human can so long endure."

    --Thomas Jefferson to Samuel Kercheval, 1816. ME 15:42

    Forty years [after a] Constitution... was formed,... two-thirds of the adults then living are... dead. Have, then, the remaining third, even if they had the wish, the right to hold in obedience to their will and to laws heretofore made by them, the other two-thirds who with themselves compose the present mass of adults? If they have not, who has? The dead? But the dead have no rights. They are nothing, and nothing can not own something. Where there is no substance, there can be no accident [i.e., attribute]."

    --Thomas Jefferson to Samuel Kercheval, 1816. (*) ME 15:42

    The idea that institutions established for the use of the nation cannot be touched nor modified even to make them answer their end because of rights gratuitously supposed in those employed to manage them in trust for the public, may perhaps be a salutary provision against the abuses of a monarch but is most absurd against the nation itself. Yet our lawyers and priests generally inculcate this doctrine and suppose that preceding generations held the earth more freely than we do, had a right to impose laws on us unalterable by ourselves, and that we in like manner can make laws and impose burdens on future generations which they will have no right to alter; in fine, that the earth belongs to the dead and not the living."

    --Thomas Jefferson to William Plumer, 1816. ME 15:46

    A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held and may change their laws and institutions to suit themselves. Nothing then is unchangeable but the inherent and unalienable rights of man."

    --Thomas Jefferson to John Cartwright, 1824. ME 16:4

    The generations of men may be considered as bodies or corporations. Each generation has the usufruct of the earth during the period of its continuance. When it ceases to exist, the usufruct passes on to the succeeding generation free and unencumbered and so on successively from one generation to another forever. We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country."

    --Thomas Jefferson to John Wayles Eppes, 1813. ME 13:270


    NCD, Dec. 31, 2012:

    I would rather be burdened by law writ by the dead, than swindled, deceived or misused by those writ by the living, who have the advantage of benefiting from the fruits of their subterfuge.

    Seriously though, I think a parliamentary system, where an election gives full legislative and executive power to one party is the best form of democracy, as is used in Canada, Australia and England. It is then clear who is in power, and whichever party is, has the means to carry out it's programs.

    A huge problem we have is too many voters have no idea of what is going on in government, many don't know which Party controls the House or Senate.

    Effort is wasted by politicians and the media in spinning what's going on to confuse/obfuscate viewers, KOS now has a FOX News byline that says the House is 'unable' to act until the Senate passes a budget Bill, which is pure BS. 

    The 2 parties try to shirk responsibility for failures, and claim credit for successes. Voters do know who is President, and the President should have a House and a Senate run by his Party.

    Divided control of executive/legislative branches creates inefficient government, that is unable to act promptly or often at all. This more than anything is a major defect in our Constitution.

    The problem is that if you throw the bloody thing out the forces of evil with a trillion dollars in the ready will really screw us.

    Corporations would be people people and those without property could not vote and...

    Some folks don't like the Senate.

    States with half a million in population get two senators and so does NY with 32 times that number.

    However, our history is one of states. 

    Leave my Minnesota alone for chrissakes.


    But, hey... could do one of two things:

    We recognize corporations as people.  As such, no corpirate charter may exist for longer than the average lifespan of an American citizen at its time of incorporation.  If they are people, we make them mortal.

    Or, we could flat out say that while all inidividuals may freely assemble, no assembly may make legal claim to personhood.


    I would add a rule or write a law or amend the Constitution, whatever it takes, so that there is one clear issue on any bill voted on by Congress. The  current system allows "riders", provisions that probably couldn't become law on their own but that might be able to ride to success on the back of unrelated legislation that is already on its way to enactment.

    I believe that the Constitution has been modified many times over the past two hundred plus years and for the most part it has been modified for the better.  Have we had setbacks, for sure, but inevitably we march toward universal justice and equality and making the world a better place.

    Boehner for some reason has abdicated his constitutionally mandated responsibility that these bills originate in the house. I don't think the rules need to be changed because the guy who is in charge is the weakest Speaker of the House in the history of the United States of America.  He is weak and ineffectual, he is a broken man, he will be lucky if he holds on to his position, if he does he will be even weaker than he is currently, which means we can expect more of the same or worse.  The Constitution isn't holding us hostage, idiots are holding us hostage to their crazy rage over losing the last election. Are these dudes ever going to be forced to GTFOIA and move on and get some work done without each dramatic "but we caaaaaaaaaan't" and take the country to the edge and then agree to what they have to agree to anyway.  WTF?

    If you’re going to consider a New Constitution, consider this.

    “Hence also, the origin of all civil government, justly established, must be a voluntary compact, between the rulers and the ruled; and must be liable to such limitations, as are necessary for the security of the absolute rights of the latter; for what original title can any man or set of men have, to govern others, except their own consent? To usurp dominion over a people, in their own despite, or to grasp at a more extensive power than they are willing to entrust, is to violate that law of nature, which gives every man a right to his personal liberty; and can, therefore, confer no obligation to obedience”.

    “Alexander Hamilton,

    The Farmer Refuted 23 Feb. 1775 Papers 1:86--89, 121--22, 135--36, The Papers of Alexander Hamilton. Edited by Harold C. Syrett et al. 26 vols. New York and London: Columbia University Press, 1961--79


    i had a very similar discussion with an Attorney friend of mine a couple of years ago. in fact i bought the url www.theusconstitutionisobsolete.com. i have since let it expire since i never created anything.

    i don't know if i would do away with it, but more probably update it to take current societal norms and especially technology into account.

    the first amendment needs updating due to technology. right to privacy should be clarified;especially to end the endless debate on roe v wade.

    Second amendment - is it a right for purpose of militia? (obsolete) or individual? Square this baby away.

    Fourteenth amendment - this has been so overused to justify practically anything when it was meant to insure rights to former slaves.

    How about term limits, Gerrymandering, unlimited money in political campaigns stemming from freedom of speech.

    OK, my lunch hour is over!


    Oh....and state's rights have been obliterated by the Fed always dangling the purse strings to get what they want. Need to fix that!

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