John Woo Debates Bruce Fein: US Constitution as Ouija Board

A fachidiot is someone who knows a whole lot about some one thing but lacks ordinary common sense. The lawyers involved in the current debate about whether Obama's actions are unconstitutional are fachidiots. These people look at the problems faced by the federal government in relationship to the only thing they have studied, the US Constitution. What they do not say is how the federal government is going to solve real-world problems if Congress refuses to do its job, which is defined by the Constitution as providing the funds for the executive branch to do its job.

John Yoo, War Monger

John Yoo, a Professor of Law at UC Berkeley, proudly proclaims he is a conservative, yet seems only concerned with one aspect of presidential power, namely war-making. This is a sure sign of the fachidiot: He considers all problems in light of the one thing he knows about. Yoo knows all about the history of warfare and how past presidents have taken over the waging for war from the Congress since WWII. This change has come about because Congress has ceased to show any real understanding of international politics. Instead they have replaced the study of issues, which would require time and intelligence, with application of platitudes, which only requires reading talking points prepared by weapons manufacturers.

Professor Yoo used to work for the George Bush administration. He gave his legal opinion that torture, indefinite imprisonment without trial, and assassination were all perfectly fine under the Constitution. All three of these practics (and several others Yoo approved) violate the Geneva Conventions of War, a treaty which the US signed but which Yoo said we could ignore in its entirety. Professor Yoo says that the Constitution gives warmaking powers to the President and hence, anything he wants to do is legal under the Constitution.

The world is a simple place for Yoo. Might makes right. Presidents are all-powerful when it comes to war. This is similar to the view of Chinese government espoused by Confucius. Confucius maintains that the Emperor is the supreme authority of the state, essentially a god on earth. Therefore, he can do no wrong. Yoo has incorporated a similar totalitarian belief into his study of Constitutional law. He does not seem concerned that the nations of Western Europe and North America have advanced beyond this view of an absolute ruler. He finds the basis for absolute dictatorship in the US Constitution.

Yoo goes further. Finding the UN Charter fundamentally flawed, he suggests a new world order in which countries engage in preventative wars and establish democracies at the point of a gun. His views are not new. They were tried out in Iraq with disastrous results, both in lost treasure and in human slaughter and suffering.

Bruce Fein, Human Rights Advocate

In debate with Woo about Constitutional powers of the president, Bruce Fein claims that the Constitution does not give the president extraordinary powers to make war. He says he does this by examining the motives and opinions of the Framers outside the Constitution. This he calls, examining the spirit of the Constitution as opposed to the letter of the Constitution. Woo commented that Fein obviously didn't care for the views of Robert Bork, the conservative judge who failed to be confirmed to the Supreme Court. Woo assuredly made this comment to chide Fein for not being a true conservative.

Fein is a traditional conservative who believes the Constitution guarantees rights to our citizens and proscribes the government from taking unjust actions against them. In a letter to President Bush in 2007, Fein and his co-authors explained that the policies of the Bush administration would

obliterate the conservative philosophy of individual liberty and limited government celebrated by the Founding Fathers.

Fein also respects the human rights initiatives of the United Nations, writing that

waterboarding, detentions without accusation or trial, the suspension of habeas corpus, spying on Americans without judicial warrants, and threatening lawyers for defending accused terrorists or terrorist organizations are earmarks of tyranny, not liberty.

What Does It All Mean?

The problem with this debate is that both sides claim to be conservatives, following the explicit instructions they find in the US Constitution, yet their conclusions are diametrically opposed. Yoo thinks the president can order waterboarding and spying on Americans. Fein thinks he can't.

For these two lawyers, the question is an intellectual exercise. For the rest of us, as we attempt to assert our rights in courts and on the streets, the question of what the Constitution protects or guarantees is more practical. We want to know, what can the police officer do to me? The answer would seem to be that the police can do whatever they like, just as the president does.

I suggest that the constitutional experiment has failed.

The Constitution isn't just obsolete: It's completely broken

Francis Fukuyama is releasing a new book describing the dire quagmire of the American republic and what we can do to fix it: Nothing, apparently. Fukuyama is a Fellow with a PhD at a think tank at Stanford University. No, not the Hoover Institute. Fukuyama is miles ahead of the Hoovers, who characteristically pontificate on how great America is and how exceptional it is. Fukuyama has given the matter some deep thought and come to the conclusion that the Constitution isn't just broken, it can't be fixed. In an article in the September/October issue of Foreign affairs, Fukuyama writes:

Political decay...occurs when institutions fail to adapt to changing external circumstances, either out of intellectual rigidities or because of the power of incumbent elites to protect their positions and block change.

And there you have a concise description of what has been happening to the American government for the past 50 years. The entrenched elites (the one percent) have been blocking every attempt being made to share their power with the rest of us. Political decay has set in with a vengeance. Fukuyama goes on:

A combination of intellectual rigidity and the power of entrenched political actors is preventing [American] institutions from being reformed. And there is no guarantee that the situation will change much without a major shock to the political order.

Fukuyama is neither politician (hence incapable of making a decision) nor a diplomat (hence incapable of speaking his mind). He ignores the criticism of Obama's use of executive power. Instead, he argues that the executive branch does not have enough power to do its job and that this lack of power is the source of much recent dysfunction. The United States, he says,

has returned, in certain ways, to being a state of "courts and parties," that is, one in which the courts and legislature have usurped many of the proper functions of the executive, making the operation of government as a whole both incoherent and inefficient.

Readers of Masrizone know how concerned I have been about our decrepit constitution. I am glad to report that one scholar, at least, supports my position.

 

The Myth of Constitutional infallibility

Jonathan Turley, law professor at George Washington University School of Law, has recently issued some startling opinions about President Obama's conduct of the presidency. When the President ordered air bombardment of Libya in 2011, Turley represented Congress in its lawsuit, Kucinich v. Obama, to stop the exercise of the President's war powers. In his analysis of the reasons behind the suit, Turley wrote

The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I.

By invoking the Framers--i.e., the political theorists who wrote the U.S. Constitution--Turley slipped down the rabbit whole of Constitutional Infallibility. Arguments about what James Madison believed or intended to produce in the Constitution are irrelevant to modern day problems because the Framers could not foresee the circumstances of modern life.

Time in the early years of the new Republic ran much more slowly than it does today. For example, the Battle of New Orleans was fought on January 8, 1815. Hostilities continued in Louisiana until January 18. But the Treaty of Ghent, which ended the War of 1812, had been signed on December 24, 1814. So the news that the war was over took 25 days to reach the battlefront.

Under such circumstances, Congress had plenty of time for such things as declaring war and debating strategies. Today, that time lapse has vanished. The President has to make decisions within a window of opportunity of hours, not days. The mechanizations of Congress and the Courts are too slow to cope decisions that require immediate actions.

The problem with falling down the rabbit hole of Constitutional infallibility is that you are likely to meet Justice Scalia coming back the other direction. In dissenting to NLRB v. Canning, Scalia wrote

The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court's role in controversies involving the separation of powers and the structure of government.

Scalia was referring to the power of the President to make recess appointments. The Republican members of the Senate determined to oppose every appointment proposed by the president, regardless of its individual merits. They refused to let Obama appoint sufficient members of the National Labor Relations Board to make a quorum, thereby effectively nullifying the NLRB's ability to act. Scalia's opinion meant that the Constitution is obsolete, because the Senate never actually has a recess and therefore the president has no power to make recess appointments as specified in the Constitution.

Scalia and Turley may not agree on many political points, but they do share the conviction that it is very important to interpret what the Constitution says on any issue, even those on which the Constitution is silent. I contend that this agreement is facial evidence that the Constitution is broken.

The Constitution is broken because the Framers lived 200 years ago and are separated from everyday reality by 200 years of history. They are therefore profoundly ignorant of the conditions of modern life. Although possessed of massive legal expertise, the Framers were not clairvoyant. Using their opinions to make decisions today makes as much sense as calling in a spiritual medium to reveal the thoughts of James Madison.

The primary harm caused by this mummery is that the average citizen has no idea what the laws of the nation are at any time. A written Constitution made sense 200 years ago, but trying to fit modern laws to its procrustean bed makes no sense today. True, a cottage industry has grown up around such efforts, and Justice Scalia and Lawyer Turley both benefit from Constitutional controversy. But the rest of us do not. It is time to reset the scales of justice in a sensible manner and quit relying on the scribblings of the past to guide our conduct today.

The myth of Constitutional infallibility is just as injurious as the myth of divine infallibility, which supposes a supreme being who knows all things. In both cases, individual interpreters can pretend divine inspiration and contravene the decisions of legislatures and democratic elections. The nation should be governed by laws, not legends.

Laws in Chaos: SCOTUS is destroying America

The function of the Supreme Court (SCOTUS) is to establish laws. It does so by making decisions that guide all other courts in the country. This is a great power and a great responsibility. The current SCOTUS has not only abused this power, it has acted so irresponsibly that it has confused and contorted existing, established laws. It has created a situation where, in some important areas, no one knows what the laws are any more.

This confusion can be seen in SCOTUS handling of abortion cases. In their recent ruling on whether an abortion clinic can keep protesters from getting too close to patients, SCOTUS pretended that the case was about free speech rather than a woman's right to have an abortion. They struck down a buffer zone of 35 feet in Massachusetts. This 35-foot buffer, ruled SCOTUS, prevented anti-abortion mobs from getting close enough to the prospective patients to "reason" with them.

Anyone who has seen an anti-abortion mob in person or on tv knows that these mobs shout rather than reason and use their bodies to block women from getting into the clinics. Furthermore, the people in these mobs carry large signs that express their opinion very well. The net effect of these mobs is to intimidate defenseless women from exercising the rights that a previous SCOTUS decision had guaranteed to them in 1973. Abortion laws have been blurred so thoroughly that individual states have succeeded in outlawing abortion by passing TRAP (targeted regulations against abortion providers) laws that make it impossible for abortion clinics to remain in business.

The most dubious achievement of SCOTUS has been to overturn one of the most fundamental purposes of the Constitution. It has created an established religion by ruling that a corporation can decide whether its employees can receive insurance benefits that violate the "sincerely held" religious beliefs of the corporation.

Let me explain. The religious beliefs of the owners of Hobby Lobby forbid certain forms of birth control. The owners decided not to pay for insurance policies that provide those types of birth control to thousands of its employees (only the female ones, of course). Hobby Lobby took their case to the supreme court, which agreed with them. But the beliefs of the owners of Hobby Lobby are the beliefs of a few Christian sects. The Supreme Court ruled that the beliefs of these sects take precedence over the beliefs of Hobby Lobby employees (only the women) who will now be forced to pay for birth control out of their own pockets.

Take note: The Supreme Court ruled that certain Christian beliefs must be observed by employees of the Hobby Lobby (only the women), no matter what the personal religious beliefs of those employees may be. If the (female) employees fail to observe these beliefs, they will be punished by having to pay for their own contraceptives. While the Court assures us that this will have no effect on any other medicines or procedures a company decides not to pay, and additionally will have no effect on companies that are not "closely held", the Court track record on such predictions is abysmal.

This is not a "narrow" decision that only affects a few people. In the first place, it affects all women of child-bearing age, a large group. But this decision also opens the floodgates for every employer to make demands on their employees of any kind whatever. When the Supreme Court makes a decision, every court in the country must abide by that decision. When corporations see this decision, they will start looking for ways they can save money by denying benefits to their employees. The corporations will do this because they are not, as SCOTUS would have us believe, persons with sincerely held religious beliefs, but because they are businesses that exist to make a profit any way they can.

Employers know they can place any restrictions on their employees they want. Their employees may sue them in court, but federal cases proceed at a glacial pace. It will be years, or decades, before the Supreme Court gets around to ruling on whether the restrictions on employees are constitutional or not. In the meantime, corporations making such demands will be able to profit from their denial of constitutional rights.

The current Supreme Court seems intent on confusing the people so much that we don't know what is legal and what is not. The Court has decided that controls on election campaign donations are violations of our freedom of speech. Well, not our freedom of speech exactly, but the freedom of speech of corporations and the one percent. Apparently the Court believes that giant corporations and billionaires did not have enough opportunity to express their opinions, while we ordinary folks, the 99 percent, had too much. According to the Court's tortuous reading of the Constitution, the framers intended to give extraordinary rights to corporations (which hardly existed at the time) and political donors (a foreign concept in 1789). The Court declared in a particularly egregious decision that corporations have the same rights to donate money as actual, flesh-and-blood people.

SCOTUS believes that only rich people need their rights to speak freely in elections protected. They believe that only Christians protesting abortion need their rights to speak freely protected. What about the rest of us? This SCOTUS is not concerned about us. Their lack of concern is hardly surprising, since most of them were nominated by Republican presidents with regressive views on sex, voting, and minority rights. Furthermore, while there are 435 Representatives in the House, and 100 Senators in the Senate, there are only nine Supreme Court Justices who have the power to mold American laws in their own, regressive, prejudiced, and outmoded image. Nine people can decide whether African Americans have the right to vote or whether women have the right to choose their own birth control. This situation is the sort of thing that tyrants have always longed for. Caligula, a Roman emperor in the first century CE, once expressed the desire that the Roman Senate should have a single head so that he could cut it off. This is the power that radical Republicans hold today.

SCOTUS has become a body that reflects the obsolete views of a political class that has not been the majority in this country since the defeat of Herbert Hoover by Franklin Roosevelt in 1932. Roosevelt himself recognized this glaring inequity by proposing to increase the number of Justice from nine to 15. We can and must do better than that. We must negate the power of SCOTUS by giving more power to the people through the adoption of a national initiative that would enable regressive decisions of the Supreme Court to be overturned by a vote of the people, not in the House of Representatives or the Senate, but in a national election where all the people can vote on important issues and make decisions democratically.

A New Bill of Rights for We the People

The current Bill of Rights concerned individual rights to be protected from the government. These rights were important at the time, when a war had recently been fought against the British monarchy. The American Revolution was a clash between those who believed that one class of people, the nobility, was superior to all others, and others who believed that there should be no perpetuated classses. This was the original meaning of the Declaration of Independence, when it declared that all men are created equal.

Authoritarian governments, like the English monarchy, recognized no rights among the people, only obligations. The people had the obligation to respect the sovereign, pay their taxes, and fight for him, if necessary. The American colonists objected to this view of their rights. Many of the colonies had been opposed to the English monarchy and nobility. They objected to the King's attempt to reclaim his full rights, especially the right to tax. The original Bill of Rights addressed the abuses of the monarchy.

Events that led to the American Revolution were imposition of taxes on Americans, who were not represented in the English parliament; reorganization or abolition of American governing bodies; quartering English soldiers in America for the purpose of maintaining a standing army, which could defend or control the colonists; and seizure of arms intended for militias.

Such were the events that still troubled the minds of the Framers of the Constitution in 1789. Such were the evils that the Bill of Rights was intended to combat. But these evils were shortly diminished or rendered harmless. Militias were replaced by a standing army. Representation was provided by a Congress elected every two years. The federal government has never reorganized a state government, except after a civil war. The standing army was never quartered on the populace. The amendments that refer to those ills are no longer relevant.

New ills have taken their place. First among these new ills is inequality between the wealthy and the poor, an inequality of opportunity and an inequality of power. The ills associated with industrialization are rampant: unemployment, dislocation, exploitation of labor, hunger. Corporations, monopolies, and cartels prey upon the people and control the government, the press, and the courts. New rights need to be guaranteed to counter these modern ills.

The starting point for the People's Bill of Rights is the Virginia Declaration of Rights, adopted by the Fifth Virginia Convention in June, 1776. This declaration of rights was echoed in the Declaration of Independence adopted at Philadelphia in the following month. The Virginia Declaration also influenced James Madison when he drew up the first 10 amendments to the U.S. Constitution.

People's Bill of Rights

I. All people are by nature equally free and independent, and have certain inherent rights, of which, when they enter into society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

This is the first article of the Virginia Declaration of Rights, here referred to as Mason's Declaration, except that the word “people” has been substituted for the word “men” in the first line. It was appropriated into the Declaration of Independence by Thomas Jefferson, with some important changes. Jefferson's Declaration states that man is endowed by his creator. Mason's Declaration requires no such divine entity. Jefferson's rights are inalienable; Mason's are inherent, and he describes precisely what Jefferson refers to as inalienable, that is, that the people cannot deprive their posterity of these rights by any compact. Jefferson mentions three inalienable rights, namely life, liberty and the pursuit of happiness. Mason defines these rights more succinctly as the enjoyment of life and liberty, and pusuing and obtaining happiness. Mason also adds to these the means of acquiring and possessing property, and the ability to pursue safety.

Dropping this article from the U.S. Bill of Rights has the effect of removing the guarantee of equality. Mason also makes clear that the government is us, not an entity that was created by us and then took on a life of its own. Mason makes the people themselves those who cannot deprive their posterity of these inherent rights. This distinction erases the artificial opposition of the government to the people.

This article also answers the question whether corporations are people: No, they are not. A corporation is an artificial association of people that does not exist in nature and therefore has no inherent natural rights. Corporations, like governments, are creations of the people and responsible to them.

II. All power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

This article describes the kind of government this is, namely a democracy, since all power is vested in and derived from the people. It also describes the relationship of the government to the people, namely that the government is their creation and its functionaries are servants of the people. In a monarchy, such as Great Britain at that time, all power arises from the monarch, who is responsible only to himself. The people in a monarchy become the servants of the monarch, who can make laws and raise taxes as he sees fit, without their consent. The people have the right to petition the monarch, but cannot force him to alter his course. Any attempt to argue with the monarch is considered treason and can be severely punished. This is why there is no freedom of speech or of the press in a monarchy.

The framers of the Constitution were republicans, that is, they designed a republican form of government. In this sort of government, the people elect representatives who make all their decisions for them. The people become the servants of their representatives, who have all the power. The people hold elections, but the same people tend to return to power again and again, becoming a de facto ruling class, who are out of touch with the people they are supposed to represent.

III. Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.

This article reinforces the supremacy of the people over their government while it describes the attributes of a true democracy. Mason makes clear he does not necessarily favor a republican form of government unless a republic is capable of producing the greatest degree of happiness and safety and is most effectually secured against maladministration. The framers designed a republic that was inflexible and incapable of providing for the happiness of the people. Instead, the current Constitution guarantees the happiness of it rulers and gives them the power to threaten the safety of all. The waging of endless war, as some of our representatives favor, does not lead to the safety of the people; rather, it leads to an erosion of the civil liberties inadequately guaranteed under it. Civil liberties are seriously violated when the government can throw people in prison and hold them indefinitely without a trial, as is currently the case under our Constitution.

Our Decrepit Constitution: Remedies (Part Two)

6. Give the President More Domestic Power

The Founders persuaded the colonists to support the revolution by blaming a long list of problems on the King of England. They included this list in the Declaration of Independence. The Declaration also served—pehaps primarily—as a notice to the countries of Europe that the colonies wanted a new country, not reconciliation with the King. The colonists fought against the King and were not likely to accept a new monarch in his place.

The Articles of Confederation lacked a strong executive authority, which was seen as a major weakness. So the new Constitution had to describe a middle road. The office of the Presidency was a compromise between the power of a monarch and the limited authority of an administrator appointed by the Congress.

The President at first glance appears impressive. But the President does not propose a budget; only the House of Representatives can introduce spending measures. The President can appoint his cabinet, but they must be approved by the Senate. The President can negotiate and sign treaties with foreign nations, but the Senate must approve them before they go into effect. Likewise, the President appoints judges, but the Senate approves them.

This situation has lasted for two hundred years. At the beginning, when there was mutual respect between Congress and President, the system worked fairly well. As time went by, it worked less and less well. Today, Congress sees its approval as conditional on concessions from the executive branch, or simply as a way to attack the President.

It is absolutely impossible to imagine a corporation operating successfully under similar restrictions. The CEO appoints subordinate executives without any interference from the Board of Directors. The CEO proposes plans for the Board to approve, but once the plan is agreed upon, the CEO may implement the plan in any manner he or she sees fit. The President should have similar powers.

In line with their limited powers under the new system, the Senate may have veto power over presidential appointments, but only for 60 days. After that waiting period, the appointment becomes official.

7. Impeachment should be abolished

When it came time to establish procedures for removing a President from office, the Framers adopted a complex set of rules for impeachment, modeled after the British Parliament's impeachment procedures. In recent years, other procedures have been substituted for impeachment. The House or Senate may expel a member without any complex, quasi-judicial process. There is no reason to continue using this creaky, 18th century artifact, except that it can be used to completely stymie the political program of a president, as happened in President Clinton's second term. That alone is a reason to abandon the process, not to preserve it.

The last impeachment proceedings held in the Congress, against William Clinton, were entirely political in nature. The Republican House indicted Clinton with only five democratic representatives voting to impeach. The Republican Senate voted to convict Clinton with none of the democratic senators joining the Republicans.

The impreachment of President Clinton was a direct result of a Supreme Court ruling that Paula Jones could bring a charge against him in a civil court because there was little likelihood that he would be hindered in his duties as president while answering the civil suit (Clinton v. Jones, 1997). The Supreme Court was unanimous in this decision and they were completely wrong. Clinton spent much of the rest of his term as president embroiled in the Paula Jones case and the impreachment that followed.

After the National Initiative Amendment is passed, the Constitution may substitute a much simpler procedure involving a recall election. The House may vote for a recall by a two-thirds majority to place the recall on a special election ballot. The election must be held within 30 days to avoid any undue delay. If the President loses the recall election, he is immediately removed from office and the Vice President assumes his duties.

8. Sign International Treaties and Remove Exceptions

American Exceptionalism is a theory that regards the U.S. as a special nation. The idea has become part of conservative dogma since the 1980s. Ronald Reagan introduced the concept, if not the name, in a speech delivered to the first Conservative Political Action Committee. Reagan claimed he had a mystical revelation that America was part of a divine plan that involved men who believed in freedom and had a special kind of courage. 

Reagan backed up his mystical belief in that speech with a number of examples drawn from history, particularly the history of the founding fathers. Most of his examples were entirely false, but Reagan connected with the conservative movement with his folksy charm and his Hollywood-inflected view of the world and world history. 

Since the 1980s, the U.S. has withdrawn more and more from the family of nations. It has failed to sign treaties that offered cooperation on war and peace, the climate crisis, and the law of the sea. While President George H. W. Bush conducted an attack on Iraq with a broad coalition of nations under the auspices of the United Nations, his son rejected the advice of the U.N., instead attacking Iraq with a small coalition of U.S. allies. This action violated the United Nations Charter by carrying out an aggressive war that did not respond to a threat against our nation. 

Bush appointed an ambassador to the U.N. who stated that there was no United Nations, that the U.S. was the only real power in the world and that sometimes the U.S. could persuade other countries to follow its lead. This is an expression of American exceptionalism that few countries in the world could accept.

As a result of this quasi-religious belief in American exceptionalism,

the U.S. Senate has repeatedly failed to ratify treaties intended to increase cooperation between the countries of the world. Instead of leading the rest of the world, the U.S. has pursued its own interests in despite of any other country's opinions.

The Supreme Court has fallen in line with this belief. Its conservative members refuse to consider any court rulings from outside the U.S. as persuasive. This position is insulting to jurists in other countries, especially those who have been working for world peace and cooperation. Rulings of the Supreme Court have also reduced the reach of the Alien Tort Statute, further eroding any possibility of legal remedies for victims of injustice overseas.

We the people must curtail the power of the Senate to block implementation of treaties which the executive branch has negotiated and agreed to. These treaties could be approved by initiative and referendum, but that process is time-consuming and unnecessary. The Senate should have the power to block treaties for one year only. After one year, if the Senate hasn't approved a treaty, it should go into effect automatically.

9. Incorporate the International Declaration of the Rights of Man into our Constitution

The U.S. helped form the United Nations after World War II. We were then the world leaders calling other nations to move toward a peaceful world. In recent years, due in part to the theory of American Exceptionalism, we have moved away from a vision of the world which was ours. We the People should reclaim this vision.

The Framers believed that the Bill of Rights guaranteed all the rights that government should be concerned with. Their vision of the world did not extend farther than that. At that moment in time, the Bill of Rights was a laudable achievement. But we no longer stand at that moment in time.

Americans believed in 1945 that they possessed all the virtues in the world, since their armies had just defeated the alliance that embodied all the evils in the world. Sixty years later, we know better. We have seen our own country commit unspeakable crimes, bomb defenseless civilian populations, torture captives, imprison captured enemy soldiers indefinitely without trial. We can have only two reactions to these crimes: We can embrace a theory that defines them as virtues, since the country that committed them is ordained by God to be the savior of the world; or we can atone for our errors by becoming the world leader for peace and prosperity that we once were and can be again.

Our Decrepit Constitution: Remedies (Part One)

The National Initiative Amendment (NIA) is the only way to resolve our Constitutions problems in the long run. There are a number of stop-gap measures we can take without amending the constitution, but these would be just as hard to pass as the NIA, so there would be little point in wasting our energy on them. Once we give the power to amend the Constitution back to We the People, there are a number of measures we can take to restore the balance between competing interests.

1. Increase the number of Senators

The Constitution provides for two senators to represent each state. This has led to many problems, chief among them the fact that California, with 35 million residents, has the same number of senators and the same relative power as Delaware, with under a million. This imbalance leads to defeats for issues of interest to large states, such as gun control.

The U.S. Senate was modeled on the House of Lords. Like the Senate, the Lords became a barrier to passing bills for the common good. The House of Commons partially resolved the problem by increasing the number of Lords. We, the People, could resolve the Senate problem by adding another 100 Senators to be elected at large. By definition, these Senators would represent a larger constituency than any of the current Senators. Small states would still have disproportionate representation, but nothing could stop one of the small-state senators from running at large. Such a candidate must appeal to a broader electorate than one running in a small, homogeneous state.

Other, more drastic measures may be taken. The Senate could be abolished altogether, or Senators could retain the ability to block bills (which is their primary function now) but only for three years.

2. Elect the Supreme Court

Life appointment for Supreme Court Justices was intended to free them from political pressures, giving them liberty to vote their conscience. This idea never worked very well, since the Justices are nearly always members of the elite classes. Recently, the idea of apolitical Justices must appear a cruel hoax. Observers can usually predict which justices will join a majority. Presidents appoint younger and younger justices to prevent the opposing party from gaining a majority on the court. Retiring justices choose the terms of like-minded presidents to give up their seats. The Court has actually become a third legislative body, one with even less variety of opinion than the Senate.

We, the People, should make the Court responsible to us by forcing the Justices to run for election every seven years. Renowned jurists who can't get seats on the current, highly politicized court, should be happy to run for such a prestigious post. Presidents could still fill vacancies with the consent of the Senate, but they would be forced to make better choices if they want their appointees to withstand an electoral challenge.

3. Normalize the Laws

Another measure would be to remove the appellate responsibilities from the court, or abolish the federal bench entirely. The Federal Bench exists side-by-side with the state courts, with many of the same responsibilities. All courts should be combined into a single, national system of district courts and appellate bodies. Instead of striking down laws they deem improper, the judges in this system could replace the offending laws with others that have been passed in other states. Many states have similar legal codes already. This blending of federal with state authority would discourage state legislatures from passing frivolous laws that pander to the electorate.

This system would also discourage well-heeled groups like ALEC from changing the laws, state by state, to favor corporations and the wealthy. Judges would be free to ignore changes made by ALEC and other groups in favor of more moderate laws.

Lawyers should be allowed to practice in any state, since the laws would, over time, tend to be similar. State Bar Associations would lose their monopoly control of the legal profession. Legal professionals could practice in any state without fearing law suits from the State Bar. The cost of legal assistance would decrease, enabling ordinary people to better afford lawyers.

4. Abolish the Electoral College

We, the People, should elect presidents by majority vote. If no candidate achieves a majority, we should hold a runoff election. Third parties would be able to participate in elections without fear that their participation would defeat candidates with whom they agree on most issues.

There is currently a National Popular Vote movement (NPV) to sidestep the electoral college by passing laws in each of the states. These laws commit the states to cast their electoral votes for the candidate who wins the majority of all votes cast in all states. NPV flips current presidential campaigning on its head. Candidates would spend most of their time and money in the largest states instead of in the key swing states.They would have to take positions on important issues instead of avoiding them.

NPV avoids the Amendment process but ends up with laws that can be repealed without using the Amendment process. It also fails to institute a runoff system, as described above. It does not encourage third party candidates, since it will rob them of any electoral votes they might have gotten using the current electoral system. This could lead to appeals through the courts, throwing elections into confusion for other reasons, such as when a third-party argues that the anti-electoral college law prevents third parties from getting the votes necessary to appear on ballots. Current election laws are a tangled thicket that may cause unforeseen problems.

The instability of the NPV, which could be undone by the votes of only a few states (assuming it ever passes) will lead to more electoral confusion, not less. The supporters of this plan have a good idea, but the execution would likely be chaotic and reversible within a few years. NPV will go into effect when the states that have adopted it have enough electoral votes.

NPV now has about 50 per cent of the states necessary to put its plan into action. From here on, however, it will run into the same problem of the electoral college, only in reverse. Each state that passes NPV will now be a state that benefits from the current situation.

Another movement, much less realistic, to reform the electoral college would divide the nation into 50 new states with equal populations. The logistics of this proposal make it impossible. State governments are huge, unwieldy bureaucracies that have taken root in one place for up to 200 years. Moving one of these bureaucracies to a new location would create a complex mess and cost a fortune. Moving 50 of them might take another 200 years.

5. Undo the Corporate Strangle Hold on Our Laws

In the late nineteenth century the Supreme Court discovered that the Due Process Clause of the Fourteenth Amendment applied to corporations, though they couldn't figure out how to use it to help African-Americans. In 1890, Congress passed the Sherman Anti-Trust Act to regulate corporations. The Courts permitted the Sherman Act to be used against Unions, which it declared illegal combinations as defined by the law. In United States v. E. C. Knight Company (1895), the Supreme Court upheld the appeal of the American Sugar Refining Company, which controlled 98 per cent of sugar refining in the U.S., because this control did not constitute a restraint of trade.

During the last years of the twentieth century, Congress responded to public concern about corporate lobbyists influence in politics by passing modest reforms. In Citizens United v. FEC (2004), the Supreme Court reversed much of what reformers had accomplished. In his dissent, Justice Stephens cited earlier Court decisions that recognized that corporate spending on elections should be viewed as a business transaction designed for no other purpose than profit-making. Corporations unfairly influence elections with vast sums of money that few individuals can match. Finally, Stephens pointed out that the mere appearance of impropriety fostered by Corporate campaign contributions would have a chilling affect on voter participation.

Stephens' arguments fell on deaf ears. The Court, as so often before, sided with corporations against the interests of ordinary citizens. One protection for We the People would be to limit the power of the Court by limiting its terms and making it easier to overrule their decisions with a national initiative. Critics of the Citizens United decision have proposed a Constitutional amendment to overturn it. A constitutional amendment would require majority votes of both houses of Congress and passage by three-fourths of the state legislatures. The amount of time, energy, and treasure necessary for the effort is enormous. This massive effort, involving millions of citizens, is required to counter the opinions of five Republican Justices. Nothing about our republic is less democratic than this proposition.

An amendment should be passed outlawing corporate spending in political elections. Laws should be instituted imposing heavy penalties for corporate officers who authorize anonymous spending from the corporate coffers.