The Constitution of the United States Revised and Updated 3031404254, 9783031404252

Table of contents :
Preface and Acknowledgements
Contents
Chapter 1: Introduction: Rebirth of America Through Constitutional Enrichment
How to Read the New Updated Constitution
Chapter 2: The Constitution of the United States Revised and Updated
Article I
The House of Representatives
The Senate
The Budget Processes
Immigraton, Citizenship
Other Federal Powers
The Military
Restrictions on Federal Power
The President
Article II
Federal Court System
Article III
The States
Article IV
Article IV
Three Ways to Change the Constitution
Article V
Article VI
Ratification
Article VII
Amendments XI to XXVII, 1795–1992
Bill of Rights
Article I
Right to Religious Freedom
Article II
Right to Free Speech and Press
Article III
Right of Assembly and Right to Form Employee Unions
Article IV
Right to Bear Arms and Restrictions
Article V
Reproductive Rights and Non-Discrimination
Rights Within the Criminal Justice System
Article VI
The Right to Privacy
Article VII
Bill of Goods
Water
Article I
Air
Article II
Food
Article III
Education
Article IV
Health Care
Article V
Minimum Wage
Article VI
A Healthy Environment
Article VII
Bill of Citizen Duties and Responsibilities
Article VIII
Chapter 3: Historical and Analytical Justifications for Revisions to the United States Constitution
Restrictions on the Power of the President
Chapter 4: Why a Constitution Is Necessary. Philosophers on Constitutions: Aristotle and John Adams’ Defence
Aristotle on Constitutional Government
John Adams’ Examination of Ancient Philosophers and Historians
John Adams’ Survey of Modern Thinkers
Adams’ Surveys of Ancient and Modern Constitutionalism: Some Observations
Chapter 5: The Federalist Papers: Constitutional Structures
The Federalist Papers
Chapter 6: Specific Topics Under Constitutional Consideration in Aristotle, John Adams, Alexander Hamilton, James Madison, and Benjamin Franklin
Chapter 7: Constitutional Topics in the Jefferson/Madison Correspondence, Common Fears and Worries in the Correspondence and the Federalist Papers
American Government Rests on the Sovereignty of the People
Major Fears and Worries: The States
Major Fears and Worries: Insurrection
Chapter 8: Bill of Rights I: The Establishment Clause and the Right to the Free Exercise of Religion
A Brief History of Religious Freedom
Chapter 9: Bill of Rights II: The Right to Bear Arms
Chapter 10: Bill of Rights III: Reproductive Rights and Sexual Non-discrimination
Six Additions to the New Constitution
Can a Human Fetus Think or Feel?
Does an Abortion Harm a Woman?
The Relation of People to Their Bodies
The United States Supreme Court, Dobbs versus Jackson Women’s Health Organization
The Right Not to Be Born
Right to an Abortion a Universal Right
Arguments of the Philosophers and Summary
Chapter 11: Bill of Rights IV: The Right to Free Assembly in the Workplace, the Right to Establish, Participate or Not Participate in Unions
Unions Necessary to Combat Deleterious Effects of Powerful Corporations
Labor Relations and Taft-Hartley
Union “Busters.”
U. S. Supreme Court, Janus v. American Federation of State, County, and Municipal Employees
Chapter 12: Bill of Rights V: The Criminal Justice System
The Founders and the Death Penalty
Why the Death Penalty is Unacceptable
Impact on Surviving Families and Friends
Chapter 13: Bill of Rights VI: The Right to Privacy
Chapter 14: Bill of Goods and Duties and Responsibilities of American Citizens
Chapter 15: John Dewey: Premier Philosopher of American Democracy
The Engaged Philosopher
Admiration for Jefferson
Henry Maine’s Criticisms of Democracy and Dewey’s The Ethics of Democracy (1888)
“Christianity and Democracy” (1892)
“Philosophy and Democracy” (1919)
“Creative Democracy” (1939)
“Philosophies of Freedom” (1928)
Critics of Dewey’s View of the United States Constitution
Dewey’s Responses to Criticisms
Summary Description of John Dewey’s Contributions to Democracy and American Constitutionalism
Chapter 16: The Dignity of Human Beings as Members of the Biotic Community
Dignity Assessed in Relation to the Cosmos
First Level of Dignity
Second Level of Dignity
Third Level of Dignity
Works Consulted
Primary Sources
Secondary Sources
Author Index
Subject Index

Citation preview

The Constitution of the United States Revised and Updated Michael H. DeArmey

The Constitution of the United States Revised and Updated

Michael H. DeArmey

The Constitution of the United States Revised and Updated

Michael H. DeArmey School of Humanities University of Southern Mississippi Hattiesburg, MS, USA

ISBN 978-3-031-40425-2    ISBN 978-3-031-40426-9 (eBook) https://doi.org/10.1007/978-3-031-40426-9 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the ­publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and ­institutional affiliations. Cover illustration: Daniel Thornberg / Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

For my wife Stephanie and my daughter Lisa Weaver and her family

Preface and Acknowledgements

For reasons cited in Chap. 1, “Introduction,” the American Constitution is a very brief document. If the twenty-seven Amendments are included, it contains only 7591 words. It is cited in one source as “the oldest and shortest written Constitution of any major government in the world.”1 The major Founding Fathers—Madison, Jefferson, Hamilton, Jay, Franklin— expressed concerns about the finished document.2 It would not deviate too far from the truth if one applies what Jefferson said about the Bill of Rights to the entire Constitution—“half a loaf is better than no loaf at all.” The Founders were partly stymied in what they wanted to do by the fact that there were already sovereign States that must agree and ratify a national government. They expected that there would be future amendments, but they raised the bar too high for this very brief Constitution to be enriched by amendments which incorporate revisions and additions necessary for changes in society over the decades. The Founders were Enlightenment geniuses in politics, but they were not prophets. Many of the difficult problems besetting American democracy can be overcome by a rebirth in our Constitutional government. It is a gross error to put necessary and foreseeably permanent benefits in the hands of politicians. It results in politicians playing ping-pong with what is needed, and sometimes desperately needed, in our democracy. Laws, statutes, Presidential edicts are passed, overturned, only to be passed again. 1  Constitution Facts.Com. “Fascinating Facts About the Constitution.” My italics. Access at: https://www.constitutionfacts.com/us-constitution-amendments/fascinating-facts/ 2  See Chaps. 5, 6, and 7.

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Polarization in government as well as society, the result of what might be called “intensification” or “acceleration” of public conversations, means that not much can be done, and what is done is a truncated version of what should have been done. Amending the Constitution is now virtually out of the question given the high bar set by the Founders and the fact of political polarization. As you read this work, what will be before your eyes is a new, revised, and updated Constitution, which gives important and long-lasting benefits to our citizens, benefits which are part and parcel of the “blessings of liberty,” and places them out of reach of both Congress and the Supreme Court. This enriched, reborn Constitution in some of its revisions and additions meliorates or disposes of altogether many of the problems which are currently intractable. At the same time this normative Constitution retains much of the original Constitution, so loyalties and oaths are intact. No less a thinker than John Dewey pointed to the fact that beliefs, theories, ideas age and begin to lose their function in the evolving social context, just as physical objects wear out and need replacement. Dewey calls this replacement “reconstruction,” and the view entertained here is that our beloved Constitution needs reconstruction in present-day society. Only some of the lasting benefits of this new, normative Constitution can be mentioned in this Preface. One addition compels members of the House and the Senate to engage in cooperation, good will, and a willingness to compromise. Failure to do this results in their careers in Congress ending at sixteen or eighteen years respectively. Another addition compels members of Congress and the President to pass timely budgets for no less than a year, non-compliance resulting in fines for each day beyond the stated deadline. The American people are subject to many stock promises and empty clichés during federal and State campaigns, without really knowing much about the candidates. So, one important addition mandates that persons running for federal offices reveal substantial information about their lives, including formal education, their taxes for five years, and proof that they have knowledge of basic subjects that any government official should know, including the nature of truth, how science works, environmental problems, and awareness of the struggles of poor families by visiting their homes firsthand. Finally, this enriched Constitution sets out the rights of American citizens: The Right of Free Expression of Religion within the parameters set by the Establishment Clause, compels governments to be entirely neutral, neither favoring a particular religion, nor religion in general, nor

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anti-religion. The Right to Bear Arms is established in such a way as to reduce the number of murders, injuries, attempts at armed insurrection, and to increase “domestic tranquility,” while at the same time granting those eighteen and older the right to own pistols, rifles, and shotguns but not weapons of military grade. The Right to Privacy is taken out of the shadows of a “penumbra” of Articles in the original Constitution and is firmly established in this new Constitution. Reproductive Rights and Banning of Sexual Discrimination are established, firmly based on both scientific data and the freedom that women desire to control their own bodies. This normative Constitution affirms that people have different sexual orientations and different sexual self-ascriptions, and, excepting harm, these are ethically and legally acceptable. The new Constitution assimilates the original Constitution’s “right of free assembly” and “right of free speech,” and on this basis states that employees have a Right to Join Unions and a right to decline joining Unions, not to be denied or abridged by federal or State governments. The new Constitution bans capital punishment and affirms the Right Not to Be Executed by State or Federal Governments. The all-important justifications for these revisions and additions to the Constitution begin following the new Constitution of Chap. 2. The justifications of Chap. 3 are argued for in a hopefully rigorous manner, using logic, science, and our history beginning with the Founders (Chaps. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13). Entirely new is a Bill of Goods, the most basic items needed by citizens both to survive and to have a decent life: Clean and available water, clean air, nutritious food, affordable health care, education for democratic citizenship and sufficient education for every adult to be able to stand on his or her own two feet in being a productive citizen and earn a living wage. Also entirely new is a brief list of the most Basic Duties and Responsibilities for Good Citizenship: Respect for Others, Care for Others taught at childhood, Freedom consistent with everyone’s freedom, Respect and Care for Nature (species and habitats), Attention to the News, and American support for Cooperation and Cosmopolitanism among nations. These duties are each defensible and have a wonderful pedigree in world history. They are duties and responsibilities for a healthy democracy, and it does not matter whether the moral precepts in one’s religion are Native America, Muslim, Christian, Buddhist, Hindu, Jewish, or other; none of these religions is denigrated by the five just cited. Anyone who wishes for an authoritarian society in which citizens are told what to do, those persons

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are free to apply for citizenship in Iran, North Korea, Russia, Afghanistan, or some other dictatorship. It may well be the case that constitutions worldwide need enrichment. If a constitution is enriched in the manner of the updated Constitution in this work, and if that constitution is locked into a Supreme Court with the power to declare various laws, statutes, and edicts unconstitutional, and if the military and all government officials swear to support that constitution, then citizens everywhere will receive the “blessings of liberty” and a greater happiness.3 Finally, many of the considerations in this book, including new additions to the Constitution, have been derived from legal theorists and philosophers on the one hand, and many unnamed Americans on the other, especially students to whom the future belongs. Both conservatives and progressives, those on the left and those on the right, will find Articles in the new Constitution that they will want to embrace. They will also find that everyone must sacrifice a little to put our country on the right track. Readers who compare the new, normative Constitution with constitutions of France, Germany, Sweden, or China, to name just four, will find this new Constitution much easier to read and better organized than most. This document aims at strengthening and increasing the size of our middle class. Recall Aristotle’s dictum, “The middle class saves States.” I would like to take this opportunity to thank my parents, Amy and Mack DeArmey, and my professors for their encouragement over the years. My undergraduate professors at the University of Memphis were outstanding, and they include William Barton, Carroll Bowman, John Baird Callicott, David Coomber, Gene James, and Nancy Simco. At Tulane they were equally outstanding—Andrew J.  Reck, James K. Feibleman, John Glenn, O. Harvey Green, Shannon Dubose, Donald Lee, and Carl Hamburg. At Yale I was fortunate to attend classes under Robert Brumbaugh on Whitehead and Peter Gay on Freud and 3  A word about political polarization and “intensification” mentioned above. Social scientists have discovered that like-minded people when questioned individually say similar things about a problem or the answer to a question, but when these same people get together and talk, their original beliefs become more and more extreme the more they converse among themselves. The more they talk, the more they move away from beliefs different from their own. They reach a point when they feel that their identity, their honor and dignity is bound up with the beliefs of their collective. This establishes polarization. See Robert B. Talisse’s chapter on polarization in his Overdoing Democracy. Why We Must Put Politics in its Place (New York: Oxford University Press, 2019), 95–127.

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Psychoanalytic History. And my periodic meetings with John E.  Smith were rewarding, especially his recounting his days with John Dewey. I am grateful for my wife Stephanie who encouraged me, and as editor in the Center for Oral History and Cultural Heritage at the University of Southern Mississippi was invaluable as a critic and proofreader. Finally, Brendan George and the professional and gracious people at Springer Nature Palgrave/Macmillan have made the publication of my book an enjoyable experience. Hattiesburg, MS, USA

Michael H. DeArmey

Contents

1 I ntroduction: Rebirth of America Through Constitutional Enrichment  1 How to Read the New Updated Constitution  16 2 T  he Constitution of the United States Revised and Updated 19 Article I  19 The Senate  23 The Budget Processes  26 Immigraton, Citizenship  27 Other Federal Powers  27 The Military  28 Restrictions on Federal Power  29 The President  30 Federal Court System  34 The States  36 Three Ways to Change the Constitution  37 Article VI  38 Ratification  38 Amendments XI to XXVII, 1795–1992  39 Bill of Rights  43 Rights Within the Criminal Justice System  48 The Right to Privacy  49

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Bill of Goods  49 Water  49 Air  50 Food  50 Education  51 Health Care  51 Minimum Wage  52 A Healthy Environment  53 Bill of Citizen Duties and Responsibilities  53 3 H  istorical and Analytical Justifications for Revisions to the United States Constitution 55 Restrictions on the Power of the President  80 4 W  hy a Constitution Is Necessary. Philosophers on Constitutions: Aristotle and John Adams’ Defence 99 Aristotle on Constitutional Government 100 John Adams’ Examination of Ancient Philosophers and Historians 108 John Adams’ Survey of Modern Thinkers 113 Adams’ Surveys of Ancient and Modern Constitutionalism: Some Observations 117 5 The Federalist Papers: Constitutional Structures121 The Federalist Papers 122 6 S  pecific Topics Under Constitutional Consideration in Aristotle, John Adams, Alexander Hamilton, James Madison, and Benjamin Franklin143 7 C  onstitutional Topics in the Jefferson/Madison Correspondence, Common Fears and Worries in the Correspondence and the Federalist Papers163 American Government Rests on the Sovereignty of the People 163 Major Fears and Worries: The States 167 Major Fears and Worries: Insurrection 170

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8 B  ill of Rights I: The Establishment Clause and the Right to the Free Exercise of Religion175 A Brief History of Religious Freedom 181 9 Bill of Rights II: The Right to Bear Arms207 10 B  ill of Rights III: Reproductive Rights and Sexual Non-discrimination217 Six Additions to the New Constitution 217 Can a Human Fetus Think or Feel? 218 Does an Abortion Harm a Woman? 220 The Relation of People to Their Bodies 222 The United States Supreme Court, Dobbs versus Jackson Women’s Health Organization  223 The Right Not to Be Born 228 Right to an Abortion a Universal Right 229 Arguments of the Philosophers and Summary 231 11 B  ill of Rights IV: The Right to Free Assembly in the Workplace, the Right to Establish, Participate or Not Participate in Unions235 Unions Necessary to Combat Deleterious Effects of Powerful Corporations 235 Labor Relations and Taft-Hartley 237 Union “Busters.” 239 U. S. Supreme Court, Janus v. American Federation of State, County, and Municipal Employees  241 12 B  ill of Rights V: The Criminal Justice System249 The Founders and the Death Penalty 249 Why the Death Penalty is Unacceptable 251 Impact on Surviving Families and Friends 258 13 Bill of Rights VI: The Right to Privacy261 14 B  ill of Goods and Duties and Responsibilities of American Citizens267

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15 J ohn Dewey: Premier Philosopher of American Democracy269 The Engaged Philosopher 269 Admiration for Jefferson 271 Henry Maine’s Criticisms of Democracy and Dewey’s The Ethics of Democracy (1888) 272 “Christianity and Democracy” (1892) 277 “Philosophy and Democracy” (1919) 277 “Creative Democracy” (1939) 279 “Philosophies of Freedom” (1928) 280 Critics of Dewey’s View of the United States Constitution 283 Dewey’s Responses to Criticisms 284 Summary Description of John Dewey’s Contributions to Democracy and American Constitutionalism 286 16 T  he Dignity of Human Beings as Members of the Biotic Community289 Dignity Assessed in Relation to the Cosmos 290 First Level of Dignity 291 Second Level of Dignity 292 Third Level of Dignity 293 Works Consulted299 Author Index305 Subject Index309

CHAPTER 1

Introduction: Rebirth of America Through Constitutional Enrichment

Two hundred and thirty-six years have passed since September 17, 1787, the day when the Constitution of the United States was signed, first by George Washington, then by thirty-eight other delegates. The construction of the Constitution was an amazing feat, a major achievement of the Framers who were indebted to the principles of Enlightenment thinking and values. The war with England behind them, Sapere Aude (Dare to be Wise) could have been their catchword. Delegates to the Constitutional Convention pondered history, philosophy, ethics, politics, and more, in the valiant attempt to produce a great nation. That they succeeded is a testimony to the power of reason and the importance of being well-­ educated, and especially so, given the unique difficulties encountered. What were these difficulties? First, they were creating a nation from scratch. Second, there was a mountainous roadblock given the fact that there were already thirteen sovereign states. Imagine a different scenario: the English and other Europeans set ashore on the east coast and began settling into a greater and greater area. Imagine that they did not form separate States, but instead formed one government for the entire population and occupied land mass. In such a scenario they would not have had the great impediment to national unity that the Founders encountered--separate and sovereign States. The States were in effect separate countries. How could national unity be achieved if the States valued their sovereignty and would therefore be reluctant, even adamant, against letting it be reduced or eliminated? How could the Framers convince the States to approve and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_1

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ratify the new Constitution unless sufficient concessions were made granting them various powers and authority that would weaken national unity? For many of the Founders, the States were their central and most worrisome problem (see below, Chap. 7). This book has three main objectives. First, with the assistance of many thoughtful friends of American democracy, a new, revised, and updated United States Constitution is carefully set out. The reader may interpret this new Constitution as normative for our time, that is, it is what the Constitution ought to look like given a society that has undergone profound changes since 1787. The reader may also interpret this new Constitution as a document worthy of ratification by the people of the United States in the form of a national referendum. The Founders regarded a constitution as ultimately based on the will of the people. A second objective is to explore the research, the reasoning, and the values of the Founders. The Federalist papers and other writings, their correspondence, and John Adams’ widely circulated and referenced handbook will be examined. It will also be important to reach back into the past and examine Aristotle’s profound work on constitutions in his Politics. Aristotle was beyond doubt the master of constitutional thinking in antiquity. A final objective is to justify revisions and updates in the new Constitution. This will involve both historical justifications residing in the thinking of the Founders, and the correct analysis of problems inherent in American society today, problems severe enough to warrant constitutional changes. In both tasks this work will be guided to an extent by the person many consider to be America’s national philosopher, John Dewey. Many people are aware of Dewey only through his work in education. But education was only a part (but a significant part) of Dewey’s fifty-year long analysis and refinement of American democracy. As a leading pragmatist, Dewey would rightly judge the new, revised Constitution by its fruits. Why is it necessary to construct a revised Constitution when various amendments could be added singly over time and not all at once? Why is it necessary when Congress, with the approval of the President, could enact laws to repair America’s problems, without ‘tampering’ with the Constitution? Multiple answers are forthcoming. First, Congress has, again and again, demonstrated its inability to reach agreement amongst its members on badly, even desperately needed legislation. Take the spectacle of Congress unable to fund the Federal government for one year. One month funding here, six weeks there---it has both the appearance and the

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reality of some unstable country. Or again, the United States is a country in which children can roam the streets with military grade weapons; a country with the highest murder rate among Western nations, a country in which angry men can form militias with the intent of harming the government or harming some hated racial or ethnic group. The United States is a country that fails to distinguish between freedom and licentiousness. It is a country in which many of our highest government officials wallow in ignorance of the catastrophic destruction of the biosphere; and many of these officials do not have the slightest inkling of what it really means to be poor. The United States is a country with a crude version of capitalism—you can sell just about anything and say just about anything about it; you can pay your workers unlivable salaries; you can pollute and rape the natural environment. It is a country in which medicines are, money-wise, out of reach of many people, a circumstance due to nothing but corporate greed on the part of pharmaceutical corporations. Sadly, this list could be expanded. Another type of failure is the impotence of both branches of the legislature to monitor the behavior of its own members: a failure to properly punish its members for unethical conduct. There have been oblique references by member of Congress to harming other members of Congress. There have been frequent ad hominem attacks on members of Congress; party censorship of members for their reasonable position on real problems; excessive commitments to party affiliations rather than what is good for the country; lack of willingness to cooperate and compromise; members arrogantly and dogmatically stating publicly that their goal for the next four years is destructive--to bring down the incoming administration. On the constructive side, revisions and updates of the original Constitution take important measures out of the hands of politicians and embed them as permanent features of American life. U. S. Codes are laws passed by Congress, but can be removed by Congress, unlike Articles of the Constitution. The new Constitution set forth here advocates constitutional change based on the will of the people via a national referendum, not the will of State legislators or mysterious “conventions.” The new revised Constitution set out in this work will incorporate much of the original Constitution. Loyalty to the original Constitution should remain intact in its revised version. One can imagine a series of amendments over time (and in the past that has in fact occurred) that

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would retain the original Constitution as an object of loyalty. This work simply eliminates the succession over time. This is as it should be. The Founders set a high bar for amending the Constitution—too high a bar. This is especially true given the polarization that exists today. It is likely that no amendments to the Constitution will be forthcoming. To make matters worse, if one political party in Congress succeeds in passing a law or statute, the other political party, when it is in power, can revoke this and change the law. Republicans would have revoked the Affordable Care Act. The same is true of Presidential edicts. Trump revoked an array of edicts from the Obama administration, many of which were reinstated by President Biden. Politicians are playing ping-pong with the most important matters, both domestic and foreign. The truth of the matter is that the Constitution is a rather skimpy document, primarily owing to the problem of getting the States to ratify, but also owing to their wisely embraced confidence in the journey of reason that will take place in the future. Martha Nussbaum is certainly correct in stating that the Founders clearly understood that future amendments would be forthcoming. She states, “As I have repeatedly said, the text has an abstractness that seems to invite interpretation in the light of new learning.”1 She points out that “the framers knew in a general way what they were after, but (hardly surprisingly) had not thought out its implications in all particulars … the choice of highly general language is a way of giving experience and history time to unfold.”2 Are there criteria that must be met for something to be enshrined in a constitution? Indeed, there are several sine qua non requirements. First, it must be something, the addition of which, would make the United States a better (safer, healthier, more productive, happier) place for all citizens to live and to enjoy true freedom. And it must meet this requirement with a sound forecast of its benefits indefinitely into the future.3 It cannot be something which is discernable as short-lived and to be displaced by oncoming social changes. Second, it must be something so fundamental that it provides a framework for specific positive laws that can be enacted by Congress. Third, it must provide a framework for courts to rule on specific cases. Fourth, it is something which would be approved by a substantial 1  Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), 126, 2  Ibid., 111. 3  Federalist No. 34, 139. Hamilton, the Constitution must “calculate future exigencies.”

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majority of Americans without harming the lives and liberties of minorities. Fifth, whatever is inscribed into the new Constitution must be understandable by citizens of this country—no esoteric material. Sixth, what is inscribed in the updated Constitution must be something national in scope, affecting all citizens, as opposed to what is most suitable for local concerns in the States. Finally, in case of a conflict between the new revisions and the original text, efforts must be made to accommodate as much as possible the original text, qualified by the awareness that in many, many cases we live in a different world than the Founding Fathers. However, if this is not possible, the revision takes precedence, most noticeably in cases where the Founders were unable to peer into the future. Did the Framers, peering into the future as best they could, envision substantial revisions and updates to the Constitution? James Madison had proposed a preface to the Preamble to the Constitution which affirmed the right of the people to change their government: That government is instituted and ought to be exercised for the benefit of the people, which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.4

Madison again in his contributions to the Federalist papers states in Federalist No. 43 that “The express authority of the people alone could give due validity to the Constitution.”5 In Federalist No. 78 he affirms that it is a “fundamental principle of republican government, which admits the right of the people to alter, or abolish the established Constitution, 4  The Republic of Letters. The Correspondence between Thomas Jefferson and James Madison 1776–1826. Volume one. James Morton Smith editor. (New York and London: W. W. Norton and Company, 1995), 597. Hereafter this volume will be abbreviated “RL.” 5  In all references to the Constitution, the Bill of Rights, the Federalist and Anti-Federalist papers, for convenience’s sake I have utilized the one volume edition containing these documents: Documents of Revolution: Common Sense, The Complete Federalist and Anti-Federalist Papers, The Articles of Confederation, the U. S. Constitution, The Bill of Rights. Independently published, printed in Monee, Illinois, 2020. ISBN-13 :  979-8647043054 There are some errors in printing but nothing that alters the original texts. There are at least six versions of this text with some variation in page numbering.

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whenever they find it inconsistent with their happiness.”6 Writing from Paris on September 6, 1789, Thomas Jefferson was clearly in favor of constitutional revision when necessary: it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation …The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being … Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.7

In Federalist No. 40, Madison discusses the Articles of Confederation and in the course of doing so distinguishes between “alterations and further revisions” on the one hand, and “transmutations” on the other. Madison seems to be saying that the proposed Constitution goes beyond alterations and new provisions (of the Articles of Confederation). It alters the substance of the Articles of Confederation, whose principles “are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.”8 He seems to be saying that if part of the old Articles are retained, no infringement of power or authority has taken place. If one extrapolates from this, the new, revised Constitution is, ceteris paribus, a justifiable transformation of the old, retaining a large portion of the original Constitution. Madison sets out some qualifications on Constitutional reform. Once again affirming the ultimate source of democratic government to be the people, he states: As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems, strictly consonant to the republican theory, to recur to the same original authority … whenever it may be necessary to enlarge, diminish or new-model the powers of the government … a constitutional road to the decision of the people ought to be marked out and kept open, for certain great and extraordinary occasions.9  Federalist Nos. 78, 292.  RL, 34. 8  Federalist No. 40, 164. 9  Federalist No. 49, 200–201. 6 7

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Today, with skepticism about the longevity of democracy, it is certainly a “great and extraordinary occasion” to revisit and update, after 236 years, our beloved Constitution and to revitalize it, give it a rebirth consonant with the well-being, liberties, and happiness of the American people. Madison manifests some degree of caution, however. Too frequent appeals for change would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and fittest governments would not possess the requisite stability … In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason.10

Just as the newness and novelty of the proposed Constitution was itself no reason to reject it, Madison says, it may likewise be said that this revised and updated Constitution should not be rejected just on account of its newness.11 Revisions and Changes embedded in the revised and updated Constitution  This revised Constitution is the product of conversations with people of all walks of life, all races, ethnic groups, religions, and political affiliations. Young citizens, especially students, were a main source, for the future belongs to them and their children. Included in this book are appropriations of wisdom from thinkers ranging from Plato and Aristotle to Locke and Montesquieu to John Dewey and Richard Posner. A different source, already mentioned, has been the failures of various government leaders of both parties. A striking case in point is how former President Trump through his actions made it clear that the Constitution and positive law failed to contain regulations and parameters on many important matters. These important matters were founded only on tradition, which Mr. Trump broke with relish. Some elements of the Constitution and positive law did indeed block Mr. Trump’s multiple efforts to overturn the election, but even here, laws were weak in respect to punitive actions. It came as no surprise to many people that Mr. Trump  Ibid., 201.  Federalist No. 14, 78.

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participated in the insurrection but then would back away from his own, most aggressive supporters, by being silent during the insurrection. This document stands Mr. Trump on his head. It appropriates his unethical and often illegal actions, using them for positive good--using them as beacons illuminating the weaknesses of our democracy. This new and revised Constitution repairs many, perhaps most, of these weaknesses. Citizens on the right and the left in political spectrum will find many Articles which are worthy of being permanent features of our democracy. Why have permanently beneficial elements among the “blessings of liberty” been put in the shifting and sometimes shifty hands of professional politicians? Why allow party politics to play ping-pong with what is important in people’s lives? Pragmatism and Faulted Theories of Constitutional Interpretation This work embraces a form of constitutional interpretation derived from deeply embedded movements in the intellectual life of the United States. Pragmatism has been rightly described as the only systematic philosophy indigenous to our country. Pragmatism has several component parts, the chief of which is the claim that beliefs, theories, ideas, including laws and statutes, are to be judged by their practical, experiential consequences. By their fruits, you shall know them. Examining the origin of pragmatism is helpful in understanding what this epistemological theory is. Sometime in 1870 three philosophers and three attorneys met and formed a little club, the Metaphysical Club, whose aim was to discuss fundamental concepts and theories.12 The philosophers were Charles Sanders Peirce and William James, both of whom grew up in Cambridge, and Chauncy Wright, a “tough minded philosopher,” scientist, and friend of Charles Darwin. The attorneys were Nicolas St. John Green, Dudley Warner, and Oliver Wendell Holmes, Jr. At the club’s first meeting questions about belief came up. What is a belief? Green suggested that believing something relates to action, doing, and practice. Peirce, later acknowledged as the founder of pragmatism, held

 No notes from club meetings exist.

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that acting on a belief or theory clarifies what that belief involves.13 At this time Darwin’s theory of evolution was being hotly discussed, and club members recognized that If beliefs involve action, practice, then beliefs can be judged as adaptations to the social and natural environment. Beliefs are ways of coping with the world. Some beliefs are better adapted than others. Some beliefs go extinct. So, for any belief the pragmatic analysis will focus on the practical, experiential consequences of that belief. This takes belief away from it being merely an idea in the mind to something scientifically discernible.14 Now, substitute law or statute for belief. Laws are to be judged in terms of what their consequences are for that society. Judges must ask, “Will our ruling in this matter be adapted to today’s social conditions?” In the case of stare decisis, judges must ask, “Is this precedent still adapted to today’s social conditions, or is it necessary to extract viable components from it and bring it up to date, or abandon it altogether?” Richard Posner’s Pragmatic Interpretation of Law and the Constitution  Richard A. Posner was a noted philosopher of jurisprudence and a Federal judge for the Seventh Circuit United States Court of Appeals. He was also an economist who is hailed one of the most outstanding scholars of the twentieth century. Posner offers a carefully considered appropriation of pragmatism for judges and lawyers, set out in several books, two of which are The Problems of Jurisprudence and Law,

13  William James credits Peirce with being the founder of pragmatism. Peirce published two articles delineating what pragmatism means: “The Fixation of Belief” and “How to Make Our Ideas Clear.” In the “Fixation” essay, Peirce describes belief as a springboard to action, a restful state of mind, and satisfying. The opposite of belief is doubt—irritating, restless, and impeding action. If, for example, I believe my car is in the parking lot outside my building, then that is the way I’ll walk when I am finished for the day. In the “Ideas Clear” essay Peirce explains that what clarifies ‘hardness’ of mineral substances is scratching (Mohs Scale of Hardness). William James praised the fact that practice implicates the body’s role in doing. Later another pragmatist, John Dewey, will emphasize that an end or goal is vague until the means are specified. 14  Peirce describes pragmatism as the correct epistemology for incorporating science. Scientists test hypotheses in terms of their consequences, and these results are reviewed by a community of similarly focused inquirers. This is why scientific method is praised—it is self-­ corrective and yields countless benefits to societies.

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Pragmatism and Democracy. These are especially helpful in ferreting out the components of pragmatic jurisprudence.15 First, for Posner and the pragmatists there is no metaphysical foundation to law that can be helpful in understanding law. Typical to pragmatism, his view is non-foundational. The base concept for all of law he says, is “activity” or what other pragmatists refer to as practice, action, deed, etc. Second, looking for the applicable precedent, and then following precedent, is by itself the wrong way to go about reaching judicial decisions. Posner thinks this procedure is akin to fetishism and ancestor worship. Pragmatists look to the future and are not stuck in the quagmire of past rulings. Rather—and this is the third point—interpretation by the Court should involve questions about the practical consequences of alternative rulings. His simple but fine example is the “Walk” and “Wait” signals for pedestrians on street corners: I come to a street crossing and the traffic light says “Walk.” What does this mean? It certainly is not a command. It is not permission either, for that would imply that “Wait” is a prohibition, which it is not in a realistic sense …. “Wait” is a warning against the danger of crossing when vehicles have the right of way. What “Walk” means, as a practical matter, is that vehicles are unlikely to enter the crossing (other than turning into it), because if they do they will be running a red light, a type of conduct that, unlike jaywalking, is punished.16

This example also points to a fourth component—purposiveness. One must ascertain what the purpose of a considered precedent was, and what the purpose of a proposed new law or statute would be. In the pedestrian signal example, the purpose of having these laws is the safety of walking pedestrians. Other examples come to mind. The purpose of segregation laws in the 1950s was to keep inferior blacks away from whites. Another example was the National Prohibition Act (“Volstead Act”) of 1919, which became the Eighteenth Amendment to the Constitution. Its purpose was to bring to an end the harm done to families by alcohol as well as on-the-job accidents. However, the consequences of this law were much 15  Ricard A. Posner, The Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990). Also, Law, Pragmatism, and Democracy (Cambridge, MA and London, England: Harvard University Press, 2003). 16  Ibid., 299.

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more socially destructive than beneficial, creating illegal speakeasies, gangsters such as Al Capone, blindness and other illnesses from moonshine, unaffordability of beer and spirits by the poor, loss of tax revenue for States, and the closing of many restaurants that could not survive without income from alcoholic beverages. Repeal of this Act in the Twenty-first Amendment to the Constitution in 1933 led to the decline of these evils and increased tax revenues, new jobs, and more freedom. Recently some States have made the sale of marijuana legal. The most apparent social benefit of this is that it drastically reduces violent crime associated with illegal, underground sales. Fifth, Posner’s contends that no one theory or judicial practice can be effective for the entirety of law. Pragmatism is open-ended, ready to explore an array of strategies for reaching the best ruling. According to pragmatic, methodological pluralism, judges should use whatever works in reaching the best judicial decision for the case at hand. Judges should be restrained by precedents but not If those precedents no longer serve in today’s society the overarching and transcendent values of equality, justice, happiness and freedom. A final component in pragmatic jurisprudence is the requirement that judges keep abreast of the history of the topic that comes before the court, and that they utilize, as John Dewey insisted upon again and again, the light shed on human conduct by the social sciences. An even more detailed list of features of pragmatic adjudication, beyond the five cited, is provided in Posner’s Law, Pragmatism, and Democracy17 Added to the previous list are these features of pragmatic adjudication: Sixth, legal pragmatism examines and occasionally gives weight to “systemic” consequences and “not just case-specific consequences;”18 Seventh, the ultimate criterion for pragmatic law is reasonableness; Eighth, in some cases the pragmatic judge will follow rules, hence there are “pockets” of formalism in his or her rulings. Ninth, legal reasoning is essentially practical reasoning; Tenth, legal pragmatism is empiricist, not formalist, and as a method is apolitical. It is therefore open to experience of all kinds. Faulted Theories of Constitutional Interpretation  These are the methods of Constitutional interpretation that are misguided. Proponents who use these have failed to respond to recurrent criticisms. Perhaps some judges 17  Richard A. Posner, Law, Pragmatism, and Democracy (Cambridge, Massachusetts and London: Harvard University Press, 2003. 18  Ibid., 59.

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have had a political agenda that means more to them than a few criticisms. Or perhaps they are ignorant of these criticisms. Either way these theories are faulted and are to be set aside. Word Originalism is one such theory. According to it, justices must follow the meaning of the words used in the Constitution and discussions in the preceding Constitutional Convention. The critic will ask, “Whose meaning?”—the meaning of words for the Framers? The meaning of words in the legal jargon of the day? The meaning of the Framers’ words according to what those words mean today? If strictly followed, some of the Articles in the original Constitution make no sense. For example, the Eighth Amendment bans cruel and unusual punishment. That would allow cruel punishment that was common at that time and not “unusual.” The second half of the First Amendment states that Congress cannot abridge freedom of speech. So, slander, perjury, and false advertising, as well as dissemination of hate are legal. Justice Hugo L. Black wrote, “I prefer to put my faith in the words of the written Constitution itself rather than to rely on the shifting, day-­to-­day standards of fairness of individual judges.”19 Robert H. Bork argued that “lawyers and judges should seek in the Constitution what they seek in other legal texts: the original meaning of the words.”20 Both comments exhibit no small degree of naiveté. Original Intentions  This version of originalism focuses on the intentions of the Framers of the Constitution. According to Justice Rehnquist, “As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of the Charter.”21 One may ask, “Whose intentions? Those of the Framers or those of the Ratifiers? Since intentions are mental states and are complicated (distal intentions, proximate intentions, motives, problems of self-deception, etc.); no one can exactly enter the mind of either Framers or Ratifiers. Martha Nussbaum tracked the variations over time in what eventually became the First Amendment. The final product was the work

 In re Winship, 397 U. S. 358 at 378 (1970).  Robert H.  Bork, “The Original Understanding,” in Contemporary Perspectives on Constitutional Interpretation. Susan J.  Brison and Walter Sinnott-Armstrong editors (Boulder, San Francisco, Oxford: Westview Press, 1993), 52. 21  Wallace v. Jaffree, 478 U. S.38 at 113 (1985). 19 20

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of House and Senate committees and involved compromise.22 A committee per se cannot have “intentions.” Whenever a majority opinion, or minority opinion, comes from a Supreme Court ruling, and begins with the words “There is no right to X in the Constitution” (where “X” is, say, the right for a woman to have an abortion, or the right to privacy), you can count on political conservatism having overtaken and squashed justice. There is no right to eat chocolate either, or a thousand other things, unless they are put under the canopy of things that make for the blessings of liberty and happiness, following the Preamble to the Constitution. But if a thousand things are rights because they are part of the blessings of liberty and happiness, then privacy, abortion, education, fairness in the criminal justice system, and so on are happiness-induced rights. In short, originalism is political conservatism reigning over Americans, trumping justice, depriving everyone of Constitutional guarantees of a decent and good life. Stagnation is essential to conservative politics.23 Moreover, as Dewey noted, conservatives typically cannot take an argument or line of reasoning to its logical conclusion. They stop short on religious grounds, on the grounds of some favored tradition, on grounds that appeal to emotions, etc. Precedents Theory  Generally, precedents are important. They stabilize the law; they ground people’s expectations; they create a starting point for lawyers to begin legal research; they enable judges to escape the impossible burden of taking up every case de nihilo that is presented to the Court. Cases that do come before the Court are judged as having a greater or lesser degree of similarity to kindred precedents (analogical reasoning). The negative side of following precedents is that the precedent was decided under different social conditions than today, and therefore may be out of touch with society and the needs of the people. Moreover, precedents which are mistaken may be perpetuated indefinitely over time. In Janus v. the American Federation of State, County, and Municipal Employees the majority opinion in overturning Abood set out five criteria for evaluating precedents. These are: 22  Martha C.  Nussbaum, Liberty of Conscience. In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008), 109–110. 23  See Ted Honderich’s array of criticisms of political conservatism in his Conservatism: Burke, Nozick, Bush, Blair (London and Ann Arbor, Pluto Press, 2005).

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Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.24

The pragmatic method of judicial interpretation asks what social conditions were present when a ruling established a precedent? Are those conditions present today, or superseded by a new set of social conditions? Are the new conditions a warrant for improving upon a precedent, abandoning a precedent? Most importantly, judges must turn to history and the social sciences to evaluate the need for a new ruling.25 Constitutional Absolutism  This is the theory that the Constitution of the United States is a near magical or sacred document, timelessly sufficient for our country and its citizens, it is what Thomas Jefferson called the “sanctimonious reverence” for the Constitution, the view that the “ark of

24  “Janus v. American Federation of State, County, and Municipal Employees, Council 31.” Oyez, www.oyez.org/cases/2017/16-1466. Accessed 3 Sep. 2022. Where is Justice or fairness in the majority’s list? For the Abood precedent to Janus, see Chap. 11. 25  A clear example of changing social conditions is the status of many women prior to the 1960s. Prior to that time monogamous, heterosexual marriages typically involved the bread-­ winning husband and the stay-at-home wife. Birth control pills did not exist. So, if a woman became pregnant, she was expected to give birth. Single pregnant women were guilty of irresponsible behavior. Laws prevented abortions. Coat hangers and arsenic ruled the day, along with meetings at sleazy motels with strangers who may or may not have the required medical knowledge to properly perform an abortion. Then, beginning in the 1960s, economic conditions began to change. The American dream now began to require both husband and wife to earn income. Feminists voiced the need for freedom from oppression and exploitation. Women began to think about what careers they wanted to achieve for themselves. A sexual revolution was underway with the introduction of birth control pills and intra-uterine devices. For many single women having an unplanned baby was a detriment, even a disaster, to their plans and dreams. Women pleaded their case that what they do with their own bodies is their private concern. The Neurosciences made available results of research into the nature of fetuses at various stages of development. Now, Roe v. Wade became the correct ruling given the social conditions just described.

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the covenant is too sacred to be touched.”26 It should be altered by amendments only when necessary. Government officials and military personnel swear allegiance to the Constitution. This is well and good to the extent that this loyalty represents the important dictum going back to Aristotle that government should be a government of laws not of men. But it should always be kept in mind that those wonderful and enlightened souls lived in a world much different from ours today. Posner puts this nicely: The modern judge has little in common with the draftsmen of the Constitution. It is futile for him to try to put himself in their place in order to figure out whether they would have wanted to strike down laws forbidding abortions, sodomy, antitakeover statutes, affirmative action, the special-prosecutor law, or laws authorizing the censorship of student newspapers, or pornographic video cassettes. The relevant practices are not ones we share with the framers. They did not have the experiences we have, they did not know what we know.27

Neotraditionalism  Richard Posner has described a theory of law in which law is regarded as an autonomous discipline. Law, on this view, cannot be reduced to something else—be it philosophy, economics, or politics. Neotraditionalists avoid what they consider extremes, such as critical legal theory or economic legalism. The practice of law is an art which can only be carried out by those trained in law. It is the community of lawyers who are qualified to interpret the law. Posner sums up six characteristics of neotraditionalism that further define this movement. First, the nostalgia felt by attorneys and judges for a time “when law was law, and was not infected by newfangled ideas.”28 Second, the desire to free law from other disciplines. Third, neotraditionalists dislike abstractions and extol the practical. Fourth, they are hostile to science and systematic thinking. Fifth, they desire to keep law stable by keeping law free from entanglements from other disciplines. Sixth, they desire to monopolize law. Against these claims and motivations, Posner thinks that lawyers should have theories and ideas, and techniques of argument in their 26  Founders Archives, Thomas Jefferson to “Henry Tompkinson” (Samuel Kercheval)), July 12, 1816. Access at: https://founders.archives.gov/documents/Jefferson/ 03-10-02-0128-0002 27  Posner, The Problems…104. 28  Ibid.,437.

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toolbox—techniques which are derived from other disciplines, especially economics and philosophy. In regard to philosophy, he states that if philosophers mount cogent attacks on simple-minded ideas of textual determinacy—ideas that as it happens are the unexamined assumptions of many lawyers and judges engaged in interpreting statutory and constitutional texts—can the legal profession brush aside the attacks with the assertion that what lawyer and judges do when they interpret legal texts is its own sort of thing?29

The answer is that hiding your head under the sand is unacceptable for rational persons. Moreover, originalists and neotraditionalists alike must acknowledge what Justice Holmes and philosopher Morris R. Cohen both emphasize, that “Judges make rather than find law, and they use as inputs both the rules laid down by legislatures and previous courts (“positive law”) and their own ethical and policy preferences.”30 Both originalists and neotraditionalists suffer from lack of imagination, are trapped in the superficial reasonings of precedents, and fail to adequately engage in experimentalism by examining the concrete consequences stemming from alternative rulings. Law today would benefit greatly by looking to the future rather than the past, to engage in “more of the scientific spirit than it has—the spirit of inquiry, challenge, fallibilism, open-mindedness, respect for fact, and acceptance of change.”31

How to Read the New Updated Constitution All additions and revisions are in bold face type. . Original Constitution: Sentences, words are not in bold face type. 1 2. Original Constitution: Article and section numbering are not in bold face type. For the most part, it was not possible to retain the same numbering as in the original Constitution. 3. New Updated Constitution: Additions, and revisions are in bold type.  Ibid., 440.  Ibid., 457. 31  Ibid., 465 and 467. 29 30

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4. The New, Updated Constitution: Article and section numbering are in bold face type. 5. The new Constitution is a normative revision of the original Constitution. 6. All additions and revisions in the updated, normative Constitution are copyrighted by Michael H. DeArmey. All sixteen chapters authored by Michael H. DeArmey are copyrighted by Michael H. DeArmey. ©

CHAPTER 2

The Constitution of the United States Revised and Updated

We the people of the United States, in order to form a more perfect union, establish justice for all citizens and foreigners within our borders, insure domestic tranquility and freedom from terrorism and insurrection, provide for the common defense, promote the general welfare by establishing basic citizen rights, by assisting citizens in acquiring the basic goods necessary for a life of dignity, by encouraging basic moral duties and responsibilities which every citizen should strive to follow, and by securing the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Article I The House of Representatives Section 1 All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. Section 2.1 The House of Representatives shall be composed of members chosen every two years by the people of the several states. No member of the House of Representatives shall hold office for more than a total of 16  years unless an extension is granted by the House. An extension of 6 more years of eligibility for reelection may be offered © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_2

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if twelve members of each party certify the member deserving of merit. A second extension of 6 more years of eligibility for meritorious serve may be granted if twelve members of each party certify that the Representative is deserving of merit. Merit is meritorious service in which he or she is judged of good and amiable spirits, cooperates with opposition members, promotes compromise when needed, and is free of vitriolic behavior. A Representative seeking recognition of meritorious service in the House must announce his candidacy no earlier and no later than March 10 of his or her sixteenth year, or twenty-second year if an extension of eligibility was previously granted. A tally of supporting Representatives from each party must be made no later than March 15 of the sixteenth or twenty-second year. There can be only one such tally of support. A Representative ends his or her career in the House if he or she fails to achieve merit. Such a representative may seek any other position in the federal government. No member of the House of Representatives having achieved meritorious service twice, may serve for more than twenty-eight years. No member of Congress may serve more than thirty years for combined service in the House and Senate. A Representative who asserts independence of party affiliation is subject to the same term limits, extensions for merit, and maximum time in office. 2 No person shall be a member of the House Representatives who has not attained to the age of twenty-five years, and has been a citizen of his/ her respective state for seven years. 3 The number of representatives for each state shall be determined by the population of that state. The greater the population, the greater the number of representatives. The population of a state is determined by the most current federal census. 4 When vacancies happen in the representation from any State, the governor of that state shall appoint an interim representative until a new election cycle determines the next elected representative. 5 The House of Representatives shall choose their speaker and other officers, as well as the rules of its proceedings. 6 The House of Representatives has the sole power of impeachment by majority vote.

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Section 3.1 Any member of the House of Representatives who disrupts the discourse and operations of the House, or who uses profanity or personal attacks on other House members in a repetitive manner, or who repeatedly attempts to knowingly mislead the citizens of the United States, is subject to punitive measures, including censure, fines, removal from committee(s), or expulsion from the House of Representatives by a two-thirds vote. A representative proven to have engaged in sexual misconduct with a staff member is expected to resign from office. A House member found guilty of a felony is thereby expelled from the House. The Sergeant-at-Arms may fine and/or recommend for censure a House member for misconduct. The House member may appeal to the House Ethics Committee, and that Committee will grant or deny the appeal. The House Ethics committee is authorized to increase the punitive actions in some cases. 2 It is unlawful for members of the House or Senate to buy or sell stocks while in office, or to communicate insider information to anyone, including family members and friends. Stocks and other wealth parcels must be put into a diversified account, out of reach of the Congressman or Congresswoman until retirement from public office. 3 Illicit appropriation of campaign funds by any member of Congress will result in return of those funds to campaign accounts and a fine equivalent to the amount illicitly appropriated, along with criminal prosecution when warranted. 4 Any member of the House of Representatives or Senate, having taken an oath to the Constitution, shall be expelled from office, never to hold a federal office again, if the preponderance of evidence revealed in a Congressional investigation establishes that a member has engaged in insurrection or rebellion, or conspiracy to engage in insurrection, against the Constitution. 5 The House of Representatives alone is the authority that certifies and finalizes state-by-state federal elections were conducted fairly and properly. Only demonstrated massive fraud, or fraudulent handling of vote tallies by the Secretary of State or other certifying official, or demonstrated massive voting machine malfunction are warrants for the House to impugn a State’s certification. Individual state legislatures may choose the times, places, and manner of holding Senate and Representative elections, but these are subject to approval by the House of Representatives.

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6 Misreporting, altering or distorting voting results in a federal election by a Secretary of State or other State Certification Officer is a felony. 7 Redistricting by any State, or any other act which excludes any class of voters, is prohibited, and any such law is null and void. 8 The House of Representatives has the power to issue subpoenas to facilitate its investigative function. If the House votes to cite a person(s) for contempt, the contempt charge may be sent to the Attorney General who may present the findings to a grand jury. The House has the power to issue a civil lawsuit to enforce a subpoena. The House is authorized to enforce a subpoena by means of inherent contempt. The House may vote contempt on a person(s) and is authorized to have the person in contempt arrested by the House Sergeant-at-Arms and deputies, jailed and freed on bond until trial by jury, without going through the Attorney General’s office. Section 4.1 In order for a person to become a candidate for an election to the House of Representatives in his or her state, that person must have the required certificate that he or she has taken and passed the seven-day basic knowledge seminar. Basic knowledgev will include the nature of truth, what science is and how it works, justice, the nature and sources of poverty, environmental problems, and strategies for preserving and restoring the environment. The applicant will spend eight hours of one of the seven days with one or more poor families, observing their needs, their living conditions. The seminar will be administered at a participating university by university-­selected faculty. 2 When a person in any state becomes a candidate for the office of the House of Representatives or the Senate, he or she must release the record of his or her formal education, including areas of concentrated study, degrees earned, and where earned, and a statement of personal wealth and taxes paid for the previous five years. 3 Any candidate for Congress who significantly misrepresents his or her life and is therefore a phantom candidate who has duped voters, shall not be seated in either the House of Representatives or the Senate, and if seated, expelled. Section 5.1 The times, places, and manner of holding elections for senator and representatives, shall be prescribed in each State by the legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing senators.

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2 Each House may determine the rules of its proceedings, punish its member for disorderly behavior, and, with the concurrence of two-thirds, expel a member.

The Senate Section 6.1 The Senate of the United States shall be composed of two senators from each State, chosen by popular State elections. The election of senators shall take place every six years after each senator’s six- year term in office. No senator may serve as senator for more than a total of 18  years. An extension of 6 more years of eligibility for reelection may be granted if six Senators of each party certify the member deserving of merit. A second extension of eligibility for reelection will result if six Senators of each party certify the Senator deserving of merit. Merit is meritorious service in which he or she is judged of good and amiable spirits, cooperates with opposition leaders, promotes compromise when needed, and is free of vitriolic behavior. A Senator ends his or her career if he or she fails to achieve merit. Such a Senator may seek any other position in the federal government. No member of the Senate, having achieved meritorious service twice, may serve for more than thirty years. No member of Congress may serve more than thirty years for combined service in the House and Senate. A Senator who asserts independence of party affiliation is subject to the same term limits, extensions for merit, and maximum time in office as those with party affiliation. 2 If vacancies happen by resignation or otherwise, the governor of that state wherein the vacancy occurs, shall appoint a person as interim senator. Each senator shall have one vote. 3 No person shall be a senator who shall not have attained the age of thirty years and been nine years a citizen of the United States. At the time of the election the person seeking office must be a resident of the state from which he/she seeks office. 4 The Vice President of the United States shall be the President of the Senate, but shall have no vote, unless there is a tie vote by Senators, in which case the Vice President may vote and break the tie. 5 The Senate shall choose their other officers, and also a president pro tempore in the absence of the Vice President.

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6 The Senate shall have sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice of the Supreme Court shall preside; and no person shall be convicted without the concurrence of two thirds of the members present. 7 Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law. 8 The Senate has the power to issue subpoenas to facilitate its investigative function. If the Senate votes to cite a person(s) for contempt, the contempt charge may be sent to the Attorney General who may present the findings to a grand jury. The Senate also has the power of a civil lawsuit to enforce a subpoena. The Senate is authorized to enforce a subpoena by means of its inherent contempt power. The Senate may vote contempt on a person(s) and may have the person(s) in contempt arrested and jailed, freed on bond until a trial by jury takes place, without going through the Attorney General’s office. 9 In order for a person to become a candidate for an election to the Senate of the United States, that person must have the required certificate that he or she has taken and passed the seven-day basic knowledge seminar. Basic knowledge will include the nature of truth, what science is and how it works, justice, the nature and sources of poverty, environmental problems, and strategies for preserving and restoring the environment. One of the seven days the applicant will spend eight hours with one or more poor families, observing their needs, their living conditions. The seminar will be administered by a participating university with university-selected faculty. The certificate will be issued based upon successful completion of the seminar’s exam(s) by a presidential or vice-presidential candidate. 10 When a person in any state becomes a candidate for the office of Senator, he or she must release the report of his or her formal education, including areas of concentrated study, degrees earned, and where earned. The candidate must release a statement of his or her wealth, and the amount paid in federal taxes over a five-year period. Section 7.1 Voting results of the election of Senators requires final certification by the House of Representatives.

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2. House and Senate shall meet according to their respective calendar agendas. The Speaker of the House and the Senate Majority leader may at any recess call the House or Senate respectively back to work. Section 8.1 Each legislative body shall be the judge of the elections, returns and qualifications of its own members, and, by a favorable majority vote, swear the newly elected to uphold the Constitution and the rules of the House or Senate respectively. Section 9.1 The Senate Sergeant-at-Arms is authorized to fine any Senator who engages in misconduct. The Senator thus charged may appeal to the Senate Ethics Committee, which will rule on the merits of the appeal. Punitive measures are not limited to fines but may incur other punitive measures. Misconduct includes repetitive abuse and/or profanity on the Senate floor; knowingly misleading the American people in what is otherwise well-established. Punitive measures include fines, censure, removal from committees (as directed by the Senate Majority Leader). Expulsion of a member of the Senate requires a two-thirds vote by Senators. A senator found guilty of a felony by a jury in court proceedings is thereby expelled from the Senate and is never again eligible for federal offices of any kind. A Senator who used his or her office to receive sexual favors from a staff member is expected to resign from office. A person who fabricates his or her election credentials for a seat in Congress shall be denied membership in Congress, or expelled if he or she is initially sworn in. 2 Any member of the Senate, having taken an oath to the constitution, shall be expelled from office, never to hold a federal office again, if the preponderance of evidence revealed in a Congressional investigation establishes that a member has engaged in insurrection or rebellion against the Constitution, or conspiracy to engage in insurrection against the Constitution. 3 it is unlawful for a member of the House or Senate to buy or sell stocks while in office, or to communicate insider information to anyone, including family members and friends. Stocks and other wealth parcels must be put into a diversified account, out of reach of the Congress member until retirement from public office 4 Each House will keep a journal of its proceedings, with the votes of each member duly recorded. An exception is a proceeding which requires secrecy, most notably military matters.

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5 Sessions of both Houses shall be conducted in their assigned buildings respectively. 6 The members of each House shall receive a salary paid out by the United States Treasury, minus fines for disorderly conduct. Each Representative and each Senator shall pay for personal transportation, lodging and meals not involving established federal business. Costs of transportation, lodging, and meals for family members of a senator or representative who is on federal business must be reimbursed to the federal government. 7 No person holding a federal office may simultaneously hold civil offices, and no person holding federal office may use his/her office to acquire money or other emoluments.

The Budget Processes Section 10.1 The President of the United States initiates the yearly federal budget and it is then sent to both legislative houses, departments, subcommittees until 12 budgetary appropriations are sent to the President for approval. The fixed deadline for an agreed upon annual budget is October 1. If a budget agreement cannot be reached by October 1, then beginning on October 2 each member of the House of Representatives, each member of the Senate, and the President shall be fined $1500 per day or .5% per day of their yearly salary, whichever is greater. The United States Treasury is authorized, without interference from Congress or the President, to deduct these fines from the payroll checks of legislators and the President and these fines cannot be counted on tax returns as a deduction or deferred, but are subtracted from their gross income. No budget shall be proposed or enacted whose duration is less than a year. 2 All bills for raising revenue shall originate in the House of Representatives. The Senate may concur or propose amendments as on other bills. 3 Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if the President approves and signs it, it becomes law. If the President disapproves of the bill, it will be returned to that House from which it originated with the President’s objections to the bill. The House after due considerations of the objections may pass the bill over the

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President’s objections with a two-thirds or more vote. The bill is then sent to the other House, and if there is a two-thirds vote in favor of the bill, it shall become a law. The names and their votes yea and nay shall be recorded in the secretary’s journal. If the President after ten days fails to act on a bill presented to him/her, the bill becomes a law. 4 Every order, resolution or vote to which both Houses must concur must follow the rules of order governing that House’s proceedings. Section 11.1 The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States, but all duties, imposts and excises shall be uniform throughout the United States; 2 To borrow money on the credit of the United States; 3 To regulate commerce with foreign nations, and among the several States, and with the Native American tribes.

Immigraton, Citizenship 4 To establish a uniform rule of naturalization: Applications for citizenship must be uniform for all applicants. Procedures and pathways for citizenship must be the same for all applicants and written in the applicant’s native language. Denial of citizenship may result in temporary work or student status or may result in deportation if warranted by evidence. In court cases involving denial or pleas for non-refoulement, the plaintiff must be provided with an attorney who speaks the plaintiff’s language, or a translator who provides the plaintiff with a translation of the court proceedings. The plaintiff will be allowed to speak on his or her behalf before the judge. In the vetting process those who are seeking asylum must be able to describe the suffering or grave danger which led them to escape and come to the United States. 5 The migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by the Congress. Each State must prepare for immigrants a list of job opportunities and required skills for each job opening.

Other Federal Powers The United States will establish uniform laws on the subject of bankruptcies throughout the United States.

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6 To coin money, to regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; 7 To provide for the punishment of counterfeiting the securities and current coin of the United States; 8 To establish post offices and post roads. The cost of postage will be set by the Postmaster General, with the consent of Congress. Congress will insure that the Post Office is adequately funded. 9 To promote the progress of science and useful arts by securing for limited times to authors, artists and inventors the exclusive right to their respective writings and discoveries; 10 To establish federal courts inferior to the Supreme Court; 11 To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations.

The Military 12 To declare War, grant letters of marque and reprisal, and make rules concerning captures on land and water; Only by a joint resolution of both Houses of Congress can war be declared. The President may ask Congress for a Declaration of War. 13 In the event that there is an attack initiated by a foreign power upon the United States, upon its territories, upon the United States military, or upon installations of the United States, the President may order a military response to the attack without approval from Congress, but is required to explain to Congress and the American people the nature of the attack, the outstanding wrongness of the attack, the appropriateness of a military response instead of sanctions, the selection of a proportioned military response, the estimate of a possible escalation, the estimate of military and civilian casualties, the impact of the response upon ecosystems, artworks, and national monuments of the foreign aggressor. 14 The President is required to seek Congressional approval for any military action which extends beyond sixty days. 15 To raise and support the armed services; 16 To provide and maintain a navy; 17 To make the rules for the government and regulations of the land and naval forces. 18 To provide for calling forth the National Guard militia to execute the laws of the Union, suppress insurrections and repel invasions;

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19 To provide the organizing, arming, and disciplining of the Armed Service militia and the National Guard militia. The States reserve the right to appoint officers in their National Guard militia, and have the authority of training that militia according to the discipline established by Congress; 20 To make all laws which shall be necessary and proper for carrying out the execution of the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof. 21 The migration or importation of such persons as any of the States shall think proper to admit, shall not be prohibited by the Congress.

Restrictions on Federal Power Section 12.1 The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. Every citizen of the United States and every foreigner acting within the borders is entitled to a court proceeding in which the exact charges against him/her are detailed, and such defendant has the right to defend himself or herself and have legal counsel. 2 No bill of attainer or ex post facto law shall be passed. 3 No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration heretofore directed to be taken. Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportioning among the several States, and without regard to any census or enumeration. 4 No tax or duty shall be laid on articles exported from any State into another state. 5 No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another; nor shall vessels bound to, or from one State be obliged to enter, clear, or pay duties to another. 6 No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. 7 No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them, shall, without the

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consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any kind, prince, or foreign States. Section 13.1 No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal, coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder; ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. 2 No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject the revision and control of the Congress. 3 No State shall, without the consent of Congress, lay any duty of tonnage, deep troops, or ships of war in time of peach, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

The President Article II Section 1.1 The executive power shall be vested in a President of the United States of America. He or she shall hold his or her office during the term of four years, and together with the Vice President, chosen for the same term, be elected. No person may hold the office of President for more than eight years. 2 The appointment of State electors to register their vote for President is hereby expunged from the Constitution. The President shall be elected by national popular vote alone. In a presidential election the winning candidate must reach 45% of the total national vote. If 45% is not reached there shall be a run-off between the two candidates with the greater number of votes, and this shall take place no later than one month after the initial election. 3 Each state shall employ the most reliable and trustworthy equipment for the Presidential election. Monitors and a supervisor will be present at the voting places. A challenge to the election results in any state must be based on evidence presented to that state’s Secretary of

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State or Certifying Official. If the evidence indicates that a recount should take place, then the Secretary of State or Certifying Official will issue a statement calling for a recount. When the recount has taken place, the results will be examined by the State’s Secretary of State or Certifying Official, who will then determine if fraud or error has occurred that would alter election results. If no such significant fraud or error is found, then the Secretary of State or Certifying Official must certify that the results are valid and trustworthy, and the results will be sent to the United States House of Representatives, pending any court challenges that may take place. Fines and contempt of court charges may be incurred in the event that frivolous lawsuits are filed challenging election results. If there is a court challenge to the Secretary of State’s or Certifying Official’s certification, then the ruling by a federal judge is final. If the federal judge finds no significant fault in the certification, then the Secretary of State must submit the certified election result to the House of Representatives, otherwise the court sends the election results back to the Secretary of State or Certification Official to be re-examined. As stated previously, the House of Representatives has final authority concerning certification of the vote by each State as authorized by Article I, Section 3.5. 4 Only natural born citizens age thirty-five or older, and a resident for fourteen years or more, are eligible for the office of President. Those eligible must acquire a certificate before they become a candidate for the Presidency. The certificate will indicate that he/she has attended and passed a basic knowledge exam in a seven-day, eight-hour a day seminar given at a university. Basic knowledge will include the nature of truth, what science is and how it works, justice, the nature and sources of poverty, environmental problems, and strategies for preserving and restoring the environment. One of the six days the applicant will spend eight hours with one or more poor families, observing their needs, their living conditions. The certificate will be issued by a university-chosen faculty upon successful completion of the seminar’s exam(s) by a presidential or vice-presidential candidate. 5 In case of the removal of the President from office, or of his or her death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then

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act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. 6 The President shall, at stated times, receive for his/her services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he/she shall not receive within that period any other emolument from the United States, or any of the States or foreign powers. 7 Before he or she enters on the execution of his office, he shall take the following oath or affirmation—“I do solemnity swear or affirm that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Section 2.1 The President shall be commander in chief of the armed services, of the United States, and of the militia of the several States, when called into the actual service of the United States, he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. 2 The President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Presidential pardons are restricted to those persons found guilty of a federal crime and have petitioned for clemency. Having received an application for clemency, the United States Pardon Attorney shall investigate and send a recommendation of merit or a rejection to the President. In all instances of Presidential pardons, the President’s acceptance or rejection of the Pardon Attorney’s recommendation must first be sent in draft form to the Pardon Attorney and the Federal judge who ruled on the case, and each has 30 days to comment if they feel compelled to do so. Then, unfettered, the President may pardon or decline to pardon. His or her reasons for granting a pardon must be made in writing and made public. The President may not grant a pre-emptive pardon or grant a pardon that by passes the Pardon Attorney’s investigation and recommendation. The President may not grant a pardon on the basis of personal friendships, for political reasons, for quid pro quo, or personal feelings of sympathy. Pardons serve justice. Mercy pardons commuting a sentence may be granted only for persons dying or suffering from severe and permanent maladies. To rectify injustice or to accommodate changes in social values, mass pardons are acceptable.

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3 The President has the authority to order a nuclear retaliation only if there is a nuclear attack on the United States, its territories or vital interests. In the event that the President orders a nuclear strike that is not a response to a nuclear attack on the United States, its territories or vital interests, this order is illegal and must be immediately countermanded by the Joint Chiefs of Staff. 4 The President shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur; and he/she shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges recommended by majority parties in their turn to the Supreme Court, and all other offices of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. 5 The President of the United States may not at any time rescind the protections provided for endangered species, national parks, wilderness areas, public lands, monuments, oceans, waterways, rivers and other designated areas for public benefit and recreation. The President may create a protected area with the advice and consent of a simple majority vote from both Houses. Allocations for fair compensation to private individuals, groups or businesses must accompany the newly approved protected area. Section 3. The President shall from time to time give to the Congress information on the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in the case of disagreement between them with respect to the time adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. Section 4. The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors, including the following: sustained, repetitive and knowing deception of the public contrary to established facts; covert use of his/her office for private monetary gain; conspiracy to create an insurrection or

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rebellion against Congress; sustained abuse and illegal manipulation of political and other opponents; subversion of the laws of the United States.

Federal Court System Article III Section 1 The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme Court and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office. With continued good behavior a federal judge may hold office no longer than twenty years or until the day of his or her seventy-second birthday, whichever comes first. Retired Justices are eligible for any other federal office.

Section 2.1 The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treatises made, or which shall be made, under their authority; --to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more States;-between a State and citizens of another State;--between citizens of different States;--between citizens of the same State claiming lands under grants of different States, and between States, or the citizens thereof, and foreign States, citizens or subjects. 2 In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. 3 The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress by law have directed. Section 3.1 Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and

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comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2 The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted. 3 The number of Supreme Court judges shall be thirteen. The senior Justice will assume the role of Chief Justice of the Supreme Court. 4 The Senate and the President of the United States shall maintain a balance between political affiliations in the member composition of the Supreme Court. Majority parties in the Senate shall each among themselves choose a candidate to be a nominee for the Supreme Court. A majority party is one which obtains a thirty-percent or more vote in the Presidential election. Appointments to the Supreme Court will proceed until there is a balance of political affiliations in the Court. When a political party in the Senate chooses a person by vote among themselves, this nominee’s name and credentials shall be submitted to the President of the United States. The President may reject the nominee, in which case the Senate by a two-thirds vote of the entire Senate, may override the Presidential veto. In the event the two-thirds vote fails, those with that same political affiliation may vote on a new candidate and present that person’s name and credentials to the President, who may accept or reject it. 5 A political affiliation of a member of the Senate is based upon his/her political self-identity by which he or she was elected to the Senate. A person who was elected to the Senate as being independent of a political affiliation may participate in the party of his choice in selecting a nominee for the Supreme Court, but once declared may not vote in the other party’s nomination process for the Supreme Court. 6 Appointments to lower Federal courts are made by the President and require the approval of the Senate by a simple majority vote. The twenty-year term limit applies to lower Federal court justices. 7 The Chief Justice of the Supreme Court will be the senior Justice among the Justices. Should that person decline to be Chief Justice, the next senior Justice shall be the Chief Justice. 8 The United States Supreme Court shall establish an ethical Code of Conduct to govern itself. The Code will be developed by the Justices in conjunction with advice from the House and Senate ethics committees and shall be made public.

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9 Justices of the Supreme Court shall not engage in stock transactions, shall not speak at private gatherings, shall not attend dinners or entertainment venues at which there are lobbyists present who seek favored rulings, and shall not accept emoluments.

The States Article IV Section 1 Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. Section 2 The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. Section 3 A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another States, shall on demand of the executive authority of the State from which he/she fled, be delivered up to be removed to the State having jurisdiction of the crime. Section 3.1 New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress. 2 The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of an particular State. Article IV Section 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may be general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Section 2.1 The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

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2 A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall on demand of the executive authority of the State from which the person fled, be delivered up to be removed to the State having jurisdiction of the crime. 3 No person may be incarcerated for debts. Section 3.1 New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned as well as of the Congress. 2 The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of a particular State. Section 4. The United States shall guarantee to every State in this Union a republican form of government and shall protect each of them against invasion; and on application by the governor of a State shall protect that State from domestic violence. Section 5. No State Governor or Legislator who has engaged in insurrection or rebellion against the Constitution of the United States shall continue in office, and shall never hold government office again, if found to have so engaged by a Congressional investigative body and if on appeal reaffirmed by the United States Supreme Court.

Three Ways to Change the Constitution Article V Section 1 The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments. The amendments shall be valid and part of this Constitution if three-fourths of State legislatures ratify the amendment(s), or by three-fourths of the convention delegates. Or, the President may propose a national referendum to amend the Constitution. Approval by a simple majority vote by each House and the President of the United States is sufficient to establish a national referendum to modify the Constitution in the way described in the

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referendum. If 70% or more voters approve of the amendment(s) described in the referendum, the amendment(s) thereupon becomes part of the United States Constitution. 2 When a revised and updated Constitution is ratified, effective immediately all previous rulings based on stare decisis from the unrevised, original constitution must be, when necessary, reinterpreted by the courts in terms of this updated Constitution. Many Articles of the original Constitution are still the fundamental law of the land. In cases in which the new, revised, or added Articles clash with the original Articles, the new Articles override and displace the old.

Article VI Section 1.1 All debts contracted and engagements entered into, before the adoption of this Constitution, inclusive of amendments or modifications, shall be as valid against the United States under this Constitution. 2 This Constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound hereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Judges are bound by all ratified amendments and modifications of the Constitution. 3 The senators and representatives before mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States, and of the several States, shall be bound by oath or affirmation to support this Constitution, inclusive of any amendments or modifications; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Ratification Article VII The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. Done in Convention by the unanimous consent of the States present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United

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States of America the twelfth. In witness whereof we have hereunto subscribed our names. Go. Washington-Presidt. and Deputy from Virginia (Signed also by thirty-eight other delegates, from twelve states.) Modifications of the 1787 Constitution in this new, normative Constitution have been made for our time by many American citizens, who embrace these revisions as necessary and beneficial. They have been inscribed by Michael DeArmey. February 26, 2023.

Amendments XI to XXVII, 1795–1992 Amendment XI (1795). The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one or more of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. Amendment XII (1804). Superseded by the new and updated Constitution, Amendment XIII (1865). Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2 Congress shall have the power to enforce this article by appropriate legislation. Amendment XIV (1868). Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Section 2. The right to vote for President or members of Congress for citizens eighteen years of age or older shall not be abridged in any way, except for participation in rebellion, or other crime. Section 3. No person shall be a Senator or Representative in Congress or hold any office civil or military, under the United States, or under any

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State, who, having previously taken an oath, as a member of Congress, or as an office of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. The Department of Justice may enforce these provisions as well. Amendment XV (1869). Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, or color. Section 2. No federal or State law shall restrict voting opportunities of anyone, including handicapped persons, persons living in the countryside, city dwellers, the poor, or anyone on account of their ethnicity. Any such restrictive State law is hereby null and void. Section 3 The Federal government, through the Congress, shall have power to enforce this article by appropriate legislation. Amendment XVI (1913). The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration. Amendment XVII (1913). The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years, and each Senator shall have one vote. When vacancies happen in the representation of any State in the Senate, the executive authority of each such State shall issue writs of election to fill such vacancies: Provided, that the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election. Amendment XVIII (1919). Repealed by Amendment XXI.

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Amendment XIX (1926). The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Amendment XX (1933). Section 1. The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January. Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day. Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. Section 4. If both President-elect and Vice-President-elect have died or become incapacitated for conducting duties of their office, the Speaker of the House of Representatives shall become President. Amendment XXI (1933). Section 1. The eighteenth amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any State, Territory or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. State and Federal laws are applicable to manufacturing, distribution, or sales of mind-altering drugs that lack medicinal value. Amendment XXII (1954). No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. Amendment XXIII (1961). The District of Columbia shall have no Senators but may have one representative with full voting privilege and other privileges in which the other Representatives have. Amendment XXIV (1964). The right of citizens of the United States to vote in any primary or other election for President, for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax. Amendment XXV (1967). Section 1. In case of the removal of the President from office or of his or her death or resignation, the Vice President shall become President.

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2 Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. 3 Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. 4 Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President, otherwise, the President shall resume the powers and duties of his office. Amendment XXVI (1971). Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any state on account of age. Amendment XXVII (1992). No law, varying the compensation for the services of the Senators and Representative, shall take effect, until an election of representatives shall have intervened.

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Bill of Rights Article I  ight to Religious Freedom R Section 1.1 Congress shall make no law respecting an establishment of religion or preventing the free exercise thereof. 2 Neither Federal nor State governments may favor a particular religion, nor a group of religious sects, nor religion in general, nor non- or anti-religion. Federal and State governments shall maintain neutrality in regard to religion thereby maintaining the equality of citizens, equal justice for citizens, and equal freedom of each citizen consistent with the freedom of every citizen. Favoritism violates the Establishment Clause. 3 Free Exercise of religion must take place within the limits of what is fundamental to morality and common law. Unacceptable practices such as enslavement, cannibalism, forced adult participation, illegal drug use or any practice which harms citizens are forbidden. 4 Businesses in the public marketplace shall not discriminate on religious grounds. Section 2.1 Congress shall make no law establishing a religion. Establishing a religion occurs when a law(s) or Congressional action(s) favors a particular religion, a group of religions, or religion in general, thereby making its members privileged over non-members and creating hierarchical inequality among citizens. 2 States may establish vouchers for the education of children, allowing parent recipients to choose public, non-sectarian private, or sectarian schools. Firmly retaining the equality of citizens and ban on government favoritism cited in Section 2.1, the monetary amount will be the same for all parent recipients, multiplied by the number of children in the household. Federal entitlement vouchers for children with special needs are applicable to public, non-sectarian private, and sectarian schools.

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Article II  ight to Free Speech and Press R Section 1.1 Freedom of speech shall not be abridged except in these cases: Speech that consistently threatens to use violence endangering the lives of others; speech that promotes group conspiracy to overthrow Federal, State, or Municipal governments by violent means; hateful speech a group uses to encourage, foster harm to another group on the basis of race, religion, sexual orientation, or ethnic affiliation. These restrictions apply to written and digital material as well. The Federal government may fine or close down social media for allowing repeatedly harmful speech. 2 Freedom of the Press shall not be abridged, except in the following cases: television, digital or printed material which repeatedly and by design falsifies well-established public health considerations, thereby endangering the lives or ulterior interests of the public; repeated statements or imagery promoting racist doctrines, denigration of women; presentation of pornographic imagery unsuitable for news or for children. 3 This Constitution recognizes the right of citizens to be informed. The press and media are of fundamental importance, for they enable citizens to be informed about people and events, government decisions, policies and actions. Without fair and accurate news, citizens are blind. In light of this consideration, news media shall not be owned or controlled by foreign countries or foreign groups or individuals, or individuals not natural-born citizens. Foreigners may not sit on the governing boards of news media. Foreign news media outlets may present their news programs only with the formal and written consent of Federal Commerce Commission. 4 The Federal government, recognizing the necessity of a well-­ informed citizenry in a democracy, shall through the Internal Revenue Service of the Department of the Treasury, give newspapers a significant reduction in federal taxes.

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Article III  ight of Assembly and Right to Form Employee Unions R Section 1.1 Citizens of the United States are free to peacefully assemble and have a right to petition the government for a redress of grievances. 2 Employees of any occupation have the right to assemble together to form a Union of like employees, to elect by vote Union officials, and the right to fairly participate in negotiations with employers through their elected Union representatives for salary amounts and benefits for themselves. 3 The right of employees of any kind to form and participate in Unions shall not be abridged by State governments. Any such State law is null and void. 4 Employees in both the private and public/government sectors may decline to join an existing Union but must pay no more than 50% of current Union dues for benefits received, independent of the nonmember’s beliefs about Unions. 5 Unions, both private and public/government, shall neither be closed shop nor open shop, but shall be preferential shops, meaning that Unions shall determine a significant part of the pool of candidates from which management will hire. 6 All Union and non-Union members are entitled to express their views about Union or Management activity without fear of intimidation or loss of wages or status. 7 It is illegal for employers to utilize outside agencies to weaken employee confidence in Unions, either by deceit, innuendo, or other harm, or by forming employer-created anti-Union groups of employees. 8 Executive officers in both management and Union leadership are subject to income restrictions stated in Article XXI, section 4. Article IV  ight to Bear Arms and Restrictions R Section 1.1 Citizens have a right to own and/or possess pistols, non-­ military rifles, and shotguns. These must be registered with the proper authorities. Citizens may store these in their vehicles only if hidden from view.

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2 All firearms are to be registered. Unregistered firearms may result in a fine or in some cases firearms may be confiscated. 3 Private citizens may not own or possess military-grade weapons, such as hand grenades, artillery, flame throwers, or military-grade automatic and semi-automatic rifles. Military-grade rifles are defined as butt-held high-powered rifles that can spray an area or a mass of people and have no practical use outside a military or law enforcement context. Private citizens may not possess firearms with a bullet or shotgun shell capacity of more than 10 rounds, or firearms to which an excessive capacity is attached. 4 A well-regulated State militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. Citizens who are a part of the State militia (National Guard), the Armed Forces, law enforcement officers throughout the country, or licensed security guards may carry weapons on their person in public as long as they are authorized to do so by their commanding officers or licensing agency. Citizens have a right to safely lead their lives. Private citizens shall not bear arms on their person, concealed or unconcealed in public, inclusive of government buildings, businesses in the public marketplace, rallies, demonstrations, schools, colleges and universities, sporting events, voting places, or places of worship. 5 All State and Municipal police are required to have training on the proper use of deadly force, along with ethical considerations of the dignity of each and every human being. Periodic meetings for the purpose of dialogue shall take place between police assigned to neighborhoods and members of that neighborhood who volunteer for such meetings. 6 Persons under the age of 18 may have in their possession but not in public pistols, hunting rifles, and shotguns only if accompanied by an adult. Persons of any age with a history of mental health problems may not own or possess any of these firearms. 7 Organized groups for which there is sufficient evidence that they manifest hatred for some racial, ethnic, religious, or political group, in conjunction with planned violence towards the hated group, their members may not possess firearms of any type. Organized groups planning for violence against municipal, State or Federal government may not possess firearms of any type.

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8 Persons convicted of a felony while using or brandishing firearms have permanently lost the right to own or possess firearms of any type. 9 Persons with a history of mental health problems may not own or possess firearms. Article V  eproductive Rights and Non-Discrimination R Section 1.1 In a period of up to twenty weeks of pregnancy, each adult female citizen of the United States is free to make her own reproductive decisions without interference from State or Federal governments. 2 A physician’s approval is required for abortions performed at more than twenty weeks and approval is restricted to cases of endangerment to the woman’s physical or mental health or deleterious features in the fetus, such as spina bifida or anencephaly. 3 Doctor-prescribed pharmaceuticals which block sperm from attaching to an ovum are to be acquired at no cost by women who seek them. 4 A human embryo or a human fetus has rights contingent upon its being born. All considerations concerning the cognitive or pain-­ capabilities of a fetus are determined by scientific, neurophysiological conclusions. 5 Individual reproductive decisions, consultations with physicians or care providers, are strictly private unless the person consents otherwise. Under penalty of law no one may harass persons seeking reproductive health services. 6 No citizen of the United States is to be discriminated against because of sexual preferences, and no citizen may be denied legal marriage due to their self-ascribed gender identification.

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Rights Within the Criminal Justice System Article VI Section 1.1 No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner prescribed by law. 2 The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 3 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service time of war or public danger, nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. 4 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the alleged crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor, and to have the assistance of counsel for his defense. 5 In suits at common law, where the value in controversy reaches a certain amount set by that State wherein the alleged injury or damage takes place, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law, or in Louisiana under the Napoleonic Code. 6 Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. 7 Capital punishment is hereby abolished. State laws prescribing the death penalty for certain crimes are hereby null and void.

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The Right to Privacy Article VII American citizens enjoy the exercise of their autonomy, the ability each person has to design his or her own life, consistent with that exercise by other citizens. Each citizen has the right to be free from unwarranted publicity, the unwarranted exploitation of one’s personality, the unwarranted publication of a person’s private activities for which the public has no concern, and protection from intrusions which cause a person humiliation or shame. These are part and parcel of the “blessings of liberty” referred to in the Preamble of the original Constitution. Each person has the right to compel a business or corporation not to sell or transfer personal information other than his or her history of purchases. Health care data banks are open only to physicians and authorized nurses in the health care system.

Bill of Goods We the People of the United States affirm that there are goods which are necessary for a decent life, a life of dignity and worth. The following goods we hereby affirm and ordain as part of the legal framework of the revised Constitution of the United States.

Water Article I Section 1.1 Safe, pure drinking water is necessary for life. The Congress of the United States shall keep abreast of water supplies and has the power to compel States to address and remedy water shortages or contamination. 2 The States have the power to take punitive measures against manufacturers, businesses, groups, or individuals that pollute water tables, aquifers, and other drinking water sources. If any of the States fail to correct water supplies or water safety the Federal government make take steps to remedy problems therein. 3 Should there be times in which water supplies have been exhausted or nearly exhausted, States have the authority to create by law restrictions on water use.

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4 The Federal judiciary has the authority to adjudicate conflict between States over water access. 5 Corporations, manufacturers, energy companies, oil and gas companies and their equipment suppliers which handle toxic substances are required to be bonded and insured in order to pay for the cost of repairing any damage occurring by accident or by neglect to the environment. 6 Corporations, manufacturers, energy companies, oil and gas companies and their equipment suppliers are required by law to submit a report every two years to the appropriate State and Federal agencies accurately describing the age and condition of equipment that carries, stores, or utilizes toxic materials, including crude and refined oil, which could be a threat human lives, flora and fauna, ecosystems, oceans, rivers, lakes, water tables and aquifers.

Air Article II Section 1. Federal and State governments are required to monitor air quality in urban areas and to report to citizens the status of air quality. Air-polluting companies must install the necessary technology to clear emissions.

Food Article III Section 1.1 The United States of America is committed to eradicate hunger. The House of Representatives has the authority, with the approval by simple majority of the Senate, to allocate and arrange the distribution of funds directly to those persons and families in need of food. 2 The House of Representatives, with the approval of the Senate, may allocate and arrange distribution of funds where needed to support free school lunches.

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Education Article IV Section 1.1 A well-educated and productive public is necessary for the existence of a constitutional democracy. There shall be free public education for all persons in the United States and its territories. Free public education shall extend from pre-Kindergarten through hours earned or degree completed at a junior or community college. 2 A federal department of education shall require, for all school children, the following five courses of instruction: basic morality—compassion, fairness and good character; critical thinking; basic math and science; inclusive history of the United States; the nature of American government. 3 All heads of departments in the President’s cabinet are required to successfully complete the seminar in basic knowledge administered by a university and these officers are required by law to release to the public their wealth, taxes paid, and formal educational background.

Health Care Article V Section 1.1 All persons in the United States shall have affordable health care. 2 Federal and State governments may negotiate with pharmaceutical companies for the best prices for citizens, and foreign pharmaceutical companies with verified high standards of safety and quality control are part of the United States prescription marketplace. 3 To prevent deaths and suffering, to provide relief for hospitals and health care workers, public health mandates may be issued. In the event of a pandemic the President, with the advice of scientists and scientific institutions, may issue a mandate that businesses, sponsors of sporting events and other events drawing crowds require that attending persons wear a mask; the President may order such groups to require vaccination for employers or sponsors. In the event of a lethal pandemic, when the entire public is at great risk, the President

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may order vaccinations and proof of vaccinations for every citizen, as advised by scientists and scientific organizations. 4 All persons in the United States shall be able to choose their primary care physician and more specialist physicians upon referral by the primary care physician. 5 Mental health care is part of affordable health care. 6 The United States shall maintain the viability of the Social Security system which protects and enables senior citizens, and it shall match growth in the cost of living with increases in Social Security payments. The Social Security payments shall not be decreased and the fund shall not be borrowed upon.

Minimum Wage Article VI Section 1.1 It is necessary for a decent and fulfilling life that persons who work should by law have a minimum wage. The United States is committed to minimum wages for its citizens. Minimum wage is to be established by a concurring majority vote in each of both Houses. Federal workers may have a minimum wage established by the President. 2 Once a minimum wage is established, it cannot be reduced at any time. Each year the minimum wage shall be increased by the percentage increase in the official cost of living calculation, if there is such an increase. 3 Workers whose income is in part based on gratuities shall have a minimum per hour wage set by Congress. 4 Persons whose yearly personal income is less than fifty million dollars shall, like every taxpayer, be taxed at an incremental rate set by Congress and the Treasury. Each person whose per year gross income rises above fifty million dollars prior to transfer, deferment, investments or deductions, that person’s income above fifty million shall be taxed at 90%.

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A Healthy Environment Article VII State and Federal governments have the responsibility of preserving and restoring the natural environment within the borders of the United States and its territories. Threatened species are to be given by law special protections.

Bill of Citizen Duties and Responsibilities Article VIII Human beings everywhere have difficulty appreciating differences in other human beings--differences in preferences, beliefs, skin color, clothing, language, food and drink, social conduct, and political affiliations. Yet we are all biologically the same, and live together in one world, so the most fundamental of questions is, “What kind of world do you want to live in, for yourself, your family, for others, and for the natural environment?” 1 RESPECT. Human beings have a moral duty to respect others as beings of dignity and worth. People are engaged in designing a life for themselves and in doing so experience varying types of opportunities and hardships on the journey of life. Good citizens overcome a certain blindness in human beings, a blindness which neglects the trials and tribulations others have suffered. 2 FREEDOM.  The freedom of each person must be consistent with the freedom of everyone. So-called freedom used to harm basic rights or basic goods is not freedom but licentiousness, the counterfeit of freedom. 3 CARE.  Caring about others and caring for those in need is a mark of good character and must be instilled in children at an early age. The best society is one in which there is a moral fabric which ties people together. 4 RESPECT AND CARE FOR NATURE.  Human beings are members of a biotic community along with plants and animals of myriad kinds. Respect and care for living beings is a moral duty and involves preserving healthy ecosystems and restoring truncated ecosystems.

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5. ATTENTION TO THE NEWS. In a democracy it is important that citizens maintain awareness of the daily news. Good citizens will pay attention to local and national news and support those news outlets they consider trustworthy. 6 COOPERATION AND COSMOPOLITANISM.  The United States of America, with the support and encouragement of its citizens, will strive to reach cosmopolitan goals in its dealings with foreign powers, which is to say that it will strive to be a leader in creating cooperation between nations. Signed Michael H.  DeArmey, representing the many friends of American Democracy. October 23, 2023.

CHAPTER 3

Historical and Analytical Justifications for Revisions to the United States Constitution

This chapter examines the revisions and updates made in this new United States Constitution, while leaving much of the original Constitution intact. The revisions will, in some cases, be shown to have some historical justification based on the writings of the Founding Fathers. In other cases, the 236 years that have elapsed since the Founding has created entirely new and unforeseen situations. Beyond the discussions of the Founders, this book’s arguments and evidence will support the revisions and updates. Each revision will be shown to be necessary, national in scope, and long overdue. In all cases the lives, liberties, and joys of our citizens will be enhanced by these changes. Justifications of these revisions will be as they appear in sequence in the revised Constitution. The archaic use of masculine pronouns in the original is revised to use both masculine and feminine pronouns. The first discussion will be the question of term limits for members of Congress. Congressional Term Limits  The new Constitution, Article I, 2.1, and 6.1 incorporates the following revisions, term limits on members of the House of Representatives: Section 2.1 The House of Representatives shall be composed of members chosen every two years by the people of the several states. No member of the House of Representatives shall hold office for more than a

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total of 16  years unless an extension is granted by the House. An extension of 6 more years of eligibility for reelection may be offered if twelve members of each party certify the member deserving of merit. A second extension of 6 more years of eligibility for meritorious serve may be granted if twelve members of each party certify that the Representative is deserving of merit. Merit is meritorious service in which he or she is judged of good and amiable spirits, cooperates with opposition members, promotes compromise when needed, and is free of vitriolic behavior. There are term limits on members of the Senate as well: Section 6.1 The Senate of the United States shall be composed of two senators from each State, chosen by popular State elections. The election of senators shall take place every six years after each senator’s six- year term in office. No senator may serve as senator for more than a total of 18  years. An extension of 6 more years of eligibility for reelection may be granted if six Senators of each party certify the member deserving of merit. A second extension of eligibility for reelection will result if six Senators of each party certify the Senator deserving of merit. Merit is meritorious service in which he or she is judged of good and amiable spirits, cooperates with opposition leaders, promotes compromise when needed, and is free of vitriolic behavior. The original Constitution did not contain term limits, not even for the President. It wasn’t until the XXII Amendment was passed on March 21, 1947, that Presidential time in office was restricted to two elected terms. There was some discussion of “rotation” by the Founders, but that did not make it into the Constitution. Today there are often heated debates among members of Congress concerning term limits. Proponents of term limits applaud the increase of fresh faces and new ideas that term limits would bring about. It would prevent aging Congressional members from continuing in office because their faculties are in steady decline.1 A decrease of time in office would reduce the influence of lobbyists. It would make elections somewhat more just, given the fact that incumbents have the advantage again and again, owing to their privileges of free mailing, money from special interest groups, a free office staff, free air-flights to and from their home state, and superior health benefits. Moreover, their names are known to the public,  For example, Strom Thurmond was a Senator when 100  years old. Senator Robert Byrd was 92. 1

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and name recognition is something in their favor, even for members whose performances in office are mediocre. Since 1946 incumbent Senators have won re-election 75% of the time, House members 90% of the time. Proponents of term limits abhor the ‘culture of professionalism’ that accrues from lengthy time in office, and the behind-the-scenes camaraderie which belies the public appearance of caustic disagreement. Proponents of term limits note that in Gallup polls confidence in Congress has hit a record low of 12%. Even though some State legislatures have passed term limit laws for themselves, in 1995 the U. S. Supreme Court ruled 5–4 that federal term limits would require an amendment(s) to the Constitution, a high bar to jump over. Proponents of No Term Limits. One argument is meant to block term limits altogether. This is the argument that to restrict the re-election of members of Congress is to violate the rights of citizens to vote for candidates of their choice. Robert B. Livingston argued against ‘rotation’ at the Constitutional Convention: But to return—The people are the best judges who ought to represent them. To dictate and controul them; to tell them who they shall not elect, is to abridge their natural rights. This rotation is an absurd species of ostracism—a mode of proscribing eminent merit and banishing from stations of trust those who have filled them with the greatest faithfulness. Besides, it takes away the strongest stimulus to public virtue—the hope of honors and rewards. The acquisition of abilities is hardly worth the trouble, unless one is to enjoy the satisfaction of employing them for the good of one’s country. We all know that experience is indispensably necessary to good government. —Shall we then drive experience into obscurity? I repeat, that this is an absolute abridgement of the people’s rights.2

No-term-limit advocates argue that we need professional politicians. Society is now so complex and so specialized that the days of citizen legislators--amateurs—are over. As Livingston argued, experience is important. Term limits would not only destroy experience and expertise, but it would also partially obliterate institutional memory. Proponents 2  Robert R. Livingston Speech in the New  York Convention, 24 June 1788. The Documentary History of the Ratification of the Constitution Digital Edition, ed. John P.  Kaminski, Gaspare J.  Saladino, Richard Leffler, Charles H.  Schoenleber and Margaret A. Hogan. Charlottesville: University of Virginia Press, 2009. Original source: Ratification by the States, Volume XXII: New York, No. 4.

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argue that the present system already includes fresh faces, especially with the 2-year cycle for the House of Representatives and allows for accruing experience and wisdom in office. A New Solution to the Question of Congressional Term Limits  As the reader has seen, there are good arguments on both sides of the question. The solution is a compromise between the two positions, with the surprising addition embedded in the revised and updated Constitution (Article I, 2.1). First, however, there is an anti-term-limits argument that must be disposed of. This is the argument, just noted above, that term limits are unconstitutional in that they prevent citizens from voting on a person of their choice. Against this, this right to vote for your choice is not absolute. The Constitution disallows persons under a certain age to run for office. It prohibits persons not born in the United States for running for some offices. Freedom to choose is always the citizens’ freedom to choose from eligible candidates. The solution is one which lessens polarization and conflict between parties in both the House of Representatives and Senate. The solution which undergirds the changes on term limits in the revised Constitution posits a fixed time in office for both the House and Senate. House members may serve no more than sixteen years, Senators no more than eighteen years.3 However, there is what may well be a very beneficial addition to this termlimit revision. If a Representative or Senator has demonstrated a good spirit and energetic cooperation with members of his own and members of the opposition party (or parties) during his or her sixteen or eighteen years (Representatives and Senators respectively) in office, this person may seek an extension of eligibility for re-election of six years (twenty-two years total for Representatives, twenty-four years total for Senators) for recognition of meritorious service in their office. The granting of merit requires that twelve members of each party in the House of Representatives support awarding merit (twenty-four members in all). In the Senate six supporting members from each party are required (twelve total). The 3  With the extension for merit this solution offers a lengthier time in office. The GOP proposal in 1994 which posited eight two-year elected terms for House members and three 6-year terms for Senators—sixteen and eighteen years respectively. The GOP proposal was opposed by Democrats and was defeated short of the two-thirds required (227–204). Since this is an article in the new, revised Constitution, there is no Congressional vote to approve or reject

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candidate for merit in Congress may withdraw his name from consideration, may accept or decline this extension. The candidate seeking a merit extension of eligibility to run for re-election must announce his or her intentions on March 1 of the sixteenth year (for Representatives) or March 1 of the eighteenth year (for Senators). A tally must take place and must be announced no later than March 15 of that year. If the tally is sufficient to award merit, then the meritorious person will have a sufficient amount of time to run a campaign, little more than seven months, if he or she decides seek re-election. A second extension of eligibility for re-election will be granted if the same support from both parties is achieved. With a second support for merit, the maximum time in office for a Representative is twenty-eight years, for a Senator thirty years. The same deadlines in March are in effect. What are the qualities manifested over time for a congressman or congresswoman to achieve the Merit Award? The full list is: (1) First and foremost cooperation and good will towards members of the other party; (2) Willingness to compromise on legislation if it benefits the American people; (3) Loyalty to the Constitution; (4) High capacity to fulfill the duties of their office; (5) A character which manifests goodness and a sense of justice;. Absence of vitriolic behavior.4 What are the possible consequences of the extension-for-merit solution to term limits? One possibility is that Representatives and Senators who enjoy the benefits of holding office would extend their hands to opposition party members and undergo important changes in attitude about legislating for the common good. Cooperation, compromise when needed, and a good energetic spirit would result for many members of Congress. If one or a few members received the Merit Award, the implication would be that other members performed less ably than those of merit, and therefore they should work harder at cooperation and other meritorious behaviors. While in office Representative Smith or Senator Jones, looking forward to their future, and desiring to stay in office, will be motivated to work with members of the opposition party. This revision may well reduce polarization in Congress.

4  Aristotle, The Politics, 230: “Three qualifications are necessary in those who have to fill the sovereign office. The first is loyalty to the established constitution. The second is a high degree of capacity for duties of the office. The third is the quality of goodness and justice, in the particular form which suits the nature of each constitution.”

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Another possible consequence is that no one reaches the required votes, and the Merit Award becomes an idling wheel. In this case there are no extensions of time in office and Representatives will retire from Congress at sixteen years and Senators at eighteen years. Political polarization could make the extension impossible. The public would be aware that no one has done outstanding public service, everyone falls short of merit. Another possibility is that members arrange quid pro quo pledges to nominate and vote for each other as deserving of merit. It is likely that, although a few might do this, it is unlikely that the required number from each party could be reached. There is little doubt that when a Representative or Senator applies for merit, members of the opposition party will confer. They may say, “Well, Senator Jones was better than most, probably better than any newly elected person, so anyone who wishes to support him or her may do so.” In the past only a few persons would likely have been of a sufficiently high caliber of service to have achieved this award of merit. Democratic Senator Edward Kennedy, the “lion of the Senate” comes to mind, noted for his positive spirit and cooperation with Republicans. Is it not the case that this is sorely needed today? Isn’t it likely that this arrangement would be a step, even if a small step, toward better government? Would it not reduce misconduct by members of Congress? No leader of the House or Senate would likely say, “It is my goal to bring down the ____________________administration,” or “Our goal is to block the opposition’s proposals when they come up.” Such remarks reek of anti-­ cooperation, arrogance, and a bad governing spirit. Is it necessary that the Merit Award be an element in the United States Constitution? Term limits must be in the Constitution, therefore the possibility of a six-year extension of time-in-office based on merit must accompany this. Judiciary Term Limits  When the Founding Fathers decided that Federal Judges should have a lifetime appointment, they thought that this would relieve the Courts from political and other pressures which would occur if judges were elected or if they came up for periodic re-appointments. In those days, life expectancy was much shorter than today, which makes a lifetime appointment today excessive and unjustifiable. Some Supreme Court Justices have themselves suggested term limits. For example, Justice Stephen Breyer stated on: January 7, 2016, “I do think that if there were a long term—I don’t know, 18, 20 years, something like that, and it was

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fixed—I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth.”5 Justice John Roberts once offered this reasoned assessment of judicial term limits: The Framers adopted life tenure at a time when people simply did not live as long as they do now. A judge insulated from the normal currents of life for twenty-five or thirty years was a rarity then, but is becoming commonplace today. Setting a term of, say, fifteen years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence. It would also provide a more regular and greater degree of turnover among the judges. Both developments would, in my view, be healthy ones.6

Justice Elena Kagan in an Oct. 24, 2018 statement offers an additional reason for federal judicial limits, namely the colossal implications of lifetime appointments:: Could you do [tenure] with sufficiently long terms—18 years seems to be the going proposal—maybe. I’m not saying that there’s nothing to proposals like that. I think that what those proposals are trying to do is to take some of the high stakes out of the confirmation process, and certainly to the extent that that worked, and that people could feel as though no single confirmation was going to be a life or death issue, that that would be a good thing. So I think it’s a balance among good goals7

The Fix the Court site refers to a poll they took in which “The vast majority of the country (78% according to our Oct. 2018 poll) now agrees that life tenure is problematic.” There are additional reasons for term limits for the justices. There is always the Sisyphus effect—burnout in considering the minutiae of endless cases, both review and origination. When someone enters their middle 5  Center for American Progress. Maggie Jo Buchanan. “The Need for Supreme Court Term Limits.” August 3, 2020. Access at: https://www.americanprogress.org/article/ need-supreme-court-term-limits/ 6  October 3, 1983. Gwynn Guiford, “117 years of data show why today’s Supreme Court nominees have more influence than ever,” Quartz, July 10, 2018, available at https://qz. com/1324841/brett-kavanaughs-age-at-53-means-that-he-may-wield-influence-onthe-supreme-court-for-a-­very-long-time 7  Fix the Court. “Term Limits: What Have The Justices Said?” July 7, 2019. https://fixthecourt.com/2019/07/termlimits/

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to late seventies there is the danger of declining intellectual powers. Finally, as Fix the Court states, political parties will look for young candidates for nomination, and no doubt he or she will be coached as to how to respond to questions from Senators: Life tenure has turned Supreme Court nominations into a political circus. It’s no longer a priority to find the best candidate for the job – a candidate who will serve with integrity and who has experience outside of an appellate courtroom. Instead, the party in charge scrambles to find the youngest, often most ideological nominee (who, at the same time, knows to say the right things at a confirmation hearing) in order to control the seat for decades to come.8

For these reasons the new and updated Constitution states: Article III, Section 1 reads in part: The time as Justice in the Supreme Court shall be limited to 20 years or the Justice’s seventy-second birthday, whichever comes first. Retired Justices are eligible for any other federal office.

To relieve the burden on the nine justices (the number has varied since the Founding) this article is important: Article III, Section 3.3 The number of Supreme Court judges shall be thirteen. The senior Justice will assume the role of Chief Justice of the Supreme Court.

And to prevent political polarization from ruining the selection and confirmation of justices, there will be a balance of interests obtained by this addition to the updated Constitution: Article III, Section 4 The Senate and the President of the United States shall maintain a balance between political affiliations in the member composition of the Supreme Court. Majority parties in the Senate shall each among themselves choose a candidate to be a nominee for the Supreme Court. A majority party is one which obtains a 30 percent or more vote in the Presidential election. Appointments to the Supreme Court will proceed 8

 Ibid.

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until there is a balance of political affiliations in the Court. When a political party in the Senate chooses a person by vote among t­ hemselves, this nominee’s name and credentials shall be submitted to the President of the United States. The President may reject the nominee, in which case the Senate by a two-thirds vote of the entire Senate, may override the Presidential veto. In the event the two-thirds vote fails, those with that same political affiliation may vote on a new candidate and present that person’s name and credentials to the President, who may accept or reject it.

Misconduct by Representatives and Senators  James Madison, John Adams and other Founders feared that among the “commoners” elected to the House of Representatives there would be those who would be disruptive and commissioners of various vices.9 So, they debated as to whether Representatives should be elected each year or every two years. They decided upon two years, primarily owing to the distance members would have to travel on horseback. On the other hand, they believed that the Senate would be filled with persons of knowledge, talent, and virtue, and therefore worthy of six years per term. The Founders were correct about riffraff becoming Representatives in the House, but wrong that Senators would necessarily be talented and virtuous. The situation today is grim compared to the Founders’ awareness of possible disruptors. Today, there are persons in both the House and Senate of base moral character, persons ignorant of important, established facts, persons who oppose camaraderie and cooperation, people who abuse their rivals, people who want to diminish the size of government, especially entitlements. There are Congressional members who ignore or reject the established findings of science. There are many Representatives and Senators who patently care more about their own political party and their future within it than the good of the country. Little wonder that a significant majority of Americans, whether persons on the right, left, conservative or progressive, have lost trust in our democracy. Misconduct in the House of Representatives  The new Constitution contains the following two revisions at Article I, 3.1 and 3.4: 

9

 Federalist No. 58 and the John Adams section of Chap. 4.

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3.1 Any member of the House of Representatives who disrupts the discourse and operations of the House, or who uses profanity or personal attacks on other House members in a repetitive manner, or who repeatedly attempts to knowingly mislead the citizens of the United States, is subject to punitive measures, including censure, fines, removal from committee(s), or expulsion from the House of Representatives by a two-thirds vote. A representative proven to have engaged in sexual misconduct with a staff member is expected to resign from office. A House member found guilty of a felony is thereby expelled from the House. The Sergeant-at-Arms may fine and/or recommend for censure a House member for misconduct. The House member may appeal to the House Ethics Committee, and that Committee will grant or deny the appeal. The House Ethics committee is authorized to increase the punitive actions in some cases. 3.4 Any member of the House of Representatives, having taken an oath to the Constitution, shall be expelled from office, never to hold a federal office again, if the evidence revealed in a Congressional investigation demonstrates that a member has engaged in insurrection or rebellion, or conspiracy to engage in insurrection, against the Constitution.

The House Sergeant-at-Arms is responsible for maintaining order in the proceedings of the House. He or she is authorized to incur fines on disruptive or rule-breaking members. The person subject to a fine or other retribution may appeal to the House Committee on Ethics. In some cases, the appeal is warranted. Interested readers may examine the online “Legislator Misconduct Database” which highlights misconduct, fines, and other punishment of House and Senate members.10 Some accused members have cases that are pending, but nearly all are resolved. Former House Speaker Nancy Pelosi, based on CDC recommendations, enacted a rule that members must wear a mask when the House is in session. This of course was due to the dangerous Covid-19 virus. A group of Republicans refused to abide by the rule and were fined, $500 for the first offense, $2500 for offenses after the first. Their reasoning appears to have involved either a claim that compulsory mask wearing violated their freedom, or the rejection of science-based findings on the efficacy of masks, or political motivation to be seen by their constituency  “Legislator Misconduct Data Base.” Access at: https://www.govtrack.us/misconduct

10

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as standing up to Big Brother, the federal government, or some combination thereof. Led by Georgia Congresswoman Marjorie Taylor Green, these members denied the efficacy of wearing masks, and rejected the compulsory wearing of masks. Taylor Green claims to have incurred “nearly $90,000  in fines.”11 She claimed, against the CDC, that masks were ineffective and likened the mask rule to wearing the Star of David in the Holocaust.12 Not being a virologist, public health official, or physician, her rantings are simply manifestations of ignorance and hybris. She decried Speaker Nancy Pelosi as “mentally ill,” compared Democrats to the Nazi party, and ranted against Nancy Pelosi’s “gazpacho” police patrolling the area.13 It does not seem to have occurred to maskless Republicans that their misconduct threatened each other. All in all, twelve House Republicans were fined for not wearing masks. Over a ten year period, from 2012 to 2022, there were a total of ninety-­ eight violations for misconduct across twelve categories: Masks (12 Repub., 0 Dem0; violation for completion of security requisites (5 Repub., 0 Dem); sexual misconduct (8 Repub., 7 Dem); illicit use of campaign funds (18 Repub., 6 Dem); participation in a protest demonstration (0 Repub., 6 Dem); bribery and corruption (5 Repub., 5 Dem); Illicit stock trading/insider use of information (5 Repub., 1 Dem); ethics violations (6 Repub., 9 Dem); carrying a weapon inside chamber (1 Repub., 0 Dem); felonies committed (3 Repub., 1 Dem); drunkenness, addiction (Repub., 2, 1 Dem); and 4 pardoned by former President Trump. Only four 11   As reported in The Hill. Access at https://thehill.com/changing-america/wellbeing/prevention-cures/588379-marjorie-taylor-greene-says-she-has-racked-up/Also, see Newsweek, April 21, 2022: https://www.newsweek.com/marjorie-taylor-greene-keeps-getting-mask-wearing-fines-­ could-avoid-paying-almost-all-1665160The Legislator Misconduct Database lists her fines at $93,000. 12  https://www.washingtonpost.com/politics/rep-greene-apologizes-for-comparing-­­ f a c e - m a s k s - t o - h o l o c a u s t - b u t - s t a n d s - b y - c o m p a r i s o n - o f - d e m o c r a t s - t o - n a z i - ­­ party/2021/06/14/552869f8-cd6a-11eb-8cd2-4e95230cfac2_story.html Also, The Hill “GOP lawmaker: Greene’s comments comparing mask policy to Holocaust are ‘beyond reprehensible’,” BY  MYCHAEL SCHNELL  - 05/23/21 10:14 AM ET Access at https://thehill.com/homenews/sunday-talk-shows/554956-gop-lawmaker-greenscomments-comparing-mask-policy-to-­holocaust-is/ 13  The Guardian, Thu 10 Feb 2022 11.12 EST “‘Gazpacho police’: Nazi gaffe lands Republican congresswoman in the soup. Marjorie Taylor Greene appears to confuse Hitler’s secret police with popular Spanish cold tomato soup.” Access at: https://www.theguardian. com/us-news/2022/feb/09/marjorie-taylor-greene-gazpacho-police

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members of the Senate were guilty of misconduct (2 Repub., 2 Dem). The total for Republicans is sixty- two cases of misconduct, Democrats thirtysix cases. Surely this reflects badly on the House membership’s credibility. The House Rules of Conduct states: There is hereby established by and for the House the following code of conduct, to be known as the “Code of Official Conduct”: 1. A Member, Delegate, Resident Commissioner, officer, or employee of the House shall behave at all times in a manner that shall reflect creditably on the House. 2. A Member, Delegate, Resident Commissioner, officer, or employee of the House shall adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.14

The number of Senatorial cases of misconduct is small due to a membership less than one-quarter that of the House of Representatives. Could it be the case that Senators are outstanding in virtue, and there is less misconduct because of that? The answer is No. Unlike the House of Representatives, the Sergeant-at-Arms in the Senate does not seem to have the authority to charge/fine Senators with misconduct.15 There is a Senate

14  Access at: https://rules.house.gov/sites/democrats.rules.house.gov/files/117-House-­ Rules-Clerk.pdf 15  Note that the United States Constitution states that each House makes its own rules. For the House this is stated in Article 1, Section 2.5. It is vaguely stated for the House and Senate at 5.1 (revised Constitution, page 5). Duties of the Senate Sergeant-at-Arm are: “The protocol responsibilities include escorting the president and other heads of state or official guests of the Senate who are attending official functions in the Capitol; making arrangements for funerals of senators who die in office; assisting in plans for the inauguration of the president and organizing the swearing-in and orientation programs for newly elected senators. The Sergeant at Arms leads the senators from the Senate to the House Chamber for joint sessions of Congress, to the presidential inaugural platform, or wherever the Senate may go as a body. As executive officer, the Sergeant at Arms has custody of the Senate gavel. As chief law enforcement officer of the Senate, the Sergeant at Arms is charged with maintaining security in the Capitol and all Senate buildings, as well as protection of the members themselves. The Sergeant at Arms serves as the executive officer of the Senate for enforcement of all rules of the Committee on Rules and Administration regulating the Senate wing of the Capitol and the Senate office buildings and has responsibility for and immediate supervision of the Senate floor, Chamber, and galleries.” Access at: https://www.senate.gov/reference/ office/sergeant_at_arms.html

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Select Committee on Ethics, which requires of Senators and staff to be certified by completing the required form on proper conduct.16 The major misconduct episode, still ongoing, and never before seen in U.  S. history, is the denial by Congressional men and women (all Republicans) of Joe Biden’s fairly won presidential election. This terrible assault on American democracy may be divided into these categories: (1) Refusal by Republicans in the House to certify Biden’s election. (2) Multiple efforts to de-certify election results in various states, including exertion of pressure placed on Georgia’s Secretary of State by Mr. Trump and others to change that state’s election results. (3) Replacement of Secretaries of State or other election officials with people who believed the election of Biden was fraudulent. (4) Attempt by Trump’s inner circle to create “alternate electors” in the Electoral College to replace authorized electors. (5) Attempts by Mr. Trump and others to compel Mr. Pence to deny certification and change the election outcome. (6) Conspiracy to establish by violent insurrection changes in the election results thereby ensconcing Mr. Trump as President. (7) Approval of and inaction by Mr. Trump in respect to the January 6, 2020 violence. (8) Redistricting by Republican state governments to win future elections by reducing the votes of minorities and the poor or handicapped, preponderantly Democratic voters. At this time the January 6th Select Committee in the House of Representatives, exercising its investigative function, has issued subpoenas for members of Trump’s family and inner circle, and in some cases contempt charges have been established and trials forthcoming for those refusing to testify. Some Congressional members have been subpoenaed. Trump and various members of his inner circle are currently being investigated by District Attorneys in New York State and Georgia. A Trump cohort, Rudy Giuliani, has had his law license revoked in New York State: 16  See U.  S. Senate Select Committee on Ethics. Here is the online statement: “All Members, officers, and employees must complete Code of Official Conduct training within 60 days of commencing Senate service. This training requirement may be satisfied either by attending a live Code of Conduct training or by completing the online video training. After completing the required training, each Member, officer, and employee must submit the  Individual Certification of Completion of Ethics Training Requirement Form  to their employing office’s Ethics Certification Officer (ECO). This form will be provided at the live training or, for employees taking the video training, by the employing office’s ECO. The ECO then reports all certifications to the Committee on a semi-annual basis. Access at: https://www.ethics.senate.gov/public/index.cfm/training

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The seriousness of Rudy Giuliani’s misconduct “cannot be overstated”, the New York Supreme Court said. Rudy Giuliani is suspended from practicing law in New York State following disciplinary proceedings over his ­misleading statements to courts and the public following the 2020 US presidential election. The New York supreme court issued its decision on Thursday, saying that it had found “uncontroverted evidence” that Giuliani made “demonstrably false and misleading statements to courts, lawmakers and the public at large” on behalf of his client, then-president Donald Trump, and created a “narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client.”17

In a bizarre and morally disgusting statement the Republican National Committee called the January 6th insurrection “legitimate political discourse” and censured its own members for coming to their own conclusions: A  resolution  approved unanimously said Cheney and Kinzinger were engaged in the “persecution of ordinary citizens engaged in legitimate political discourse.” On January 6, 2021, two weeks before the inauguration of Joe Biden, the US Capitol in Washington was attacked by Trump supporters who the former president had told to “fight like hell” in service of his lie that his defeat was the result of electoral fraud. The Confederate battle flag was carried into the halls of Congress. Rioters smeared feces on walls. Property was stolen, windows smashed. Members of Congress were hurried to safety. Some rioters sought lawmakers to capture and possibly kill. Some chanted for the hanging of Mike Pence, Trump’s vice-president who resisted pressure to refuse to certify electoral college results.

 The Hill. “New York Supreme Court suspends Giuliani’s law license.” BY  Mychael Schnell  - 06/24/21 11:38 AM ET Access at: https://thehill.com/homenews/state-watch/560046-new-york-supreme-court-votes-to-suspend-giulianis-lawlicense/Other supporters of election fraud and discussions concerning January 6th include Rep.  Paul Gosar  (R-Ariz.), Rep.  Lauren Boebert  (R-Colo.), Rep.  Mo Brooks  (R-Ala.), Rep.  Madison Cawthorn  (R-N.C.), Rep.  Andy Biggs  (R-Ariz.), and Rep.  Louie Gohmert (R-Texas). 17

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Seven people died. More than 100 police officers were hurt. More than 700 people have been charged. Eleven members of a far-right militia face charges of seditious conspiracy.18

Alexander Hamilton viewed insurrections as corrosive to good government: “An insurrection, whatever be the immediate cause, eventually endangers all government,” and must be met by “force“which is “necessary and proportionate.”19 Alleviation of Congressional Misconduct The revised and updated Constitution includes several Articles that would reduce misconduct. First, Article I, Section 7.2 of the new Constitution: 7.2 It is unlawful for members of the House or Senate to buy or sell stocks while in office, or to communicate insider information to anyone, including family members and friends. Stocks and other wealth parcels must be put into a diversified account, out of reach of the Congressman or Congresswoman until retirement from public office.

Second, Article I, Section 7.3 of the new Constitution states: 7.3 Illicit appropriation of campaign funds will result in return of those funds to campaign accounts and a fine equivalent to the amount illicitly appropriated, along with criminal prosecution when warranted.

Third, Article 7.1 of the new Constitution is inclusive of the following: 7. 1 … A Representative or Senator proven to have engaged in sexual misconduct with a staff member is expected to resign from office.

Fourth, a head start on preventing some forms of Congressional misconduct will occur under Article I, Section 4.2 of the new Constitution which makes candidates more transparent to voters:

18  The Guardian, Fri 4 Feb 2022 16.39 EST “Republican party calls January 6 attack ‘legitimate political discourse’.” Martin Pengelly in New York. Access at: https://www.theguardian.com/us-news/2022/feb/04/republicans-capitol-attacklegitimate-political-discourse-cheney-kinzinger-pence 19  Federalist No. 28.

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When a person in any state becomes a candidate for the office of the House of Representatives, he or she must release the record of his or her formal education, including areas of concentrated study, degrees earned, and where earned, and a statement of personal wealth and taxes paid for the previous five years.

Article I, Section 4.3 prevents Congressional seating of a phantom candidate, one who has duped voters by substantial misinformation about his or her life: Any candidate for Congress who significantly misrepresents his or her life and is therefore a phantom candidate who has duped voters, shall not be seated in either the House of Representatives or the Senate, and if seated, expelled.

Fifth, a sine qua non for candidacy for Congressional, Executive, and Cabinet members is that each must take and pass a seven-day workshop on basic knowledge, including the first-hand acquaintance with the struggles of poor families: Article I, Section 4.1 of the new Constitution requires a seminar for candidates for the House of Representatives: In order for a person to become a candidate for an election to the House of Representatives in his or her state, that person must have the required certificate that he or she has taken and passed an exam for the seven-day basic knowledge seminar. Basic knowledge will include the nature of truth, what science is and how it works, justice, the nature and sources of poverty, environmental problems, and strategies for preserving and restoring the environment. On one of the seven days the applicant will spend a minimum of eight hours with one or more poor families, observing their needs, their living conditions. The seminar will be administered at a participating university and conducted by its faculty-selected professors.

A sixth requirement is the strengthening of the power of the Senate Sergeant-at-Arms to warn or fine Senators of their potential or actual misconduct. Article I, 9.1 is inclusive of the following empowerment: The Senate Sergeant-at-Arms is authorized to fine any Senator who engages in misconduct. The Senator thus charged may appeal to the Senate Ethics Committee, which will rule on the merits of the appeal.

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Punitive measures are not limited to fines but may incur other punitive measures.

Given these changes embedded in the revised Constitution, the voting public will have greater insight into who the candidates are, and greater confidence in how they should perform if elected. Misconduct in office is something that no American desires in our democracy. Public and Congressional Ignorance and the Seminar on Basic Knowledge  Prior to entering public service, those who wish to be candidates for the Senate are required to obtain a permit to run for office. Article I, Section 6.9 of the new Constitution states:  In order for a person to become a candidate for an election to the Senate of the United States, that person must have the required certificate that he or she has taken and passed the seven-day basic knowledge seminar. Basic knowledge will include the nature of truth, what science is and how it works, justice, the nature and sources of poverty, environmental problems, and strategies for preserving and restoring the environment. One of the seven days the applicant will spend a minimum of eight hours with one or more poor families, observing their needs, their living conditions. The seminar will be administered by a participating university with faculty-selected professors.

Why is this necessary? If it is important, why is it important? Many government officials are ignorant of subject matter so basic that they seem to judge issues on hearsay or impulse, or what their Party wants them to say. The victim here is Truth. Honesty—believing what you take to be true—is important, but only a negative virtue. The honest person is not engaged in deception. To be a positive virtue the honest person must have inquired, using educational facilities, into the nature of the object of belief. People are responsible for the beliefs that they have. For example, remote Taliban villagers were being honest when they said the earth was flat—no attempt to deceive, no vice, and no educational facilities to see otherwise. In public media the Truth takes a beating through deceptive or exaggerated and endlessly repetitive advertising. In politics the Truth is dragged through the mire of “alternative truths” and “fake news.” Politicians, acknowledging what is true in private among themselves, may say the opposite in public. Ignorance of the devastation of ecosystems and species populations

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is still widespread. How many Congressional members have first-hand knowledge of what it is like to be very poor? An introduction to basic knowledge is a way to make candidates for Congressional seats, Cabinet seats, or those in Executive leadership, more aware and more sensitive to important issues. This seminar will begin with a discussion of the nature and tests of truth, including the correspondence, coherence, and pragmatic theories of truth. A full day will be spent explaining how science works—how it tests hypotheses, the role of confirmation by peers, the self-corrective nature of scientific method, and the presentation of science as the best, most reliable way of gaining knowledge about the world, the only method that systematically yields benefits for mankind. Another day will be spent examining morality and ethical theory, including the nature of responsibility, the duty to respect and care about others. Another day will focus on justice: Justice for those suffering from various types of discrimination, justice for immigrants, and justice in policing and in the courts. On another full day the potential candidate will be with pre-arranged families who are struggling to make ends meet. These visits are meant to reveal the range of struggles that the very poor endure, and a consideration of how their situation could be improved. Poverty is a harsh thing to endure: A family having to sell their food stamps to get their water or their electricity turned back on; slumlords charging excessive rents and failing to repair leaking roofs; lack of transportation to get to the doctor’s office or the grocery store; city public works ignoring poverty areas—no sidewalks, streets in need of repairs, little or no effort at beautification. The seminar on basic knowledge must be renewed each time a high-­ level federal employee (Congressional, newly appointed Cabinet member, or Executive) runs for re-election. Physicians, social workers, and others who affect countless lives, must have their licenses renewed through participation in workshops, so by parity of reasoning government officials whose actions affect countless lives, must do likewise. Is it certain that the seminar will improve the merits of those candidates running for office? No, it is not certain. But a potential candidate’s ignorance, his or her biases or prejudices, will be challenged in a significant way, and he or she will have to struggle to maintain these biases.

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The seminars will be conducted by volunteer universities in the general region in which the potential candidate lives, but not at his or her alma mater. The university faculty will determine which faculty members conduct portions of the subject matter. Many officials, perhaps even most officials, in government are not aware of how extensive is the damage human beings have done to ecosystems and the health of plant and animal species everywhere.20 The entire biosphere of planet Earth is under siege: The ever-increasing size and ­numbers of dead zones in the oceans due to the “deadly trio;”21 reduction in marine populations and de-calcification of marine systems with shells and exoskeletons; melting of snow and ice in Greenland and western Antarctica have the real potential of inundating the world’s most populated coast cities, such as New York, London, Hong Kong, etc., together with the substantial diminution of the world’s land mass; Melting of Greenland’s snow and ice releases freshwater in sufficient amounts to slow done or stop the “Great Conveyor” that propels the currents along the east coast of America and the Gulf Stream in the South; destruction of the earth’s prime forests; continued emissions of carbon monoxide, particulates, pollutants in the air and in lakes, rivers, and oceans; movement north of plants and animals out of their damaged ecosystems, with concomitant emergence of new bacteria and viruses. Unless major steps are taken worldwide, there looms the possibility of a sixth mass extinction.22 Repairing the Federal Budget Process The United States Congress fails time and again to create a budget for one fiscal year. Polarization has resulted in the spectacle of having to pass short-term budget resolutions, some as short as six weeks, to keep the government from bankruptcy and citizens not receiving their monthly checks. The new revised and updated Constitution has created a mechanism for motivating those directly 20  Status of plant and animal species worldwide can be found at the International Union for the Conservancy of Nature—the “Red List”—at https://www.iucnredlist.org/Click on “Advanced.” 21  Warming of the oceans, acidification, and deoxygenation due to carbon dioxide overload. See the chapter, “The Destruction of the Earth,” in my book, Cosmopolitanism and the Evils of the World (Palgrave/Macmillan, 2020); Also, from nine years ago: “Scientists warn of ‘deadly trio’ risk to ailing oceans,” Phys Org, Oct. 3, 2013. Access at: https://phys.org/news/2013-10-scientists-deadly-trio-ailing-oceans.html 22  Defined as 75% or more of world’s species. This is amply described in my Cosmopolitanism and the Evils of the World, published in 2020 by Palgrave/Macmillan.

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involved in the budgetary process to pass a year-long budget, not some temporary stopgap. The annual budget must be set and approved by October 1. Everyone directly involved in the budgetary process at the legislative and executive levels will be fined daily for failing to reach a fiscal year agreement. Fines of $1500.00 per day begin on October 2 or .5% per day of their yearly salary, whichever is greater, and continuing until the year-long budget is set. Fines will be automatically deducted by the Treasury Department from the payroll checks of legislators and the President and cannot be counted on tax returns as a deduction or decreased gross income. Having a set annual budget eliminates the stress on those who need to be reassured that their paychecks will be distributed. Moreover, it eliminates the embarrassment that the United States suffers at the international level, and the shame of having our credit rating reduced. Elimination of the Electoral College  The new Constitution eliminates the Electoral College. Article II, Section 1.2 begins:  The appointment of State electors is hereby expunged from the Constitution. The President shall be elected by national popular vote alone.

Federalist No. 68 authored by Hamilton attempts to justify the election of the President by Electors from each of the various states. Each state will have the number of electors equal to the sum of its Senators and Representatives in the House. The primary reason for the existence of Electors offered by Hamilton is that Electors will be selected “by their fellow citizens” and “will be most likely to possess the information and discernment requisite to such complicated investigations.”23 Electors, he says, will be “detached” from “heats and ferments” and have a “transitory existence.” It is a “moral certainty” that, given the character of the Electors, the President will be “pre-eminent for ability and virtue.”24 The attempt to justify the existence of Electors and the Electoral College fails. Hamilton’s justification fails. The people should directly decide their president by nationwide popular vote. Most people have no

 Federalist No. 68, Hamilton. 258.  Ibid., 259.

23 24

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idea who the Electors are from their state, and have no inkling as to how, or by whom, they are chosen. According to one author, Today, the most common method of choosing electors is by state party convention. Each political party’s state convention nominates a slate of electors, and a vote is held at the convention. In a smaller number of states, electors are chosen by a vote of the state party’s central committee. Either way, political parties usually choose people whom they want to reward for their service to and support of the party. Electors can be elected officials or party leaders in the state, or people who have some kind of personal or professional connection with the party’s candidate.25

Chosen because of service to the party? Chosen because of a personal or professional connection? Whatever happened to choices based on character and talent? This sounds much like behind- the-scenes wheeling and dealing. John Dewey long ago precisely characterized the electoral college and its failure: The electoral college assumed that citizens would choose men locally known for their high standing; and that these men when chosen would gather together for consultation to name some one known to them for probity and public spirit and knowledge … at the outset there was no dream of the time when the very names of presidential electors would be unknown to the mass of the voters … and when the electoral college would be an impersonal registering machine, such that it would be a treachery to employ the personal judgment which was originally contemplated as the essence of the affair.26

A background reason in the thinking of the Founders was the fact that a majority of Americans at the time were uneducated or poorly educated. The United States was primarily a nation of farmers. This was an additional reason for the insertion of Electors who, they believed, would be more sophisticated than the common man. Today, however, there are a large number of educated people, and most people have access to multiple media discussions about candidates. The Founders, faced with the choice between the poorly educated deciding upon a president by popular vote,  History, “How are Electoral College Electors Chosen?” Sarah Pruitt, Dec. 14, 2020.  John Dewey, The Public and Its Problems (Chicago: The Swallow Press, Inc., 1954), 111–112. History, “How are Electoral College Electors Chosen? 211. 25 26

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or Congress deciding upon a president, they took the middle road with the establishment of the Electoral system. One argument supporting the Electoral System is that, if the President should be decided by popular vote, then candidates seeking the Presidency would limit their campaigning to heavily populated states and urban centers. While this may be true, the same difficulty arises with the Electoral system: Nov. 6, 2016, episode of PBS NewsHour revealed that “Donald Trump and Hillary Clinton have made more than 90% of their campaign stops in just 11 so-called battleground states. Of those visits, nearly two-thirds took place in the four battlegrounds with the most electoral votes — Florida, Pennsylvania, Ohio, and North Carolina.”27

More heavily populated states have more Electors and thus the problem remains with both election by Electors and election by popular vote. With Electors, swing states such as Florida, Pennsylvania, Ohio, and North Carolina—just four states! —can decide the entire election. Efforts to support the Electoral College on the grounds that without it small states would suffer ignore the fact that with it small states suffer due to a small number of electoral votes. On six occasions the President was elected by Electoral count but lost the national popular vote. This goes against the will of the people. Confidence in democracy diminishes when the Supreme Court decides an election outcome on suspicious grounds, as happened in the Bush versus Gore election. It is contrary to reason that a presidential election might turn on whether holes punched in a ballot were punched all the way through, as happened in Florida. Is this a democratic system which allows 538 people out of 325 million people to decide who will be the next president—and these 538 are strangers to the American people? Then there is the problem of renegade (so-called “faithless”) electors. It is not certain that state-chosen Electors will vote the will of the State’s people, as indicated in the vote count. According to Darrell M. West,

27  Britannica. ProsCons.Org. “The Electoral College—Top 3 Pros and Cons.” 12/9/2021.

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the Electoral College suffers from another difficulty known as the “faithless elector” issue in which that body’s electors cast their ballot in opposition to the dictates of their state’s popular vote. Samuel Miles, a Federalist from Pennsylvania, was the first of this genre as for unknown reasons, he cast his vote in 1796 for the Democratic-Republican candidate, Thomas Jefferson, even though his own Federalist party candidate John Adams had won Pennsylvania’s popular vote. Miles turned out to be the first of many. Throughout American history, 157 electors have voted contrary to their state’s chosen winner. Some of these individuals dissented for idiosyncratic reasons, but others did so because they preferred the losing party’s candidate. The precedent set by these people creates uncertainty about how future Electoral College votes could proceed.28

As recently as 2016 seven Colorado electors defied the statewide vote count and voted for Republicans such as Mitt Romney rather than the dreaded Donald Trump. Colorado erased their votes, claiming that electors are required to vote for the person who wins the state’s popular vote. One of the seven, Michael Baca, sued the State of Colorado, and “a three-­ judge panel on the U.S. Court of Appeals for the Tenth Circuit ruled that Colorado’s decision to remove Baca’s vote was unconstitutional since the founders were explicit about the constitutional rights of electors to vote independently.”29 As Darrell West is quick to point out, when the political environment is highly polarized electors might revolt against their State’s election outcome, creating the looming possibility that the election could be tipped against the nation’s popular vote. Protecting Federal Election Results The elimination of the Electoral College in presidential elections is a great benefit in easing the worries of the public that fraud, renegade electors, or other related misconduct has occurred. For example, carving up districts for the purpose of reducing the voting power of minorities (gerrymandering) would not affect the presidential vote outcome. Furthermore, restricting voting opportunities by mail, reducing the number of polling places, intentional insertion of 28  BROOKINGS POLICY 2020, CTOBER 15, 2019. “It’s time to abolish the Electoral College.” Darrell M. West. https://www.brookings.edu/policy2020/bigideas/its-time-to-abolish-theelectoral-college/ 29  Ibid.

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cumbersome proofs of identity, or other impediments designed to restrict voting should be illegal in a democracy such as ours, and is illegal in the new, revised Constitution: Article I, Section 3.7 states:  Redistricting by any State, or any other act which excludes any class of voters, is prohibited, and any such law is null and void.

Alexander Hamilton warned in no uncertain terms of putting elections in the hands of state governments: Nothing could be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it by neglecting to provide for the choice of persons to administer its affairs.30

The Founders intended that the House of Representatives should have the final say on certifying the presidential election. In regard to Senators and Representatives, the original Constitution, Article I, Section 4.1 states that each state’s legislature shall control “The times, places, and manner of holding elections,” but with the qualification that this may be altered by law, except for the place of election.31 It is probable that by “place” of election is meant the state itself. If it meant “districts” then the plural “places” would be in the text. The new, revised Constitution follows Federalist No. 63, in which Hamilton argues that restricting places of election would be subversive of democracy: … is it not evident that the policy of confining the places of election to particular districts would be as subversive of its own aim as it would be exceptional on every other account?32

Hamilton, in concluding that no special election provisions can or should be made for the wealthy, states that

 Federalist No. 59, page 228.  Original U. S. Constitution, Article 1, Section 4.1. 32  Federalist No. 63, page 234. 30 31

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the national government. Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections.

In the new, revised U. S. Constitution, Article I, Sections 3.5 states that The House of Representatives alone is the authority that certifies and finalizes state-by-state federal elections were conducted fairly and properly. Only demonstrated massive fraud, or fraudulent handling of vote tallies by the Secretary of State or other tallying official or demonstrated massive voting machine malfunction are warrants for the House impugning a State’s or States’ certification. Individual state legislatures may choose the times, places, and manner of holding senate and representative elections, but these are subject to approval by the House of Representatives.

And Article I, Section 3.6 in the new Constitution states that Misreporting, altering or distorting voting results in a federal election by a Secretary of State or other State Certification Officer is a felony.

The protective measures for fair and honest elections are stated in the new, revised Constitution at Article II, Section 1.3: Each state shall employ the most reliable and trustworthy equipment for the Presidential election. Monitors and a supervisor will be present at the voting places. A challenge to the election results in any state must be based on evidence presented to that state’s Secretary of State or other certifying Election Official. If the evidence indicates that a recount should take place, then the Secretary of State or Certifying Official will issue a statement calling for a recount. When the recount has taken place, the results will be examined by the State’s Secretary of State or Certifying Official, who will then determine if fraud or error has occurred that would alter election results. If no such significant fraud or error is found, then the Secretary of State or Certifying Official will certify that the results are valid and trustworthy, and the results will be sent to the United States House of Representatives, pending any court challenges that may take place. Fines and contempt of court charges may be incurred in the event that frivolous lawsuits are filed challenging election results. If there is a court challenge to the Secretary of State’s certification, then the ruling by a federal judge is final. If the federal judge finds no significant fault in the certification,

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then the Secretary of State must submit the certified election results to the House of Representatives, otherwise the court sends the election results back to the Secretary of State to be re-examined. As stated previously, the House of Representatives has final authority concerning certification of the vote by each State, as authorized by Section 1.8.

Restrictions on the Power of the President The Environment It is unlikely that the President of the United States would be an authority on the health of the natural environment. Environmental groups, federal agencies protecting wildlife, forests and waterways, the Fishing Industry, Native Americans, and other groups have petitioned successfully for the protection of species, oceans and waterways, the national parks, and wilderness areas. Diminishing populations of species, encroachment upon forests, destructive and otherwise hazardous ocean drilling, irresponsible disposal of waste, non-biodegradable plastics in lakes, rivers, and oceans, erratic massive droughts enabling wildfires, or massive flooding, acidification of the oceans are evidence that now is not the time, nor is it ever the right time, for a President to insert himself or herself into the process of further diminishing protected areas. Of course, it was impossible for the Founding Fathers to peer into the future and observe this destruction. Therefore, the new, revised United States Constitution restricts the power of the President to overturn or in any way diminish environmental protections. But he or she may create a new protected area with the approval of Congress. Article II, section 2.5 of the new Constitution states: 5 The President of the United States may not at any time rescind the protections provided for endangered species, national parks, wilderness areas, public lands, monuments, oceans, waterways, rivers and other designated areas for public benefit and recreation. The President may create a protected area with the advice and consent of a simple majority vote from both Houses. Allocations for fair compensation to private individuals, groups or businesses must accompany the newly approved, protected area.

It is to be noted that the Bill of Citizen Duties and Responsibilities of this new Constitution contains the following important exhortation at Article VIII, Section 4::

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RESPECT AND CARE FOR NATURE. Human beings are members of a biotic community along with plants and animals of myriad kinds. Respect and care for living beings is a moral duty and involves preserving healthy ecosystems and restoring truncated ecosystems.

Pardons  A second important restriction on Presidential power concerns the matter of pardons. It is an axiom of criminal law that citizens be held accountable under the law for their actions. Hamilton, in Federalist No. 74, discusses pardons in the context of laws that may be too severe, as they are in many countries, with no chance of reprieve:  The criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.33

On his view pardons are applicable to the guilty, and it is better, he believed, that mercy for the guilty should be administered by one person—the President—than by several persons. He states that the power of the President for “reprieves and pardons for offensives against the United States” should be “as little as possible fettered or embarrassed.” But the President must exercise “scrupulousness and caution” and avoid “injudicious or affected clemency.”34 It must kept in mind that for the Founders the concept of Presidential pardons is tied to the concept of justice. Handing out pardons as if the President were a candy store or gift-giver was not in the Founder’s conception of pardons. There are some positive values to pardons, the first, already noted and adopted by Hamilton, is lessening the severity of a court punishment. In addition to serving justice, a pardon is a beacon of light exposing the need to repair the law to serve fairness. Second, times change. An additional value of pardons is that social values change over time. For example, many persons were imprisoned for using, buying or selling marijuana. Years of imprisonment were placed on those dealing in more addictive drugs. Today, although federal laws remain in place making marijuana and other drugs illegal, marijuana use is becoming more acceptable as a medicinal, a way of ‘feeling good,’ and a way of reducing violence in the drug underground. Ten years imprisonment for selling cocaine or heroin is thought too severe. Mass commutations, such as those made by Presidents Obama  Federalist no 74, page 279.  Ibid. Mercy is better served “undivided.”

33 34

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and Biden, may retain fines, probation, community service, but not lengthy imprisonment. Someone found guilty may retract his or her petition for clemency and decline the pardon. One reason a person might do this is that a pardoned person loses his or her right in court to take the fifth amendment concerning self-incrimination. Unlike all other cases, the commutation of the death penalty cannot be declined by the convicted person. What are the restrictions on a President’s use of pardons? First, a President can only pardon federal crimes. Second, the President cannot pardon himself or herself—cannot be a judge. If a President could pardon himself or herself, that would be an admission of guilt and a ground for impeachment. If a President could legally pardon himself or herself, then there would be no limits on executive misconduct. Third, a Presidential pardon must detail the crimes or misconduct for which a pardon is being issued. A President cannot issue a valid pardon for “any and all” crimes and misconduct by the recipient. Clemency cannot be given for a crime about which you know nothing. What are the condemnable uses of pardons by the President, pardons finding no support in the writings of the Founders, and contrary to the rule of justice? Some persons who have committed a crime are pardoned because they are politically close to the President. For example, President Bill Clinton pardoned 176 people a few hours before George W. Bush was inaugurated. Many of those pardoned were officials in the Clinton administration; many had not even applied for clemency. No time was allowed for the Pardon Attorney to carefully review this mass of pardons. Another condemnable use of a pardon is to point a finger at those who have committed the crime in order to focus media attention on those culprits, while drawing attention away from the President’s own involvement in that crime. Another contrary-to-justice pardon is pardoning a family member (President Clinton pardoned his half-brother Roger). A quid pro quo pardon is meant to result in those pardoned to return the favor by not testifying against the President’s involvement in some misconduct. None of these kinds of pardons involve the rule of justice. Popular language has taken the Founder’s “reprieves and pardons” to be shorthand for at least six manifestations of Presidential power: (1) Absolute pardon or full pardon, the most sweeping form; (2) Conditional pardon is pardon contingent upon the person’s future behavior and may involve punishment not contained in the court’s verdict and sentencing. (3) Commutation, or the lessening of a punishment assigned by the court;

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(4) Reprieve, the postponement of a sentence; (5) Amnesty, or relieving some group of named or unnamed individuals of criminal activity. George Washington issued the first amnesty in 1795 for those who participated in the Whiskey Rebellion, as Jimmy Carter did for draft dodgers during the Vietnam War era.35 (6) A Pre-emptive pardon is a pardon given before or during a trial, making the trial pointless. (7) Near-Death reprieve. Those dying in prison may be given a reprieve to go to the relative serenity of their home to die. President William Howard Taft commented upon this: There has been a custom in the Presidential office of pardoning men who are supposed to be near their death to enable them to go home and die with their families. The difficulty in such cases is in being certain that death is near … I had two notable cases. . .l instituted as thorough an investigation as I could through the army and navy surgeons … One man died … The other recovered at once, and seems to be as healthy and active as any one I know.36

In recent times the number of pardons has varied greatly. President Obama pardoned over 1900 individuals, Trump just over 200. Pardons for those who have not been found guilty in court proceedings have occurred. Gerald Ford pardoned Richard Nixon, who had not yet been charged with a crime. A useful summary of pardons today is the following: Finally, there is no review of pardons. This issue, too, was brought up in the Constitutional Convention, that pardons be granted with the consent of the Senate, but the measure was defeated on the vote of eight states to one. In modern days, there is an office in the Justice Department where pardons are sent, and a Pardons Attorney who reviews and recommends applications. The President may still receive pardons personally, and may grant them at any time. The President need not provide a reason for a pardon, and the courts and the Congress have no legal authority to approve, disapprove, reject, or accept a pardon. Currently, the only way to change the pardon power is by constitutional amendment, though history has shown that the

35  See Brookings, January 17, 2021, Richard Lempert, “Presidential Pardons: Settled Law, unsettled issues and a downside for Trump.” Access at: https://www.brookings.edu/blog/fixgov/2021/01/17/presidential-pardons-settled-law-unsettledissues-and-a-downside-for-trump/ 36  Cited by Jeffrey Crouch, The Presidential Pardon Power (Lawrence, Kansas: University of Kansas Press, 2009), 25.

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scope of the power can be modified by the courts (as in the acceptance doctrine).37

Established June 16, 1893, the Office of the Pardon Attorney within the Department of Justice functions (as it now stands) in a purely advisory role to the President. He or she is under the direction of the Deputy Attorney General, and he or she receives all petitions for clemency, investigates each case, often appealing to the United States Attorney or Assistant Attorney for information (since Presidential pardons are limited to federal cases). The U.  S. Attorney’s office is a valuable source for information about a person asking for clemency: the extent of the petitioner’s wrongdoing and the attendant circumstances, the amount of money involved or losses sustained, the petitioner’s involvement in other criminal activity, the petitioner’s reputation in the community and, when appropriate, the victim impact of the petitioner’s crime.38

The grounds for recommending or denying clemency are seven: (1) Post-conviction conduct, character, and reputation; (2) Seriousness and recentness of the crime. There is typically a five year waiting period before a petition is examined (in some cases this waiting period may be waived); (3) Acceptance of responsibility, remorse, atonement; (4) Relief from any of a variety of missteps in the court proceedings or sentencing; (5) The amount of time already served. (6) Meritorious service given the government, such as cooperation with an investigation or prosecution. (7) Disease or old age of the petitioner.39 The Pardon Attorney prepares a report which is sent to the President advising to recommend or reject a petition for clemency. But what of Presidential pardons which bypass the Office of the Pardon Attorney? These pardons are certainly violations of what the Framers had in mind concerning the scope of pardons, which, to cite Hamilton again, must employ “scrupulousness and caution” and avoid “injudicious or affected clemency.” Therefore, the new Constitution requires all granting of pardons to have first gone through the assessments by the Pardon Attorney, 37  U. S. Constitution. “Constitutional Topic: Presidential Pardons.” https://www.usconstitution.net/consttop_pard.html 38  United States Department of Justice, Office of the Pardon Attorney, Section 9-140-111. Access at https://www.justice.gov/pardon/about-office-0 39  Ibid., 9-140-113, Standards for Considering Commutation Petitions.

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U. S. Attorney’s office, the district court and judge. Moreover, except in the case of severe disease or old age—the only mercy case allowable--all Presidential pardons must be pardons of persons found guilty in court. Pre-emptive pardons—pardons of people before a trial or during a trial-are prohibited and not within the putative scope of the Founders. The new circumscription of Presidential pardons in the revised Constitution is found at Article II, 2.2: 2 The President shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. Presidential pardons are restricted to those persons found guilty of a federal crime and who have petitioned for clemency. Having received an application for clemency, the Pardon Attorney investigates and sends a recommendation of merit or a rejection. In all instances of Presidential pardons, the President’s acceptance or rejection of the Pardon Attorney’s recommendation must first be sent in draft form to the Pardon Attorney and the Federal judge who ruled on the case, and each has 30 days to comment if they feel compelled to do so. Then, unfettered, the President may pardon or decline to pardon. His or her reasons for granting a pardon must be made in writing and made public. The President may not grant a pre-emptive pardon or grant a pardon which by-passes the Pardon Attorney’s investigation and recommendation. The President may not grant a pardon on the basis of personal friendships, for political reasons, for quid pro quo, or personal feelings of sympathy. Pardons serve justice. Mercy pardons commuting a sentence may be granted only for persons dying or suffering from severe and permanent maladies.

Military Decisions The President alone cannot declare war. Article I, Sections 11.12, 11.13, and 11.14 state that only Congress can declare war, although the President make seek such a declaration from a joint session of Congress (as Franklin Roosevelt did upon the Japanese attack on Pearl Harbor). Section 11.18 states that Congress can call forth the militia to suppress insurrections. In the new, revised, and updated Constitution the President’s authority to use military force in response to foreign aggression is stated in Article I, Sections 11.12 and 11.14. Included are requirements that the President explain thoroughly to the American people the grounds for his or her decision. Article I, 11.13 states: 

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In the event that there is an attack by a foreign power or attack initiated by a foreign power upon the United States, upon its territories, upon the United States military, or upon installations of the United States, the President may order a military response to the attack without approval from Congress, but is required to explain to Congress and the American people the nature of the attack, the outstanding wrongness of the attack, the appropriateness of a military response instead of sanctions, the selection of a proportioned military response, the estimate of a possible escalation, the estimate of military and civilian casualties, the impact of the response upon ecosystems, artworks, and national monuments of the foreign aggressor.

Article I, Section 11.14 establishes a time-limit: The President is required to seek Congressional approval for any military action which extends beyond sixty days.

Many people in many countries do not understand what devastation the military use of nuclear bombs would reign down upon the earth. The earth, wrapped in a biosphere, would be harmed so extensively that all complex life forms including human beings would be extinguished or reduced to a ragged few specimens doomed to die suffering. A high probability exists that any offspring brought into existence in this radioactive world would be deformed due to genetic mutation. The combined number of hydrogen bombs for all countries numbers in the thousands. The United States and Russia alone account for roughly three-thousand warheads. The atomic bombs dropped on Hiroshima and Nagasaki are firecrackers compared to today’s hydrogen killers. Each hydrogen bomb has 300 times more explosive power than the Nagasaki bomb. One ICBM missile can carry 10 hydrogen bombs, each one with its own assigned target once it begins its descent. An argument has been made that, in the event that the United States is subject to nuclear attack, the best response would be to do nothing, on the hope that life on this planet could be preserved.40 However, it is unlikely that a U. S. President would not respond in kind, however convincing the do-not-respond argument is. Missiles would be launched immediately given the satellite pictures of the aggressor’s attack. MAD, or  See Anthony Kenny, The Logic of Deterrence. (Chicago: The University of Chicago, 1985).

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mutually assured destruction, would rule the day. Therefore, Article II, Section 2.3 in the new Constitution restricts the President in one respect, given the possibility that a U. S. President may become unbalanced: The President has the authority to order a nuclear strike(s) only if there is a nuclear attack on the United States, its territories or vital interests. In the event that the President orders a nuclear strike without evidence or intelligence data that the United States or its interests have been attacked, the order is illegal and must be immediately countermanded by the Joint Chiefs of Staff.

The Judiciary  Article III, Section 1 of the original Constitution establishes one Supreme Court and such inferior courts as Congress may “ordain and establish.” Apart from this the Constitution is rather skimpy on details. There is no reference to the size of the Supreme Court or the qualifications necessary for sitting as a justice. Article III, Section 1 also states that Supreme Court Justices “shall hold their offices during good behavior,” and their salary cannot be diminished. The Founders were anxious to make the federal courts entirely independent of political or monetary pressure. Seeing the need and the necessity of a legal system, the Founders, led by Connecticut Senator Oliver Ellsworth, formed a committee of ten Senators, one from each state, with Ellsworth as committee chair. The result of their work was the Judiciary Act of 1789. Originally the court consisted of a Chief Justice and five Associate Justices; then in 1863 the court was increased to ten, followed by seven, then nine the number of justices today. The Supreme Court has two major functions. One is to review decisions of Appellate Courts; the other is origination, the Court’s power to rule on whether legislation or executive actions are constitutional or unconstitutional.41 In the new, revised Constitution three major changes improve federal courts. First, it is best to abandon the notion that “good behavior” means, or ought to mean, a lifetime on the court. There are three reasons for this. One is that old age typically brings with it a reduction in intellectual 41  United States Senate, “Senator Ellsworth’s Judiciary Act.” Access at: https://www.senate.gov/legislative/landmark-legislation/judiciary-act-1789.html

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capacities. Second, excessive longevity on the bench can put an aged justice out of touch with changing times. Third, is the Sisyphus effect—tiring of the same daily work routine. Professors Garnett and Strauss concluded that the only way to overcome these objections is a constitutional amendment: some critics of lifetime tenure … say that lifetime tenure causes judges to stay in their positions longer than they should—after they have become too old to do their job well, either just because of age or because they are out of touch with modern times. Maybe, these critics say, judges should be appointed for a fixed term of years—say 14 or 18 years—with no chance of being reappointed. They still couldn’t be fired and, since they would have to leave at the end of their term, they would have no reason to shape their rulings in a way that pleases powerful figures or popular opinion. But a change like this would almost certainly require a constitutional amendment, and the chance of its happening is extremely small.42

The additional change to Article III, Section 1 of the new Constitution contains a term limit: The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme Court and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office. With continued good behavior a federal judge may hold office no longer than twenty years or until the day of his or her seventy-second birthday, whichever comes first.

This change is of benefit to the well-being of our country, for the reasons cited. The history of the Supreme Court, especially in recent times, is a history of political and party doctrine swaying the rulings of the Justices. One of many examples that can be cited is Bowers v. Hardwick 478 U.S. 186. Led by conservative Justices, the court ruled in favor of Georgia’s law 42  National Constitution Center, Interactive Constitution, “Interpretation of Article III, Section 1,” Richard W. Garnett and David A. Strauss. Access at: https://constitutioncenter. org/interactive-constitution/interpretation/article-iii/clauses/45

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which criminalized oral and anal sex, whether heterosexual or homosexual. In a 5–4 majority opinion the court held that the fact that such sexual acts occur in the privacy of one’s home between consenting adults does not protect people from the reach of the law. For example, drug use or drug manufacturing in the home is not protected. Moreover, homosexual activity was not part of the “American tradition:” In the history and traditions of American society, the Court could find no law construing “homosexual sodomy” as a fundamental right deserving constitutional protection. Instead, the Court observed that sodomy was banned by the original 13 colonies and outlawed by all 50 states until 1961.43

Then there is the idea that the aim of the court is to protect “traditional” morality: Finally, the Court rejected Hardwick’s argument that even if homosexual sodomy was not “a fundamental right,” it must be protected from “irrational state regulations,” arguing that Georgia’s law was rational even if its purpose was to “legislate” morality. The Court asserted that all laws are, to a certain degree, rooted in morality, and thus to strike down this one because it is “moral” would necessarily strike down most laws.44

It seems clear that the Justices upholding the majority opinion expressed a distaste for the sexual acts in this case and were influenced by an earlier period in American history, a period in which older women made sure their dresses did not show above their knees, or when children were taught not to place their elbows on the dinner table, or when unmarried women were referred to as ‘“old maids.” No one, especially Justices themselves, should be fooled into thinking that justices are free from social conditions and accompanying political beliefs. Professor Stoddard is correct in stating: A careful review of the case, including the decisions of the two lower courts, makes clear that the Court’s opinion in Hardwick rests upon nothing more substantial than the collective distaste of the five justices in the majority for 43  Thirteen, the Supreme Court, Landmark cases, “Bowers v. Hardwick.” Access at https://www.thirteen.org/wnet/supremecourt/rights/landmark_bowers.html 44  Ibid.

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the conduct under scrutiny. The opinion is, to be blunt, devoid of logic. Moreover, in order to reach its conclusion, the majority seriously distorted the nature and posture of the issue presented to the Court. Bowers v. Hardwick is judicial decision-making by fiat rather than reason.45

Around the time of World War I philosopher Morris R. Cohen examined the claims of legal conservatives, whether legal positivists or legal moralists.46 His criticisms are extensive and crushing. His centerpiece essay

45  University of Chicago Law Review, Thomas B. Stoddard, “Bowers v. Hardwick: Precedent by Personal Predilection.” University of Chicago Law Review, 54 (1987). Online access at: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=4526&cont ext=uclrev 46  Legal positivists hold that the jurisprudence is no different than, say, physics—it is not dependent upon morality. Judges subsume their case under some law, like putting things in little boxes, relying on social facts. Positivists identify the existence of law with law’s source. A succinct description of the ideas of leading positivists is to be found in the entry under that name in the Stanford Encyclopedia of Philosophy. Its authors, Leslie Green and Thomas Adams cite, among others, Bentham, Hart, and Kelsen as leading positivists. In Bentham the source is the authority of the sovereign; In Hans Kelsen the source is the law as part of a social legal system: In this sense a valid law is one that is systemically valid in the jurisdiction—it is part of the legal system and identified as such by virtue of its dependence on the system’s social sources. The idea is distinct from that of validity as moral propriety. . . one may know that a society has a legal system, and know what its laws are, without having any idea whether they are morally justified. For example, one may know that the law of ancient Athens included the punishment of ostracism without knowing whether it was justified, because one does not know enough about its effects, about the social context, and so forth. For H. L. A. Hart the authority of the law rests on custom: For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced, that is, used to guide conduct. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, that is, as sources of law, and how laws may be changed. Access at: https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=legal-positivism Legal moralism is the position that the main function of law is to preserve common morality. For example, law sanctions monogamy but not polygamy. The Bowers v. Hardwick example in the text is another example of legal moralism at work.

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is “The Process of Judicial Legislation.”47 It begins with Cohen citing Justice Oliver Wendell Holmes, Jr.: But inasmuch as the real justification of a rule of law, if there be one, is that it helps to bring about a social end which we desire, it is no less necessary that those who make and develop the law should have those ends articulately in their minds.” (0. W. Holmes, Jr., 12 Harvard Law Review, 460.)

In 1870 Holmes was a member of the Metaphysical Club which fostered a new theory, American through and through—pragmatism. There are two components of a pragmatic theory of law: (1) The law is what the judges say it is when they rule in court; (2) The real meaning of the law is to be found in the “future experiential consequences” of the law, what Holmes refers in the passage cited as the “social ends” of law. Justices must have “articulately in their minds” the social consequences of how they may rule. Law is putatively for the benefit of society. In the United States the benefit is the happiness of its citizens.48 Positivists should recognize that what social ends flow from some law, in the final analysis these ends must have moral justification, even if the moral justification turns out to be insufficient or flawed. This is part and parcel of a wider theme, namely, ethics is a necessary part of politics. Without ethics an acceptable social order or arrangement would be to euthanize people over 65 or hang until dead red-headed children. Aristotle recognized that ethics circumscribes the good life whereas the task of politics is to create social conditions that enable the good life to be achieved by its citizens.

47  Morris R. Cohen, “The Process of Judicial Legislation.” American Law Review, March– April,1914, Cohen citing O.W. Holmes, Jr., 12 Harvard Law Review. 48  In Federalist No. 45, 186, Madison states, “Were the Union itself inconsistent with the public happiness, it would be, Abolish the Union. In like manner, as far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.”

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The reader may examine some of Cohen’s additional comments on judicial legislation by reading his 1914 essay. Some of these are in the footnote below.49 Two points emerge from this discussion. First, Justices may or may not be aware of how their moral and political beliefs influence their decisions (an exhaustive disjunct). In either case these beliefs cannot be purged from the judiciary’s proceedings and rulings. Second, it is better to acknowledge and bring these beliefs into daylight, and the new Constitution does just that, by bringing the polarization of conservative vs. liberal (or progressive) into balance in the Supreme Court. Hence, as cited previously, Article III, Section 3. 4 of the revised Constitution: The Senate and the President of the United States shall maintain a balance between political affiliations in the member composition of the 49  Cohen argues that if judges never make and should never make the law, then how did common law get started? The unavoidable answer is that the history of common law is the history of judges making the laws through their rulings. He states:

If judges never make any laws, how could the body of rules known as the common law ever have arisen, or have undergone the changes which it has? Moreover, not only is the common law changed from time to time by judicial decisions, but we may with Professor Gray go on to assert that in the last analysis the courts also make our statute law; for it is the Court’s interpretation of the meaning of a statute that constitutes the law. Another reason supporting the contention that judges make the law is the asymmetry between the legislative meaning of laws passed and the point of view taken by the courts: Cohen argues that courts must necessarily attach a somewhat different meaning to statutes than do the legislators, owing to the necessarily different point of view. The conditions of legislation make legislators view even the most general statutes exclusively as measures of relief to certain social demands. Courts, however, must construe them as integral parts of the legal system which controls the whole of life. Legislators can never have in mind all the possible consequences of their enactments, and many of them would be shocked and would even refuse to pass the bills. . . . Cohen argues that those who claim that justices should never make the law but only find the law—this claim is put in doubt by the indistinctness of the contrast: “In the physical world no antithesis seems more justified than that between making and finding. Inventing and finding a continent are surely incompatible. When, however, we come to human affairs, the antithesis becomes less sharp. Making or finding an opportunity, making or finding time, making or finding a theory, are not so clearly antagonistic or separable.”

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Supreme Court. Majority parties in the Senate shall each among themselves choose a candidate to be a nominee for the Supreme Court. A majority party is one which obtains a 30 percent or more vote in the Presidential election. Appointments to the Supreme Court will proceed until there is a balance of political affiliations in the Court. When a political party in the Senate chooses a person by vote among themselves, this nominee’s name and credentials shall be submitted to the President of the United States. The President may reject the nominee, in which case the Senate by a two-thirds vote of the entire Senate, may override the Presidential rejection. In the event the two-thirds vote fails, those with that same political affiliation may vote on a new candidate and present that person’s name and credentials to the President, who may accept or reject it.

To maintain clarity in the selection process, Article III, Section 3.5 of the new Constitution states: A political affiliation of a member of the Senate is based upon his/her political self-identity by which he or she was elected to the Senate. A person who was elected to the Senate as being independent of a political affiliation may participate in the party of his choice in selecting a nominee for the Supreme Court, but once declared may not vote in the other party’s nomination process for the Supreme Court.

At the time of this writing, two parties, mainly conservative Republicans and moderate or progressive Democrats, will be installed in the redesigned Supreme Court. There will be no more bickering over nominees and no more moral and political beliefs concealed from the public or concealed in the nominee vetting process. A rough balance of views will exist in the membership of Supreme Court Justices. The process of achieving this balance will take some time and will require an expanded number of justices. Hence Article III, Section 3.3: The number of Supreme Court judges shall be thirteen. The senior Justice will assume the role of Chief Justice of the Supreme Court.

The lower or “inferior” federal courts will have justices selected by the President with the approval by a simple majority of the Senate. Article III, Section 3.6

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Appointments to lower Federal courts are made by the President and require the approval of the Senate by a simple majority vote. The twenty-year limit applies.

Three Ways to Change the Constitution  Article V of the original Constitution states that a two-thirds favorable vote is required of both Houses of Congress if an amendment is necessary, or alternatively, when two-thirds of the States call for a convention for proposing amendments. In either case, it requires three-fourths of the States, or three-fourths of those.  Convention members to ratify the amendment(s). Thus far, of the twenty-seven amendments which have been incorporated into the original Constitution, none has been established by a convention. When both Houses of Congress by a two-thirds vote of its members propose an amendment or amendments, the proposal goes to the Archivist of the United States who heads the National Archives and Records Administration. The Archivist then sends a letter with the proposal to the governors of each of the fifty states, along with background information. The State governors submit the proposal to the State Legislatures. Then the State ratification process begins: When a State ratifies a proposed amendment, it sends the Archivist an original or certified copy of the State action, which is immediately conveyed to the Director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the Director acknowledges receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.50

The final step is the requirement that three-fourths of the States (that is, 38 of the 50 States) approve of the amendment(s), in which case the amendment becomes part of the Constitution and is published in the Federal Register. In the twentieth century twelve amendments have become part of the Constitution. One of these concerns the federal government’s right to collect taxes (XVI, 1913); another (XVII, 1917) prohibits intoxicating liquors; another (XIX, 1920) establishes the right of 50  National Archives, Office of the Federal Register, “Constitutional Amendment Process.” Access at: https://www.archives.gov/federal-register/constitution

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women to vote; Amendment XX (1933) describes when taking office shall take place and when the Vice-President may assume the office of President; Amendment XXI (1933) repeals Amendment XVII prohibiting liquor; Amendment XXII (1951) limits the time in office of the President to two elected terms; Amendment XXIII (1961) concerns the number of Electors for the District of Columbia; Amendment XXIV (1964) bans poll or other tax as a requirement for voting in any election; Amendment XXV (1967) concerns the Vice-President assuming the Presidency, the nomination of a Vice-President when the position is vacant, and the discharge of the President for the inability to continue in office; Amendment XXVI (1971) states that anyone eighteen years or older is authorized to vote. It is clear from these twelve twentieth-century amendments that only a few have been added to the Constitution that are directly of positive value to American citizens. Only three such amendments in 122 twenty-two years are not enough. Yes, no poll tax defeats one form of racism. Eighteen years or older to vote appropriately sits alongside eighteen years for eligibility to be drafted for wartime service. And it was historic that women were at last recognized as having the right to vote. Why have there not been additional amendments of great benefit to all Americans? There is little doubt that the Founders set the bar that must be reached to amend the Constitution far too high. Can you imagine three-fourths of State legislatures agreeing on a proposal? Can you imagine two-thirds of the members of both Houses agreeing on anything except the most uncontroversial proposals? The original Constitution is a quite skimpy document, replete with vagueness (e.g., about the Supreme Court) and ambiguity (“cruel and unusual punishment” should read cruel or unusual). The Bill of Rights, typically attributed to Madison, is skimpy and vague as well, a big disappointment to the man behind the scenes pushing for a bill of rights— Thomas Jefferson-- and the Bill of Rights was less than a more robust Bill of Rights that George Mason demanded at the Convention. How can the revision and updating of the Constitution take place with such a high and unobtainable bar to reach? To correct this, it is necessary to fall back on the comments of the Founders about changing the Constitution. And there are quite a few of these. As cited in Chap. 1, Jefferson, upon reflection considered it necessary that the Constitution be reviewed and updated to be beneficial to the present generation:

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The question Whether one generation of men has a right to bind another, seems never to have been stated … I set out on this ground, which I suppose to be self-evident, that the earth belongs in usufruct to the living … no society can make a perpetual constitution, or even a perpetual law … Every constitution then, and every law, naturally expires at the end of 19 years.51

Madison states baldly that “The express authority of the people alone could give the validity to the Constitution.”52 Madison had written a Preface to the Preamble of the Constitution. In stating that all power is vested in and derived from the people, he states: That government is instituted, and ought to be exercised for the benefit of the people, which consists in the enjoyment of life and liberty, with the right of acquitting and using property, and generally of using and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it is found adverse or inadequate to the purposes of its institution.53

Hamilton regards it as a “fundamental principle” that the people can “alter or abolish the established Constitution, whenever they find it inconsistent with their happiness .”54 Madison, agreeing with Jefferson on the people being “the only legitimate fountain of power,” recognizes that the people “whenever it may be necessary to enlarge, diminish, or new-model the powers of the government” can do so, but Madison expresses some degree of caution about this. He worries that “frequent appeals [to the people] would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”55 To tinker with the Constitution is “too ticklish a nature to be unnecessarily multiplied.”56 He rejects Jefferson’s suggestion that Constitutional review should take place at fixed times.57

 RL, 631 and 634. Jefferson to Madison, September 6, 1789  Federalist No. 43, page 180. 53  RL, 597. Quoted by editor James Morton Smith. My boldface. 54  Federalist No. 78, page 292. 55  Federalist No. 49, page 201. 56  Ibid. 57  Federalist No. 50, page 203. 51 52

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In another Federalist paper Madison distinguishes between altering the Constitution or providing new provisions “which are expressly authorized,” as opposed to the “TRANSMUTATION of the government.”58 He appears to hold that these alterations and revisions are authorized “so long as a part of the old articles remain.”59 This book sets out a normative version of the United States Constitution—what it ought to look like today, in the present state of American society. This new Constitution, (1) meets all the requirements set out by the Founders; (2) it is congruent with Aristotle’s recommendation that “It is always wise to ensure that a majority of the citizen body is in favor of the Constitution.”60 A national referendum of 70% approval of this revised Constitution meets that requirement; (3) The revisions, updates, and additions leave a large portion of the original constitution intact and is therefore not a “transmutation” which Madison rejected. (4) It is a certainty that none of the Founders claimed to be able to see far into the future, and, given the massive changes in society, it is highly likely that they would approve of revising and updating their Constitution. Did they not surmise what was needed in their own time? (5) It attempts to lessen polarization, establish credentials for running for office, creates term limits with the possibility of Merit, and clarifies a considerable number of Articles such as pardons and the budget process. It expands the Bill of Rights, creates a Bill of Goods, and encourages six ethical principles which define the duties and responsibilities of American citizens. (6) Finally, the revisions and additions meet the necessary criteria set out in the Chap. 1: (i) They are national in scope and do not interfere with most local (State) laws, commerce, or culture; (ii) They are not only beneficial to every American but are beneficial to our citizens far into the future; (iii). They are unlikely to be put into law by Congress given the polarization of political parties; (iv). They put in place additions that reduce misconduct and other shortcomings on the part of members of the legislature, judiciary, and executive; (v). They require greater transparency and basic knowledge on the part of candidates for federal office, so that voters can have greater confidence in who it is that is running for office. Overall, updating the Constitution is meant, following Aristotle, to increase the size of the middle class and improve the lives, liberties and overall well-being of its members, while allowing the opportunities as well, to enter the minority class of wealthy citizens.  Federalist No. 40, page 163.  Ibid. 60  Aristotle, Politics, page 230. 58 59

CHAPTER 4

Why a Constitution Is Necessary. Philosophers on Constitutions: Aristotle and John Adams’ Defence

If a constitution enshrines a way of life, then different constitutions will effect different ways of life. (Nicomachean Ethics, 1165 b 22 1. See footnote on page 375 in The Politics of Aristotle, Edited and Translated With An Introduction and Appendixes by Ernest Barker (New York: Oxford University Press, A Galaxy Book, 1962). Hereafter all references to the Barker translation of the Politics will be abbreviated “PA.”) Aristotle

It is important for this work that the nature, function, and necessity of constitutional government is properly understood. A good place to begin the study of constitutions is the work of Aristotle (384–322 B.C.E.) in the ancient world. No one in that world of long ago studied, analyzed, and wrote more about constitutions than Aristotle did.1 Whereas his teacher Plato worked on the conjunction of philosophy and mathematics, Aristotle’s philosophy was based on empirical studies, and Aristotle’s

1  Ernest Barker says that “the legacy” of Aristotle’s Politics is his work on constitutions. The Barker translation of the Politics is 352 pages in length.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_4

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school, the Lyceum, was the world’s first scientific research center.2 Aristotle’s empirical studies included those of city-state constitutions, and gathering them up from far and wide was a project probably funded and supported by Alexander the Great. Aristotle’s achievements were impressive.3 His pioneering work on constitutions is one of these, containing many insightful remarks about constitutions. That lengthy work is the product of extensive research, for Aristotle is known to have studied 158 different city-state constitutions and lived through several changes in Athens’ constitution. One of these 158 “hand-books” is The Constitution of Athens, discovered in Egypt in 1890.4

Aristotle on Constitutional Government Aristotle’s analysis embraces an array of questions about the nature and function of constitutions. First and foremost is the argument that what comes before considerations about constitutions is the telos, the end or goal of having a state. His view is that the end or aim of a state is the happiness of its citizens, meaning by happiness (eudemonia) the flourishing of its citizens in acquiring human excellences that constitute good character, and possessing enough property to enjoy giving to others.5 Life in a state is the only way human beings can realize their potential as human beings. He who lives outside the state is either a beast or a god, for their nature is fixed, neither has potential.6 Happiness is the energized practice of goodness.7 (PA, 299) People have a natural impulse to engage in a social life, and a common interest in sharing the goods of life. So, the state aims at 2  Recall the famous painting, Raphael’s “The School of Athens.” It has Plato pointing up to first principles and mathematics, and Aristotle standing beside him, with his hand pointing outward to the wonders of the natural world. Testimony from the ancient world indicates that Plato would ask whether a theory proceeds from down to up or up to down. 3  Aristotle is the founder of logic as a necessary propaedeutic to the sciences; he wrote the first book on physics, the first full length texts in ethics, poetics or study of the fine arts, rhetoric, and the first study of mind as part of the energized and organized organism. 4  Barker’s Politics contains edited and translated passages from the 70 chapters of The Constitution of Athens. For a fascinating account of the origin, discovery, and acquisition of The Constitution of Athens, see Brent Nongbri, “The Papyrus of Aristotle’s Constitution of Athens: Provenance Questions,” Access at: https://brentnongbri.com/2019/01/01/the-­ papyrus-­of-aristotles-constitution-of-the-athenians-provenance-questions/ January 1, 2019. 5  PA, 50 and 301. 6  Ibid., 6. 7  Ibid., 299.

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the good life for its citizens. Ethics determines what the good life looks like, and politics establishes the means to this end.8 At this point it is to be noted that again and again in the discussions by the Founding Fathers, happiness is also the aim of the state.9 This will be discussed below. In addition to the end to be pursued, the state, to be a state, must have organization and the recognition of the authorities to whom citizens must submit. It is a function of a constitution to organize offices, especially the legislative body.10 Moreover, it determines how offices are to be distributed and what authority they each have. Aristotle, long before Montesquieu, recognized a tripartite form of government in which there are executives (“magistrates”), a deliberative body which deals with “common affairs,” and a judicial body (dikasteria).11 A constitution must be practical in the circumstances in which citizens find themselves, while at the same time approximating as much as possible in these circumstances to the ideal: “The nearest to the best must always be better than all the rest (PA, 183).” In an ideal constitution there should be an emphasis on creating a moral fiber in society and establishing the means to it.12 As discussed below, the means are creating good habits in people, beginning in early childhood. This same position was taken by John Dewey in his fifty- year-long reflections on democracy (see Chap. 16). The constitution provides the framework for laws. The laws, not people, are sovereign on Aristotle’s view. Where the people are sovereign there is “aggregate tyranny.”13 Yet, for the constitution to be stable and 8  In the Nicomachean Ethics Aristotle says that, even though politics is the master science, and, in that sense, ethics is subordinate, but that does not mean at all that political reasons can override ethics. Together they form the ethics of a political community living under a constitution that enshrines a way of life. This is a higher stage of human development than individual ethics. Nicomachean Ethics, 1094 b 8 and Barker’s comment (PA, 355) on same. Hereafter references to the Nicomachean Ethics will be abbreviated “NE.” 9  What “happiness” means for Aristotle and the Founding Fathers is not the same, but quite similar. References to happiness as the aim of the federal government and its citizens are in the Declaration of Independence, the Federalist papers, and correspondence between the Founding Fathers. Benjamin Franklin at one point said, perhaps tongue in cheek, that, although the God of the Universe is unknowable, it is certain that He would want us to be happy. 10  PA, 110 and 156. 11  But Aristotle’s analysis contains no checks and balances as in Montesquieu and the Founding Fathers. 12  PA, 156. 13  Ibid., 169.

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lasting, the people must approve it: “It is always wise to ensure that a majority of the citizen body is in favor of the constitution.”14 This is ­necessary for constitutional stability. Two other considerations are important for stability: “The value of the mean, and of refusing to push political issues to an extreme… [and] The cardinal importance of educating citizens to live in and act the spirit of a constitution.”15 Once approved the constitution becomes a kind of transcendent law in the sense of constraining legislative laws from wandering outside the framework of what is dictated by the constitution. Laws must be in accord with the constitution.16 Aristotle says that where the laws are not sovereign there is no constitution.17 Justice is embodied in law, and law represents reason without passion.18 So, the constitution presents the framework for justice, which is the whole of goodness.19 The constitution as a whole circumscribes how people are to be treated, to what authorities they submit to, the value of education, morals, and the means to moral goodness. There are good constitutions and bad constitutions. Good constitutions advance the common interests of the citizens.20 Bad or defective constitutions advance the interests of the rulers. Aristotle cites three forms of government: government by one, a few, or many. Acceptable forms of government with good constitutions are monarchy, aristocracy, and polity. Bad forms are tyranny, oligarchy, and democracy. Without a proper constitution, the tyrant can rule by whim or passion; the wealthy can rule in their own interest, especially property matters, and the poor masses will not understand the importance of wealth and the responsibilities and philanthropy of wealthy citizens. There is an argument that can be extrapolated from Aristotle’s comments that seems powerful in establishing what he takes to be the best form of government—polity. The very idea of government is problematic, for if there is government there are rulers and ruled. Since rulers can compel the ruled, there is built-in inequity, and the door is open for rule by whim, passion, or self-interests of the rulers. The only way to repair this 14  Ibid., 230. In the new, updated Constitution inscribed in this book, 70% of citizens or more must favor by vote constitutional change in a national referendum. 15  Ibid., 230. 16  Ibid., 127. 17  Ibid., 169. 18  Ibid., 146. 19  Ibid., 137 and note. 20  Nicomachean Ethics, XVIII, 10. 1160 a-b.

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deficiency is to introduce a “third,” which is a constitution. A constitution puts rulers and ruled under the same framework of law. It equalizes rulers and ruled.21 As noted above, equality in enjoying the benefits of constitutional government is the common interest of the citizens. What does government by many with a good constitution look like? It is a highlight of Aristotle’s analysis of constitutions that a constitution built around the middle class is the best form of polity. Aristotle states that, “… a legislator should always make the members of the middle class partners in any constitution which he establishes.”22 Virtue or excellence (arete) is always a mean between extremes of excess and deficiency, as recklessness and cowardice are extremes with courage as a mean between these. The middle class is the mean between wealth and poverty: Goodness itself consists in a mean; and in any state the middle class is a mean between the rich and the poor. The middle class is free from the ambition of the rich and the pettiness of the poor; it is a natural link which helps to ensure political cohesion. We may thus conclude that a constitution based on this class—i.e., ‘polity,’ –is most likely to be generally beneficial. It will be free from factions and will be likely to be stable.23

Aristotle claims that middle class men are more likely to listen to reason since they are not puffed up about themselves, as are the overly strong, the overly handsome, the overly noble, or the overly wealthy.24 This class does not covet power.25 The middle class can better understand the interests of the wealthy since they are closer to them than the poor. Likewise, they can better understand the interests of the poor, being closer to this group than the wealthy. Being in the middle, this class can function as the mediator of differences between the wealthy and the poor. It is the middle class which “saves states” from revolution and violent uprisings. Another striking contention from Aristotle is that a strong middle class in the legislature or deliberative body will create in that body an array of talents and virtues (and as we Americans say, points of view), far exceeding the talents and

 PA, 103.  Ibid., 185. 23  Ibid., 179. 24  Ibid., 181. 25  Ibid., 182. 21 22

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virtues of any person or group.26 The legislature will form a kind of super person: There is this to be said for the Many. Each of them by himself may not be of a good quality; but when they all come together it is possible that they may surpass—collectively and as a body, although not individually—the quality of the few best. Feasts to which many contribute may excel those provided at one man’s expense. In the same way, when there are many who contribute to the process of deliberation, each can bring his share of goodness and moral prudence; and when all meet together the people may thus become something in the nature of a single person, who—as he has many feet, many hands and many senses—may also have many qualities of character and intelligence.27

Aristotle’s commentators say that he favored a mixed polity inclusive of persons of different economic status. It is a merit of mixed polity that wealthy persons serve in the legislature, for they can serve the state by their wealth. Wealth often brings with it men who have culture and good breeding. They are less likely to commit crimes, for they are secure in property and sophistication.28 (PA, 166, 174–176) Contrary to many commentators, Aristotle’s mixture of democracy and oligarchy exist in a matrix of a pluralistic conception of goodness, as noted in the quotation above. Merit comes from the varieties of goodness of the many combined. Aristotle addresses the causes of constitutional instability or defectiveness. Substantial inequality is the leading cause of constitutional collapse.29 Legislative advance of some person or group “out of all proportion to others” must be prohibited by a constitution, and if someone “gains such superiority by strength of wealth or connexions … [he] should be removed from [the state] [and] sent out of the country.”30 Aristotle claims that “the most important rule of all, in all types of constitution is that provisions 26  PA, 123ff. This contention will be taken up below. Our House of Representatives and Senate are stocked with attorneys, who do not know any more than other professionals and workers what is good for society. Some are quite sleazy; others informed and ethical. Their talent is writing laws. They can drop their law practice if elected, and if they are not re-­ elected, they can go right back to their law firm and practice. Many other talented people cannot just go back to their jobs and professions in this way. 27  Ibid, 123 and 142. 28  Ibid., 166, 174–176. 29  Ibid., 205. 30  Ibid., 227.

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should be made…not only by law, but also by the general system of economy…to prevent the magistrate [=the executive] from being able to use their office for their own gain.”31 Other causes of social disturbance due to constitutional defectiveness would be large scale contempt, insolence, fear, greed, or the quest for honor.32 As cited above, a stable constitution is the result of the majority of citizens favoring the constitution, avoiding extremes in dealing with political issues, and above all, educating citizens on how to live and act in the spirit of the constitution. What is spirit? Citing Plato, it “is the faculty of our soul which issues in love and friendship … [and] a feeling for freedom.”33 (PA, 296–297). A constitution must delineate all the various elements necessary for the existence of the polis. It should recognize that the well-being of the state requires self-sufficiency. Through the legislative or deliberative branch of government, it must address the public concerns of farmers who provide food; craftsmen and mechanics and their tools, property owners, ecclesiastics, and the military. Not mentioned in this list but elsewhere in Aristotle’s writings are entertainers, rhapsodes, musicians, poets, actors, and physicians who heal the sick and provide relief from pain, and teachers. A good constitution will be so designed to encourage “men of good will, feeling and good sense to undertake the duty of helping the poor to find occupations—enabling them to make a start.”34 Aristotle cites the crucial need for clean water: “…the inhabitants should have the use of good of good water. This is a matter which ought not to be treated lightly.”35 Aristotle regarded education as of central importance for the good state, for a state is good by virtue of its citizens being good. Because of this, “…the legislator should make the education of the young his chief and foremost concern.”36 This must begin with little children. In a striking passage of the Nicomachean Ethics Aristotle says, “It makes no small difference, then, whether we form habits of one kind or of another from our 31  Ibid., 228. Today members of Congress freely engage in stock market transactions with knowledge of the market unavailable to ordinary citizens. The most egregious example of executive profiting is that of former President Trump. 32  PA, 207. 33  Ibid., 296–297. 34  Barker notes that Athens had a program for the assistance of the poor. 35  PA, 307. The new, updated Constitution establishes government overseeing of the basic goods necessary for a decent life. Water is the first of these goods, and its availability and cleanliness are now threatened worldwide. 36  Ibid., 332 and 313.

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very youth; it makes a very great difference, or rather all the difference.”37 The education of children is the task of creating in them good habits. Two different paths are to be taken in creating these habits. One is compelling the child to behave in a morally desirable way long before the child can understand the importance of behaving in this way. “…men become builders by building and lyre-players by playing the lyre; so too we become just by doing just acts, temperate by doing temperate acts, brave by doing brave acts.” On the other hand, there are excellences or virtues which come from instruction. These come from parents and teachers, but especially teachers. Aristotle says that education must be the same for all, and it should be public.38 Education is what binds the community together, making it a unity.39 Although how parents treat their children is a moral act, parents alone are not sufficient for the education of children. Career instructors will above all else teach the child to reason. Reason, or rather the ability to reason along the lines of what is excellent, is what is distinctive about persons. So, the constitution must indicate the importance of education, who is to be educated and how. It must regulate education by law.40 What are the merits as well as the shortcoming or warranted criticisms of Aristotle’s account of constitutions? As for merits, he argues persuasively that good government requires a constitution, and that a constitution is the framework for circumscribing positive law. He goes beyond many contemporary writers in spelling out the aim or telos of having a state in the first place. The telos is happiness, and it is not pleasure but flourishing in the process of acquiring human excellences. The Founding Fathers did not spell out what they meant by happiness, but it appears to implicitly involve free citizens making a life for themselves. Their shortcoming was not weaving into the fabric of American life greater emphasis on the moral dimension of happiness. As it is, the U. S. Constitution contains a truncated statement of rights, no bill of goods for a decent life, and no statement of the duties and responsibilities of American citizens. So, Aristotle has it a little better in this regard.41  Nicomachean Ethics, 29; Book II, 1.  In the new, updated Constitution, public education is free from pre-Kindergarten through community or junior college. 39  PA, 51. 40  Ibid., 332, 333. 41  Aristotle does not have a doctrine of moral duties. Rather, there are the excellences like courage, temperance, and the other means between extremes, along with the good of property, that make good citizens. 37 38

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Obvious flaws in Aristotle’s account of good constitutions are first, that his constitutional polity does not ban slavery, and second, that his account does not even take up the question of whether women should serve in government. Both slavery and the oppression of women were common in the ancient world and remained so far into the future. One may certainly take issue with Jonathan Barnes’ harsh criticism of Aristotle. Barnes claims that Aristotle’s theory of constitutional polity allows for a state which is repressive, with overtones of totalitarianism: Aristotle describes in considerable detail the various ways in which the State should regulate the lives of its citizens. Each regulation, however benevolent in purpose, is a curtailment of liberty—and in Aristotle’s claim that the citizens ‘all belong to the State’ the reader may detect the infant voice of totalitarianism. If Aristotle loved liberty, he did not love it enough. His State is highly authoritarian.42

Barnes asks, “What has gone wrong?” His answer is that Aristotle from the outset gives a positive function to the state, when, on Barnes’ view, “Lovers of liberty will prefer to assign a negative function to the State and to regard it rather as a defence and protection against Evil.”43 If the State has only a negative function, then the Constitution of that State will be reduced to distribution of offices and the nature of authority for each office holder. If the State has a positive function, this will be circumscribed by the Constitution. Is requiring children in the State to have a public education an intrusion upon liberty? Is it an intrusion upon liberty that children be taught to behave in such a way as to become just, temperate, courageous as adults? Barnes’ “Lovers of liberty” will apparently have their freedom in a society of ignorant citizens whose character is corrupted by too much freedom. When the actions of people are based on ignorance and harm the basic moral fabric of society, that is not freedom but licentiousness. So, Barnes’ criticism is untenable, a bit of conservative rhetoric.

 Jonathan Barnes, Aristotle (Oxford and New York: Oxford University Press, 1982), 82.  Ibid., 83.

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John Adams’ Examination of Ancient Philosophers and Historians On the eve of the Constitutional Convention, John Adams, at that time American envoy to England and later the second President of the United States, published A Defence of the Constitutions of Government of the United States of America, against the attack of M. Turgot, in his letter to Dr. Price 23 March 1778.44 In what was to become a three-volume work, volume I is of great interest for it contains a philosophical and historical defense of America’s newly independent country and its proposals for a constitution. A Defence … consists of fifty-five letters written to his son-in-law, William Stephens Smith. In the letters, Adams replies to the criticisms of the American scheme of government by M. Turgot, a French economist and politician. Turgot criticized the existence of America’s many state constitutions which, he claimed, do not form a unified nation, and moreover the Americans were just imitating the British in their proposals for a bicameral legislature. In addition to Adams’ reply to Turgot, another target of his first volume was the unicameral movement stirring among State delegates, including Benjamin Franklin. A Defence…consists of fifty-five letters written to his son-in-law from 4 October 1786 to 21 December 1786. The book was widely read at the Constitutional Convention. Its impact on delegates has been described by scholars as “profound.”45 Adam’s biographer, Page Smith, states that “By the standards of its day it was a best seller…widely read and hotly debated.”46 Thomas Jefferson wrote to John Adams that the book’s “learning and its good sense will I hope make it an institute for our politicians.” Another Convention member, Benjamin Rush, said the book would result in “our adopting a vigorous and compounded federal legislature.”47 44  New York: Da Capo Press, 1971. An unabridged reproduction of London 1st edition of 1787 (London: C. Dilly, in the Poultry). Hereafter referred to as A Defence. 45  Andrew J.  Reck, “The Philosophical Background of the American Constitution(s),” Royal Institute of Philosophy Supplements, Volume 19: American Philosophy, March 1985, 273–293. 46  Page Smith, John Adams, Volume 2 (New York: Doubleday and Company, Inc., 1962), 700. Thomas Jefferson said that it contained “learning and good sense…an institute for our politicians.” Quoted by Page Smith, Vol. 2, 699. 47  Cited by Cappon, 167. Rush to Richard Price, June 2, 1787.

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Adams reviewed philosophical theories of government from the ancient world into the 1700s, in order to show that the Americans were not fumbling amateurs in their attempt to create a government. Moreover, he reviewed historic constitutions with, in most instances, reasons for their failure. He wrote that he wanted to adopt the advantages, and reject the inconveniences of all from his historical and philosophical investigation.48 Of singular importance at the Constitutional Convention were the ancient philosophers, historians, and lawgivers. As Gilbert Chinard puts it: There were few occasions when the ancient writers were not called upon to provide precedents and illustrations for the different speakers… Ancient precedents were mentioned again and again in the fierce discussion which raged around the sovereignty of the States of the Union. Hamilton made an impassioned plea for a strong executive and a strong federal bond, and pointed out that the Greek confederacies were of short duration because of an inherent weakness….49

Cicero  The first philosopher Adams discussed is Cicero (106–43 B.C.E.). Adams’ praise for the Roman thinker could not be higher:  As all the ages of the world have not produced a greater statesman and philosopher than Cicero, his authority should be given great weight. His decided opinion in favor [of] three branches is founded on a reason that is unchangeable; the laws, which are the only possible rule, measure, and security of justice, can be sure of protection, for any course of time, in no other form of government; and the very name of a republic implies that the property of the people should be represented in the legislature, and decide the rule of justice.50

Drawing up Cicero’s De Re Publica, Adams noted the several senses of “republic.” In one sense “republic” is literally “the thing of the people” or commonwealth. In another sense, a republic is the property of the people, “an assemblage of people in large numbers associated in an agreement 48  A Defence…, “Preface,” xxv. Adams’ discussions of Geneva, Poland, Venice, Athens, Rome and other states and cities will not be examined here, only constitutional thinkers. 49  Gilbert Chinard, “Polybius and the American Constitution,” Journal of the History of Ideas, Vol. 1, No. 1 (Jan., 1940), pp. 46–47. Chinard cites Benjamin Franklin’s complaint that days of the Convention had become a discussion of the classical world. 48–49. 50  A Defence…, XXI.  See the interesting article by Paul Joseph Cornish, “John Adams, Cicero and the Traditions of Republicanism,” Michigan Academician (2012) 41 (1): 22–37.

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with respect to justice and a partnership for the common good.”51 Another meaning is a government of laws not of men. Adams approved of Cicero’s thesis that the ideal constitution for a republic will be a mixture of monarchy, aristocracy, and democracy. Plato  Plato was an object of admiration by Adams. The Republic correctly affirms that the goal of government is happiness for all. Education is compulsory and public and supplements the laws of the state in producing the virtues in its citizens. Citizens are ranked according to merit, and those excelling would rise to the top and become leaders. Adams noted Plato’s correlation of degenerate forms of government with degeneracy in the souls of men. He asserted that Plato ‘has not exaggerated in his description of the mutability in the character of men, and the forms of government.’52 Adams cites Plato’s remarkable characterization of democracy as a degenerate form of government. In a state governed by the people, people of wealth are seen as “good for nothing, bred up on the shade, swollen with flesh and panting for breath,”53 in stark contrast with the “robust fellow, poor and sunburnt.” In the democratic state, there is liberty to do as one likes. People of all kinds will appear, and the state will be “variegated like a robe with all kinds of flowers.”54 The souls of youth are “evacuated of noble learning and pursuit, and of true reasoning, which are the best watchmen and guardians in the understanding of men beloved of the gods.” Democrats believe “Insolence … [is] education; anarchy, liberty; luxury, magnificence; and impudence, manhood. In this a youth bred up with the necessary desires changes into licentiousness.”55 From this and Plato’s other government critiques little wonder that Adams thought Plato to have excelled in correlating types of people with types of government, and in general thought the study of the ancients to assist in knowledge of ourselves. Adams likened the study of ancient Greece to “an

51  Cicero, De Re Publica, De Legibus. Translated by C.  W. Keyes (Cambridge: Harvard University Press, 1977), 65. 52  A Defence…, 210. 53  Ibid., 195. 54  Ibid. 55  Ibid., 198.

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octagonal apartment with a full-length mirror on every side, and another on the ceiling,” in which we see ourselves from every angle.56 Aristotle (384–322 B.C.E)  Adams’ comments about Aristotle’s constitutionalism are scattered about, so he fails to give the Stagirite the attention he deserves. He does rank Aristotle alongside Plato, Cicero and Locke, among his constitutional heroes. And he recognizes that Aristotle holds that the sine qua non of acceptable government is the sovereignty of laws, not of men:  Aristotle says, that “a government where the laws alone should prevail, would be the kingdom of God.” This indeed shows that this great philosopher had much admiration of such a government…. Aristotle says too, in another place, “Order is law, and it is more proper that law should govern, than any one of the citizens; upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians and the servants of the laws.”57

Adams also applauds Aristotle’s insistence that there are limits to the wealth possessed by individuals—Adams calls it balance of property. Too great a disparity can result in sedition.58 Adams considered Aristotle’s form of constitutionalism to be a mixture of oligarchy and democracy, resulting in an aristocracy with a dominant democratic leaning: The mixture of oligarchy and democracy, in which the former was superior, yet the latter sufficed to secure liberty and equal right to the people, might, according to Aristotle, be called aristocracy. That mixture where the democratic power prevailed, yet was in some degree balanced by authority lodged in steadier hands, is distinguished by that great author by the name of polity.59

Aristotle’s analysis of governments reminds the reader that, once again, as his teacher Plato had written, governments are mutable, and the causes are discernible.60  Ibid.  John Adams, Works, IV, 252. 58  Ibid., 271. 59  Ibid., 301. 60  John Adams, Works, 323. 56 57

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Polybius  Adams considered the ancient historian Polybius to have established an all-important component of good constitutional government, the system of checks and balances between the kingly, the aristocratic, and the democratic. In his Histories (6.10) Polybius dwells on the achievements of the Sparta lawgiver, Lycurgus. Lycurgus perspicuously saw that simple forms of government degenerate and become unstable due to the vice that accompanies each:  For as rust is the natural bane of iron, and worms of wood, by which they are sure to be destroyed, so there is a certain vice implanted by the hand of nature in every simple form of government. … the vice of kingly government is monarchy, that of aristocracy, oligarchy. democracy rage and violence…to avoid [these]…Lycurgus united in one all the advantages of the best government, to the end that no branch of it, by swelling beyond its bounds might degenerate…while each was mutually acted upon by opposite power, no one part might outweigh the rest.61

Polybius explains that “…the commonwealth, being equally poised and balanced, like a ship or a waggon, acted upon by contrary powers, might long remain in the same situation.”62 Adams was impressed by the recorded longevity of Lycurgus’ system, for it “preserved the Lacedemonians in liberty longer than another people we have heard of ever enjoyed it.”63 Although Montesquieu was cited more than anyone else in the checks and balance deliberations by the Founding Fathers, this system was first set out by Lycurgus and promoted by Polybius in his Histories, and the delegates at the Convention were aware of this, thanks to Adams’ A Defence. Today, a bas-relief of Lycurgus hangs on the wall in the Chamber of the House of Representatives.

 A Defence, 181.  Ibid., 170. Benjamin Franklin used this ship/wagon analogy at the 1776 Convention: “in 1776, in the convention of Pennsylvania when speaking on ‘a motion to add’ another assembly, under the name of a senate or council,” the Doctor has said that: “two assemblies appeared to him like the practice he had somewhere seen, of certain wagoners, who, when about to descend a steep hill with a heavy load, if they had four cattle, took off one pair from before, and chaining them to the hinder part of the wagon drove them down hill; while the pair before and the weight of the load, overbalancing the strength of those behind, drew them slowly and moderately down the hill.” Quoted by Gilbert Chinard, from Works of John Adams, IV, 257. 63  Ibid., 171. 61 62

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John Adams’ Survey of Modern Thinkers Niccolò Machiavelli (1469–1527)  Adams agreed with Machiavelli’s claim that people are by nature bad. Citing the Prince, those who would create a government will take it as a first principle that “men are bad by nature; that they will not fail to show that natural depravity of heart whenever they have a fair opportunity.”64 Adams, along with many of the other Founding Fathers, concurred with Machiavelli but through the lens of the Calvinist doctrine of the Fall of man.  Adams criticized Machiavelli for not recognizing that the chaos of politics and law in Florence was due to their lack of a mixed, balanced constitution. Once again, the importance of the ancient writers is manifest in Adams’ interpretation of Machiavelli: “Machievel was the first who revived the ancient politics; the best part of his writings he translated almost literally from Plato and Aristotle, without acknowledging the obligation.” James Harrington (1611–1677) One book widely read in the colonial period and by the Founders was James Harrington’s The Commonwealth of Oceana (1656). His discussion of good government was used as a model for the constitutions of several states, and as J.  G. A.  Pocock described him, “England’s premier civic humanist and Machiavellian.”65  One contribution made by Harrington in Adams’ quest for the best constitutional government is Harrington’s distinction between governments de jure and governments de facto. The former is “…an art, whereby a civil society of men is instituted and preserved upon the foundation of common interest; or…an empire of laws and not of men.”66 De facto governments rule by one or a few men according to their private interests. Interests become a central category in discussions in the Federalist papers and at the Constitutional Convention. A second contribution is Harrington’s distinction between principles of authority and principles of power. Principles of authority are ethical in

 John Adams, Works, IV, 255.  J.  G.A.  Pocock, The Political Works of James Harrington (Cambridge: Cambridge University Press, 1977), 15. 66  A Defence, 126. 64 65

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nature—the virtues. Principles of power are “goods of fortune such as riches, extraction, knowledge and reputation.”67 The essence of power resides in property, especially land: “empire follows the balance of property.”68 Harrington likens the discovery of the power of property to the discovery of blood circulation by Harvey or the discovery of how to make eyeglasses. He notes that if there is a king, the king may own all land. Government of the few may find property “over-­ balanced” in their favor. But “if the whole people be landlords, or hold the lands so divided among them, that no one man, or number of men within the compass of the few, or aristocracy, over-balance them, the empire is a commonwealth.”69 Adams boasts that ‘In America, the balance is nine-­ tenths on the side of the people: indeed there is but one order; and our senators have influence chiefly by the principles of authority, and very little by those of power.’70 Algernon Sidney (1623–1683) Sidney was a defender of republicanism and liberty, and expressed his views in an unpublished document, Discourses concerning Government. His condemnation of absolute monarchies as the worst of all governments resulted in his being charged with treason, for which he was executed. His posthumously published Discourses (1698), like Harrington’s Oceana was widely read by colonials and the Founding Fathers. Adams cites Sidney’s definition of liberty as being independent of another’s will. Many quotations from Sidney’s book are criticisms of democracy. One criticism is that democracies make more mistakes than aristocracies. Already determined by Adams’ examination of other thinkers, but confirmed by Sidney’s Discourses, is the view that “The best governments of the world have been composed of monarchy, aristocracy, and democracy.”71  John Locke (1632–1704)  John Locke was widely influential in the construction of State constitutions, and most famously (but not certainly), his role in Jefferson’s writing of the Declaration of Independence. Locke is considered to be the father of classical liberalism, and the first in a line of  A Defence, 158.  A Defence, 159. 69  A Defence, 161. 70  A Defence, 168–169. 71  A Defence, 148. 67 68

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British empiricists in epistemology. As Andrew J. Reck points out, Adams harsh criticism of Locke is unexpected given Locke’s influence and fame.72 Reck points out that Locke’s influence had receded and was replaced by Montesquieu as the star philosopher in the constitutional discussions. Adams, while recognizing Locke’s profundity in establishing natural rights, states:  A philosopher…may pursue his own enquiries into metaphysics to any length you please, may enter into the inmost recesses of the human mind, and make the noblest discoveries for the benefit of his species; nay, he may defend the principles of liberty and the rights of mankind, with great abilities and success; and, after all, when called upon to produce a plan of legislation, he may astonish the world with a signal absurdity.73

Locke, for example, had framed a plan of governance for Carolina which turned everything over to eight proprietors, creating an oligarchy with three orders of nobility. “Who,” Adams asked, “did this legislator think would live under this government?” Montesquieu (1689–1755) Montesquieu wins first prize as the philosopher most frequently cited in constitutional discussions by the Americans. His Spirit of the Laws (1748) contains several tenets which were eventually adopted by Americans. First and famously, his doctrine of the separation of powers—executive, legislative, and judicial—was adopted, though, as already noted, this was anticipated by the ancients. To fuse together any of these will result in tyranny.  Montesquieu saw that government must provide for the sense of security on the part of the citizens: “The political liberty of the citizen, is a tranquility of mind, arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted that one citizen need not be afraid of another citizen.”74 Another important contribution from The Spirit of the Laws is the justification of representatives who do not represent the country as a whole, for they would be less attentive to needs and concerns outside their locale.  “The Philosophical Background of the American Constitution(s),” 284.  A Defence, 365. 74  A Defence, 153. Today, the toxic mixture of poverty, drugs, and guns create fear and harm “domestic tranquility.” 72 73

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Montesquieu held that “it is proper, that in every considerable place, a representatives should be elected by the inhabitants.”75 Adams considered the collective body of U. S. citizens to be “extremely unfit” to discuss the affairs of the country.76 Adams does not cite the innovative remarks about climate and geography in The Spirit of the Laws, nor are there references to Montesquieu’s humorous Persian Letters. David Hume (1711–1776)  Hume was another British thinker, who, like John Locke, was brilliant in many areas of philosophy and history, but terrible when it comes to designing constitutional government. Adams focused on Hume’s essay, “Idea of a Perfect Commonwealth.” (1777). Hume’s “speculations” about a perfect commonwealth center on counties. Those with a certain amount of capital (20 pounds a year for freeholders, 500 a year for households) may vote on county representatives, and these representatives elect county senators who go the capitol (in Hume’s scenario, London). Representatives and Senators do not receive a salary. The senators are the executive power, and decide what laws the representatives would consider. The county representatives in Hume’s scheme would number 10,000  in an area comprising Great Britain and Ireland. Each county would have one senator and ten magistrates. Adams describes Hume’s “Plan” as a complicated and cumbersome aristocracy. Senate laws would be sent to the county representatives or to the magistrates. If sent to the magistrates, the participation of the people would be stifled. Adams states that to have every law debated in every county would create delays and confusions. Moreover, the Senate would be quasi-­ legislative and executive combined. Adams concludes his examination of Hume by stating that Americans in this age are too enlightened to be bubbled out of their liberties, even by such mighty names as Locke, Milton, Turgot or Hume; they know that popular elections of one essential branch of the legislature, frequently repeated, are the only possible method of forming a free constitution….they know…that when popular elections are given up, liberty and free government must be given up.77

 A Defence, 157.  A Defence, 157. 77  A Defence, 369. 75 76

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Richard Price (1723–1791)  Adams examined Price’s Observations on the Nature of Civil Liberty, the Principles of Government, and the Justice and Policy of the War with America (1776). Price was an Anglican minister who vigorously defended American independence through his writing and interactions with many of the Founders, including Washington and Jefferson. Observations…was widely read. Sixty thousand copies of this pamphlet were sold within days; and a cheap edition was issued which sold twice as many copies. Letter XXVI is devoted to Dr. Price, who distinguished types of liberty, “physical, moral, religious, and civil liberty,” defining the latter as “the power of civil society to govern itself, by its own discretion, or by laws of its own making, by the majority, in a collective body, or by fair representation…Legitimate government consists only in the dominion of equal laws, made with common consent….”78 Adams makes an all-important addition to Price’s definition “we must add to Dr. Price’s ideas of equal laws by common consent, this other—for the general interest, or the public good.” 79

Adams’ Surveys of Ancient and Modern Constitutionalism: Some Observations A number of questions and observations come to the forefront concerning the contributions made by various thinkers in Adams’ surveys, ancient and modern. First, Adams correctly credits Aristotle with emphasizing that good government is one in which laws are sovereign. Aristotle correctly holds that a constitution provides a framework for, and a constraint on, positive laws. Without a constitution, any law may be passed without compunction, for example, legally killing red-headed persons every Saturday. Bad governments either have no constitution, a weak constitution, or a corrupt constitution. A second contribution of Aristotle is that a state is a society of equals (for him excluding slaves and women). Everyone is subject to the laws and to the constitution, which is a kind of transcendent set of laws. There are two more sources of agreement between Adams and Aristotle. One is that is the telos of the State is happiness, a theme in Adams and many Founding Fathers. The other is that government should have a mixed constitution, one which incorporates elements of monarchy,

 A Defence, 122.  A Defence, 123.

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aristocracy, and democracy. The importance of a mixed constitution is also found in Cicero, Lycurgus, and Sidney. Adams fails in this respect: he ignores or overlooks Aristotle’s emphasis on the necessity of a strong middle class. Without a strong middle class, a naked and stark opposition exists between the wealthy and the poor, and the stage is set for civil violence. Adams emphasizes aristocrats in government, believing them to be the bulwark of good judgment and culture. Who today, in 2022, are the aristocrats? So much of the lives of members of either House, the department heads, the Vice-president and President, is hidden from the public—their education, biographical information, taxes paid, contributions to the well-being of others, their positions on issues that they often try to conceal. The new, updated Constitution corrects this. Having noted these sources of agreement, one must ask, how, today in 2023, the American Constitution can be constructed to best serve the middle class? Can a constitution be designed to put middle class persons in government? Would they be required to meet certain standards in running for a federal election? Would there be a problem, say, for a schoolteacher or a small business owner giving up their careers to serve in government? If they were not re-elected, returning to their former careers might be problematic. The widespread election of attorneys to federal offices is Janus-faced. On the one hand, there is no reason to think that attorneys as a class of individuals know more about what is good for the country as whole than the class of nurses, teachers, small-town mayors, or business owners. On the other hand, attorneys are needed for their expertise in framing the technicalities of proposed pieces of legislation. Moreover, unlike many they can more readily return to their careers as attorneys if they are not re-elected. Adams agrees with Machiavelli that people are by nature bad. But this badness consists in weakness, particularly in controlling the passions, that is, desires: …the first inquiry should be, what kind of beings men are? You and I admire the fable of Tristram Shandy more than the fable of the Bees and agree with Butler rather than Hobbes. It is weakness rather than wickedness, which renders men unfit to be trusted with unlimited power. The passions are all unlimited; nature has left them so.80  A Defence, 129.

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The aristocratic passions are particularly dangerous. Love of gold, love of praise, and ambition, grow and grow. In a comment that sounds like Spinoza, the only thing that can stop this growth is a passion the other way: “Men should endeavour at a balance of affections and appetites, under the monarchy of reason and conscience, within, as well as at a balance of power without.”81 Throughout A Defence. … Adams is replying to criticisms of American nation-building from the Frenchman, M. Turgot. And one central issue was the necessity of a bicameral legislature. From his examination of previous thinkers, Adams accepted the view that the government should have top tier institutions which match the mixed government triad of monarchy, oligarchy or aristocracy, and democracy. So, the executive will be a President, stripped of monarchical trappings and limitless powers, a legislature of the people, a House of Representatives, and a House of aristocrats and oligarchs, a Senate. In a hindsight reflection on his survey of ancient and modern constitutional claims, Adams is brimming over with pride at the American accomplishment: …let us compare every constitution we have seen, with those of the United States of America, and we shall have no reason to blush for our country; on the contrary, we shall feel the strongest motives to fall upon our knees, in gratitude to heaven for having been graciously pleased to give us birth and education in that country, and for having destined us to live under her laws!82

 A Defence, 130.  A Defence, 95.

81 82

CHAPTER 5

The Federalist Papers: Constitutional Structures

Is it not the glory of the people of America, that, while they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation and the lessons of their own experience? (Federalist No. 14, 78–79) James Madison

The Federalist papers discuss a wide range of questions confronting the creators of the American Constitution. Virtually concurrent with these papers were behind the scenes discussions in the correspondence of the Founders. Voluminous correspondence between Thomas Jefferson and James Madison will be the subject of Chap. 7 below. This chapter will survey The Federalist papers only on issues concerning Constitutional structure, the relation between States and the national government, and the distribution of offices and responsibilities therein. Chapter 6 below will discuss a range of specific topics in various writings of the Founders, including thoughts of these matters in the Federalist papers. These specific topics include a Bill of Rights, education, elections, freedom of the press, militias, and religious freedom. Taken together, Adams’ A Defence, the Federalist papers, and the Jefferson-Madison correspondence open the reader’s eyes to the amazing spectacle of the Founders creating a nation © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_5

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from scratch. It is of no small interest to see the extent to which they were under the spell of the Enlightenment.

The Federalist Papers The Federalist papers consist of eighty-five letters, addressed to the citizens of New York, and published in New York newspapers, from October 27, 1787, to May 28, 1788. The authors are Alexander Hamilton, James Madison, and John Jay, but the papers were signed “Publius” for reasons of anonymity. Of the total, Hamilton wrote fifty-one of the papers, Madison twenty-nine, and John Jay five. Each paper is given a subject title, for example, “Real Character of the Executive,” “Senate,” etc. Today the Federalist papers are used to illuminate the background to the Constitution and are used by some to interpret the Founders’ intentions behind the various constitutional elements. Alexander Hamilton opens the discussion of the proposed Constitution for the United States of America, recognizing that, not only is that a profound undertaking for America, but also has repercussions for the estimate of human nature: it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.1

Almost immediately, Hamilton cites the reluctance of State governments, their governors, and legislators, to embrace the union lest they lose their own power and emoluments. This becomes not only an obstacle to framing a Constitutional union, but, as will be cited again and again in this chapter, States are seen as a threat by Federalist writers even after a constitutional union has been established. Federalist papers nos. 2–5 were written by John Jay and contain arguments that a strong central government is necessary for the security of the individual States and their populations against threats or attacks by foreign governments, and importantly, from dissensions between states. Therefore, with good reason the States can support the Constitution. 1

 Federalist No. 1, 37.

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In Federalist No. 9 Hamilton describes the proposed federal system as a confederacy of States, as opposed to a consolidation of states. In a Confederacy, the States are constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portion of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.2

James Madison wrote paper No. 10, which is surely one of the most famous of the eighty-five papers. In it, Madison discusses the causes of factions which can tear a government apart, and the strategies for overcoming the effects of their mischief.3 Men being what they are, there is no cure for the causes of factions, but the effects can be controlled by republican government. The larger the number of representatives, the lesser is the chance of a few dominating the others. The number of representatives “must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number in order to guard against the confusion of a multitude.”4 Democracy will only work with a small population, whereas republican government with its representatives can accommodate a large population over a vast area. Madison embraces the idea that the people will elect “a chosen body of citizens, whose wisdom may best discern the true interest of the country.” Without an argument justifying this claim, he believes that the greater the number of voters the “more difficult for unworthy candidates to practice with success the vicious acts by which elections are too often carried.” He believes that voters will choose men of “the most attractive merit and the most diffusive and established characters.”5 Federalist papers nos. 11–13 by Hamilton discuss trade and the economy of the day and need not detain us.

 Federalist, No. 9, 62.  Federalist No. 10, 64. “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” 4  Federalist No. 10, 66. 5  Ibid. 2 3

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In Federalist No. 14 Madison makes the important point that the Federal government is restricted to the concerns of all citizens. If the States were annihilated, they would have to be restored for the Federal government to function properly. The argument is that there are local concerns which the Federal government is incapable of treating properly. Universalism and localism are conjointly necessary for good government. In Federalist No. 15 Hamilton notes that without some sanction or punishment, law, (and it may be added, the Articles of the Constitution) becomes mere “advice or recommendation.”6 Hamilton repeats his concern in No. 1 and that of Madison in No. 14 concerning State governments. There are concerns “which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction,” that is, the federal government. There is a danger, he says, not that the Federal government will encroach upon State governments, but it is “far more easier for the State governments to encroach upon the national authorities.”7 In Federalist nos. 23 and 28, Hamilton lists some of the functions of union, one of which is preservation of public peace “against convulsions” as well as external attacks. Insurrection is taken up again in No. 28. It must be repelled using force proportionate to the “mischief” caused. “An insurrection, whatever may be the immediate cause, eventually endangers all government.”8 Federalist nos. 30–36 concern the power of the Federal government to tax. That need not concern us here. Madison wrote Federalist No. 37, an essay which has some significant content. It begins by acknowledging “The novelty of the undertaking” in creating a government from scratch. Echoing Hamilton’s insistence on an “energetic constitution” that makes good things happen, Madison states, “Energy in government is essential to the security against external and internal danger, and to that prompt and salutary execution of the laws which enter into the very definition of good government.”9 On a different theme, Madison says that, just as no one has yet clearly differentiated between the organic and the inorganic, so no one “has been able to

 Federalist No. 15, 82.  Federalist No. 17, 87. 8  Federalist No. 28, 122. 9  Federalist No. 37, 150; Hamilton on an energetic constitution, Federalist No. 23, 107. 6 7

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discriminate and define with sufficient certainty, its three great provinces the legislative, executive and judiciary” or their powers. There are multiple difficulties in creating a new government, and those at the Convention must have experienced all of them. In addition to the novelty of the attempt, there are vague- nesses attached to making laws. First, objects, whatever they might be, are complex, and the human mind can only imperfectly grasp these objects. Another difficulty is the fuzziness of language. Language is the necessary medium by which a constitution is framed. Even if God came down from heaven and addressed us in our own tongue, Madison says, the meaning of God’s words would be “dim and doubtful.” These problems make it difficult to delineate the boundary between the Federal and State governments, as well as the question of stability versus change in the time-in-office of Federal representatives. A short term in office keeps the representatives dependent on the people, yet stability requires a length of time in office. Madison’s No. 38 continues difficulties in framing a constitution. He lists objections that have been circulating. These are: (1) The proposed Constitution is not a confederation of States but a government over individuals; (2) There is no Bill of Rights; (3) Bills of Rights should be reserved for the States to create; (4) There is a dangerous inequality in the House of Representatives, since population size determines the number of representatives; (5) The executive powers tend toward monarchy; (6) The three branches are so intermixed so as to contradict all ideas of regular government; (7) Impeachment properly belongs to the judiciary. He lets these objections stand, responding that the new Constitution does not have the defects of the Articles of Confederation which it is to be exchanged for. He states that, “It is not necessary that the proposed Constitution should be perfect; it is sufficient that the … [Articles of Confederation] is more imperfect.” By analogy, “No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it.”10 Over the course of the eighty-five Federalist papers, these objections are answered. In Federalist No. 39 Madison offers a definition of what a republic is. It is “a government which derives all its powers directly or indirectly from the great body of the people and is administered by persons holding their office … for a limited period, or during good behavior.”11  Federalist No. 38, 150.  Federalist No. 39, 158. The “or during good behavior” refers to Supreme Court Justices without a term limit. 10 11

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If the powers in the society are derived from the States, then the government is federal. If they are derived from the majority of people, then the government is national. Therefore, Madison says, the proposed United States Constitution “is neither wholly federal nor wholly national.”12 Federalist No. 40 is meant by Madison to squelch the view of some delegates that the Articles of Confederation can be modified successfully and therefore a brand-new Constitution is unnecessary. Madison states that it cannot be altered in such a way as to “ mold them into a national and adequate government.”13 The Confederation articles are “feeble” and “insufficient.” In Federalist nos. 41, 42, and 43 Madison sets out the powers of the Federal government. These include regulating the militia, borrowing money, declaring war, making treatises and other foreign affairs, and surprisingly to some readers, the abolition of the importation of slaves (meant to take effect in 1808). No. 42 cites as Federal powers the regulation of “harmony and proper intercourse among the States,” including commerce, the value of money, weights and measures, uniform naturalization, post offices and roads, and bankruptcy.14 Federalist No. 43 considers another class of national powers. The promotion and progress of the arts and sciences are best achieved when the authors and discoverers have exclusive rights to their works. Additional national powers not included in the Articles of Confederation are the question of new states and the strict requirement that States have a republican form of government. No new States shall be formed without the permission of the federal government and any affected States. The Federal government shall protect each State against invasion and “against domestic violence.”15 What if there is an insurrection pervading all the States and comprising superior forces? Madison says there is no cure for this calamity, but the Constitution reduces the probability of this event. Violence in one State can be quelled by other States. Madison notes that violence against one State is violence against the Constitution since States and the national government are intertwined. He reiterates what he has said previously that

 Ibid., 161.  Federalist No. 40, 164. 14  Federalist No. 42, 173. 15  Federalist No. 43, 177. 12 13

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the proposed Constitution rests entirely on the “authority of the people alone.”16 Federalist No. 44 by Madison describes the States as constituents and essential parts of the federal government, but the Federal government is not a constituent of the States. It is clear from what Madison says that the Constitution is a kind of transcendent law, the Union’s supreme entity: The Constitution and the laws of the United States which shall be made in pursuance thereof, and all treatises made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby.17

He affirms that the election of the President and the Senators are to be made by State legislators. From previous comments, the election of the President is to be made by the Electors chosen by State legislators. However, State legislators today do not choose Senators, but rather they are elected by popular vote in each State. Madison’s No. 45 sets out happiness as the telos of the state. He says that if a Union should prevent this, it would be better to abolish the Union; If the sovereignty of the States should prevent this, it would be better to abolish the States.18 The other major point made in No. 45 is the claim that under the proposed Constitution the powers of the federal government are few and defined. The powers of the States are numerous and indefinite in number, and concern the lives, liberties, and property of their citizens, with the aim of producing order, securing property, making improvements, and engendering prosperity. Comments on the States are continued in No. 46. It rarely happens that there is a bias on the part of State governments in favor of the federal government. People in each State are predisposed to favor their respective State over the federal government, because the local is where their prejudices, interests, and pursuits lie.19 Federalist nos. 47 and 48 discuss the tripartite form of government ensconced in the proposed Constitution. The President cannot make laws, but only has the power of “the negative” (veto). It is not true, Madison  Ibid., 180.  Federalist No. 44, 187. 18  Federalist No. 45, 186. 19  Federalist No. 46, 190. 16 17

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asserts, that the three great branches of government are entirely separate. They overlap. For example, the House of Representatives controls monetary matters for all branches. After citing Jefferson’s “Notes on the State of Virginia,” and the idea that the Constitution can only be altered by a two-thirds vote of Congress, Madison in Federalist No. 49 reaffirms that the people are the only legitimate fountain of power, and it is from them that the constitutional charter … is derived … it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.20

The present revised Constitution and the proposed referendum for changing it are based on comments like the above. Madison notes that there are possible difficulties which may arise in the idea that the people are the foundation of Constitutional government and are therefore the authoritative basis for “enlarging, diminishing,” or establishing a “new model” for the Constitution. Frequent appeals to constitutional change would deprive the Constitution of that “veneration which time bestows on every thing.” Frequent appeals would destabilize government. It would disturb public tranquility by having changes decided by the entire society. Madison concludes that revision “experiments are of too ticklish a nature to be unnecessarily multiplied.”21 Madison in No. 50 rejects the idea derived from Jefferson that there should be a fixed time in the future, at which point constitutional revision would take place. This, he says, would allow wrongdoers to freely continue their abuses before a future remedy could be applied. It would be a feeble restraint on abuses presently taking place. Wrongdoers would be aware that only at a distant point in time would reworking the law would take place.22

20  Federalist No. 49, 200. Jefferson held that nothing is perpetual, not even constitutions; the earth belongs to the living, not the dead. The Constitution needs revision every nineteen or twenty years. Despite Madison’s criticisms of this claim, Jefferson continued to hold this view as late as 1816. See the letter from Jefferson to Samuel Kercheval, July 12, 1816. 21  Ibid., 201. 22  Federalist No. 50, 203.

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Madison’s No. 51 attempts to justify the tripartite branches. He begins by stating that good government requires not only that the government controls the governed, but that government controls itself as well. Madison cites five features of the proposed Constitution which prevent one branch from dominating or usurping another branch. First, each branch decides matters for itself; second, members of one branch cannot participate in the appointment of the members of another branch, with the exception that the President and Senate appoint members of the Supreme Court; third, one branch cannot affect the salaries of another; fourth, the legislative branch is bicameral, thereby preventing a kind of legislative tyranny that a unicameral body would create; a fifth feature is that the President cannot legislate, but only veto legislation that comes to his desk. The proposed Constitution will protect the weak and the strong and serve justice and the general good. What Madison assumes is that if one party controls the House of Representatives, and the other party controls the Senate, then reason will dictate that negotiation and compromise take place. But he fails to consider the possibility that each opposing party is unyielding and adamant in their respective positions. In that event, the consequence is paralysis and stagnation, as seen in the United States today. “Sapere Aude” is no longer the talisman which it was for Enlightenment thinkers, but what Gilbert Murray years ago called the “Failure of Nerve.”23 Madison’s nos. 52 and 53 continue discussion of the House of Representatives. Its members must be at least twenty-five years old, be a resident of the United States for at least seven years, and live in the State from which they seek election. After considering representatives elected for one year, Madison argues for two years—“BIENNIAL” elections. Federalist No. 54 contains Madison’s account of an interesting discussion from a Southern slave owner on slaves. They are inhabitants (but not citizens) and are considered “two-fifths of a man.” Madison himself opposed the importation of slaves until 1808. He desired the permanent abolition of importation. No. 54 also contains a question as to whether the wealth of a State should be a determining factor in the number of votes a State has. Madison rejects this, claiming that the legislature, especially the Senate, should be indifferent to State wealth. No. 55 cites the “disposition of appointments” as a source of corruption.

 Gilbert Murray, Five States of Greek Religion (Whitefish, MT: Kessinger Publishers, 2010).

23

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No. 56 uses the term “militia” to refer to infantry or cavalry. The question of militia and the right to bear arms will be taken up in a later chapter. Federalist No. 57 by Madison expresses his faith that the best will rise above the rest and become our rulers. “The aim of every political constitution,” he says, “is or ought to be, first to obtain for rulers men who possess most wisdom to discern and most virtue to pursue, the common good of the society.”24 How, given the “caprice and wickedness of man,” can degenerate souls be prevented from becoming rulers? The most powerful deterrence against this is first and foremost “a limitation of the term of appointment.”25 Corrupt rulers will not be elected. Five other reasons are offered. First, the people can ascertain which “men” are “distinguished … by those qualities which entitle them to … [their office].”26 A second deterrence is that those who seek public service cannot but help having “affection at least to their constituents.”27 Third, pride and vanity would lead men to want to be advanced by the people. Fourth, Representatives will anticipate having to run for re-election, and they will anticipate the possibility of losing the election, therefore they will anticipate that the people will review their performance. Finally, any law passed by the Representatives will apply not only to the public at large, but also to themselves, their family, and friends. In summation, Madison states that, “Duty, gratitude, interest, ambition itself, are the chords by which they will be bound to fidelity and sympathy with the great mass of the people.”28 However, he concedes that these motivations may not be sufficient: what are we to say to the men who profess the most flaming zeal for republican government, yet boldly impeach the fundamental principle of it, who pretend to be the champions for the right and the capacity of the people to choose their own rulers, yet maintain that they will prefer those only who will immediately and infallibly betray the trust committed to them?29

Federalist nos. 58 (Madison), 59 (Hamilton), 60 (Hamilton), and 61 (Hamilton) contain important considerations concern the House of Representatives. Madison begins by reiterating that the House represents  Federalist No. 57, 222.  Ibid., 222. 26  Ibid., 223. 27  Ibid. 28  Ibid., 224. 29  Ibid. 24 25

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the citizens, the Senate represents the States. Delegates were confronted with a problem as to how to satisfy representation demands made by small states versus representation demands made by larger states. In a solution to the question of representation, the “Great Compromise” proposed by delegate Roger Sherman of Connecticut, each state would have the number of members to the House determined by population. This satisfies the large States. But small and large States would have the same number of Senators. This favors the small states. Madison states that the House holds exclusive power of the purse: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.”30 No doubt, Madison’s view of the House of Representatives as composed of common men led him to support a significantly shorter term for House members (two years) than for the Senate (six years). The reader cannot avoid noticing the skepticism concerning ordinary people given these remarks, and his faith that eloquence and education of the few may win them over. In all legislative assemblies the greater the number composing these may be, the fewer will be the men who will in fact direct their proceedings. In the first place, the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason. In the next place, the larger the number, the greater will be the proportion of members of limited information and of weak capacities. Now, it is precisely on characters of this description that the eloquence and address of the few are known to act with all their force.31

Alexander Hamilton is the author of Federalist No. 59. His concern is with each State regulating the election of its members of Congress. Hamilton is assured that there isn’t “any article in the whole plan more completely desirable than this” namely that “The TIMES, PLACES, and MANNER of holding elections for senators and representatives shall be the legislatures thereof; but Congress may, at any time, by law, make or alter SUCH REGULATIONS, except as to the PLACES of choosing senators.”32 To put elections exclusively in the hands of State legislatures  Federalist No. 58, 227  Ibid., 228. 32  Federalist No. 59, 229. 30 31

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would result in a crisis “which might issue in the dissolution of the Union.”33 Federalist No. 60 by Hamilton raises the question of whether the national government could act unfairly in overseeing elections. His sensible answer is that any abuses in regard to elections by the national government result in the masses of citizens rising up, “causing an immediate revolt, led by State governments.”34 In Federalist No. 61 he examines the timing of elections to the House of Representatives. It is better to have uniformity in the two-year election cycle. Experience teaches that replacing House members with many new members would be “a cure for the diseases of faction.”35 If times varied, and it happened that a bad spirit pervaded the House, then when the new members trickled in, they would be infused with this improper spirit. Therefore, uniform election times are best, and can result in the rejuvenation of the House. Federalist No. 62 by Madison sets out qualifications for Senator: a minimum of thirty years of age, and is one who possesses greater information and stability of character. Each Senator represents the State in which he lives, and this gives each State “a portion of sovereignty.”36 If the House of Representatives passes improper legislation, this can be checked by the Senate. All in all, the bicameral system will have the backing of the majority of people and the backing of the majority of States. Bicameralism, Madison says, “doubles the security of the people”37 Madison is aware, but not fully aware, that “this complicated check on legislation may in some instances be injurious as well as beneficial”38 Madison’s confidence in the power of reason is such that he is unable to see the potential for paralysis and stagnation stemming from non-compromising members of each legislative branch. Important considerations concerning the mutability of the laws are taken up by Madison. He states that The internal effects of a mutable policy are … calamitous. It poisons that blessing of liberty itself. It will be of little avail to the people that the laws  Ibid.  Federalist No. 60, 232. 35  Federalist No. 61, 237. 36  Federalist No. 62, 238. 37  Ibid., 239. 38  Ibid., 238. 33 34

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are made by men of their own choice, if the laws are so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action, but how can that be a rule, which is little known and less fixed?39

Another consequence of the mutability of laws is that the well-­educated, the sagacious and the wealthy can avail themselves of whatever advantages may stem from the changes, leaving the uninformed, industrious masses of citizens to pay for the harvest, “a harvest, reared not by [the wealthy] themselves, but by the toils and cares of the great body of their fellow-­ citizens. This is a sad state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.”40 Madison in Federalist No. 63 underscores the fact that the world at large is the touchstone for how America’s new government is faring. Other nations may be able to assess our policies and laws and give us insightful judgment as to whether they are “wise and honorable policies.”41 Federalist No. 64 is one of five papers written by John Jay. He too is under the impression that the members of the Electoral College and State legislatures are the most enlightened and respectful of government officials. In Federalist No. 65 Hamilton examines the power of the Senate along with the President in appointments to offices. The Senate functions as a jury in the trial of impeachment, in which the charge(s) will involve claims of injuries to society itself and violations of public trust. The Chief Justice of the Supreme Court will be the President of the Court. In Federalist No. 66. Hamilton continues the discussion of impeachment. To find the accused guilty, there must be a “ concurrence of two thirds of the Senate will be requisite to a condemnation”42 It is a further advantage of bicameralism that it creates a sufficient and just procedure for impeachment of a President who encroaches upon the other branches. Hamilton states that

 Ibid., 240.  Ibid. 41  Federalist No. 63, 241. 42  Federalist No. 66, 252. 39 40

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the powers relating to impeachments are, as before intimated … an essential check in the hands of that body upon the encroachments of the executive. The division of them between the two branches of the legislature, assigning to one the right of accusing, to the other the right of judging, avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution.43

The House of Representatives alone can initiate impeachment, along with its exclusive right to originate money bills and be an “umpire in all elections of the President” in which there is lack of unity in the votes of the electoral members.44 In the matter of appointments to offices, the President nominates, and the Senate gives advice and consent. The Senate itself cannot choose appointments, only accept, or reject the nominees of the President. Federalist No. 67 (Hamilton) authorizes State governors to fill vacancies in the Senate. The President may nominate persons to serve as ambassadors, may nominate persons for judges to the Supreme Court, and any offices not determined by anything in the Constitution. Federalist No. 68 by Hamilton focuses on “electors.” These are men “chosen by the people for a special purpose … A small number of persons selected by their fellow citizens from the general mass, will be the most likely to possess the information and discernment requisite for such complicated investigations.”45 The advantage of having electors is that such a small number of citizens will be detached from the “heats and ferments” of politics and will not “convulse the community” by doing anything extraordinary or violent. Moreover, they will have a transient existence, active only in selecting the President. Each State will have the number of electors equal to the number of national Senators and Representatives combined. Hamilton trusts that the process of voting by the electors affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications … It will not be too strong to say, that there will be a constant

 Ibid.  Ibid., 253. 45  Federalist No. 67, 258. 43 44

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probability of seeing the station filled by characters pre-eminent for ability and virtue.46

Presumably, these good characteristics may be attributed to the Vice President, who, on some occasions may substitute for the President. In Federalist No. 69 Hamilton considers the powers of the Executive in the proposed Constitution. The President’s term in office shall be four years, and he can be re-elected as often as the people vote him in. The President may be impeached, tried, and convicted for treason, bribery, “or other high crimes or misdemeanors, removed from office and would be liable to prosecution and punishment in the ordinary course of law.”47 The President may veto a bill passed by both branches of the legislature, whereupon it is returned for reconsideration. If two-thirds of both branches vote in favor of the bill, it becomes law. The President in the Constitution is commander-in-chief of the army and navy “and of the militia of the several States.”48 He has the power to grant reprieves and pardons, but not impeachments. The ratification of treaties requires approval of the President, and a two-thirds vote of the Senate. Federalist nos. 70 and 71 contain Hamilton’s assessment of what the character of the President should be. He must be energetic, not feeble. Having one President sheds more light on his character than having two or more Presidents. With the latter individual faults would be less discernible and it would be more difficult to assign responsibility. Federalist No. 71 requires that the President have “firmness” in following the Constitution and that his administration is stable. Hamilton’s No. 72 warns against an ambitious President “violently” attempting “the prolongation of his power”49 One motive behind this might be the President’s determination to finish work he has begun. Another red flag is the avaricious President. He is greedy, enjoys the emoluments and other benefits of his office. His greed might “get the victory over his caution, his vanity, or his ambition.”50 Despite these warnings, not to allow the President to seek and win another term would be  Ibid., 259.  Federalist nos. 69, 260–261. 48  Ibid., 261. 49  Federalist No. 72, 273. 50  Ibid., 273. 46 47

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t­ antamount to “depriving the community of the advantage of the experience gained by the chief magistrate … experience is the parent of wisdom.”51 Having a one-term President would introduce too much mutability in policies and measures. Federalist nos. 73, 74, 75, 76, and 77 are the work of Hamilton, and continue the discussion of the President. His salary is fixed for his term in office, independent of the House of Representatives. The President’s veto power, cited previously, enables him to prevent bad laws, but, Hamilton concedes, it may also prevent good laws. In No. 74 the powers of the President are enumerated. He is the commander of the military. It is best, Hamilton argues, that one man can call the military into action, as well as deciding the direction of the war: “Of all the concerns of government, the direction of the war most peculiarly demands those qualities which distinguish the exercise of power by a single man.”52 The President is authorized to secure in writing any subject falling under the purview of the executive department heads. Regarding pardons, Hamilton contrasts the proposed Constitution’s presidential restraints on pardons with European practices in which criminal codes are so severe that even unwarranted guilt can be punished, giving Justice a cruel countenance. Pardons should be “as little as possible fettered or embarrassed.”53 But pardoning must be tempered by “scrupulousness and caution.” To put the power of pardons and reprieves in the hands of the President is the best practice, since “one man appears to be a more eligible dispenser of the mercy of government, than a body of men.”54 There is a reference to mass pardoning in the case of an insurrection, “when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”55 Federalist No. 75 sets out the President’s power to make treaties, in conjunction with a two-thirds affirming vote of a quorum of Senators. Federalist No. 76 discusses the President’s power to make appointments. This power puts the burden of responsibility on his shoulders to carefully investigate the qualities demanded for each appointment. To  Ibid., 274.  Federalist No. 74, 279. 53  Ibid. 54  Ibid. 55  Ibid., 280. 51 52

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have the legislature appoint would trigger “all the private and party likings and dislikes, partialities and antipathies, attachments and animosities which are felt by those who compose an assembly … [thereby losing] the intrinsic merit of the candidate.”56 The Senate may reject the President’s appointment but will realize that a second nominee may be even more unfavorable to them. So, the Senate is compelled to exercise caution. Participation by the Senate has the merit of preventing favoritism and unfit persons, including anyone unfit from the President’s own State. No. 77 ends the series of papers concerning Presidential powers. Additional powers and responsibilities include giving a State of the Union speech, convening Congress, receiving foreign dignitaries, commissioning officers, and faithfully executing the laws of the United States. Federalist Nos.78, 79, 80, 81, 82, and 83 were written by Hamilton, and focus upon the Judiciary. Members are to hold their office as long as they exhibit good behavior. Hamilton considers the judiciary the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse … It may truly be said to have neither FORCE nor WILL, but merely judgment.57

Its power is to declare acts of Congress or the President contrary to the Constitution “void” if they are “contrary to the manifest tenor of the Constitution.”58 The interpretation of the laws is the sole province of the judiciary, with the fundamental laws of the Constitution reigning supreme. If two laws are contradictory, the judiciary may “liquidate and fix their meaning.” If the judiciary has the power to declare legislative or Presidential acts void, then does this mean that the judiciary is superior? Hamilton shirks this question by saying that the power of the people is superior to both branches, and the will of the people is embodied in the Constitution.  Ibid., 284.  Federalist No. 78, 289–290. 58  Ibid., 290. 56 57

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Temporary appointments to the judiciary would destroy its independence. As time goes by the number of laws grows and grows. Therefore, it is necessary that the judges be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them … that the records of those precedents must unavoidably swell to a very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.59

Men who possess the necessary skills in the law to serve on the judiciary are rare. Hamilton sets out in no uncertain terms that a republican government rests on the will of the people: [It is a] … fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness.60

Does that mean, if the people have a “momentary inclination” expressed through their representatives, to alter or abolish, that this can proceed? The answer Hamilton gives is “No.” To alter or abolish would require a “solemn and authoritative act.”61 Federalist No. 79 continues comments on the judiciary. As noted above, members of the judiciary are “secured in their places for life.”62 Like other high officials, judges are subject to impeachment by the House of Representatives and a trial by the Senate. If convicted they are to be dismissed. In Federalist No. 80 Hamilton asks, can the court be efficacious in regard to the State laws usurping federal laws? There are only two options: One is a “negative” or veto; the other is establishing the authority of the federal courts to overrule State laws. Of these, the latter is preferable. Federalist No. 81 takes up the question of whether the judiciary can encroach upon the legislature. This, Hamilton says, may happen “now and then,” but cannot be so extensive as to gain the wrath of the legislative  Ibid., 293.  Federalist No. 78, 292. 61  Ibid. 62  Federalist No. 79, 294. 59 60

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body, which holds the power of impeachment of court members. Therefore, this Constitutional arrangement is “alone a complete security.”63 The power of creating inferior federal courts is necessary to relieve the Supreme Court of its heavy caseload. State courts are not fit to exercise themselves on national concerns, for they are imbued with a limited local spirit. Hamilton suggests that it is useful to divide the United States into four, five, or six districts with a federal court in each district. The Supreme Court is limited to cases involving public officials and cases in which a State shall be a party. The Supreme Court will have appellate jurisdiction. “Appellate” simply means “the power of one tribunal to review the proceedings of another, either as to the law, or fact, or both.”64 A final comment is that once a jury has established something as fact(s), there can be no re-examination of these facts. All in all, the fundamental authority of the United States judiciary is the Supreme Court: “The judicial power of the United States is … to be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”65

In Federalist No. 82. Hamilton forecasts improvements over time to this great experiment, especially in regard to the judiciary system: “‘Tis time only that can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE.”66 The actions of the Supreme Court are two, origination stemming from the Constitution, and appellate, or review of lower courts. Federalist No. 83 draws out differences between criminal cases and civil cases. Criminal cases always require a jury, whereas a civil case can be tried by a jury or a judge, according to the dicta of State legislatures. Trial by jury lessens the chance of corruption, and if the jury gets it wrong, a mistrial can be declared.

 Federalist No. 81, 301  Ibid., 303. 65  Federalist No. 81, 299. 66  Federalist No. 82, 304. 63 64

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Courts of Equity do not consider monetary or criminal cases, but consider remedies, injunctions, and the like. Cases of this kind are generally too complicated and drawn-out for a jury to consider. In Federalist No. 84 Hamilton considers “Miscellaneous Objections.” The central objection to the proposed Constitution is that it has no Bill of Rights. In this paper Hamilton argues against an additional Bill of Rights. He believes the Constitution already has a Bill of Rights, and he cites a number of these, such as writ of habeas corpus, trial by jury for crimes, etc. He argues that State constitutions, together with the national Constitution, are sufficient—“both of them contain all which, in relation to their objects, is reasonably to be desired.”67 The proposed Constitution does what a constitution should do--it regulates the political interests of the nation, as opposed to “a constitution which has the regulation of every species of personal and private concerns.”68 A Bill of Rights, he says, is not only unnecessary, it is “dangerous,” the product of “injudicious zeal.” Some rights, like freedom of the press, cannot even be defined and therefore there is enormous latitude for evasion. The Constitution itself “is in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”69 Federalist No. 85, the last of the papers, was published by Hamilton May 28, 1788. It contains some concluding remarks, two of which have contemporary relevance for America in the twenty-first century. He believes the proposed Constitution can suppress two evils, insurrections, and ascending despots on the one hand, and bad behavior by the States on the other. Noting that nothing perfect issues from imperfect man, the Constitution will give to Americans The additional securities to republican government, to liberty and to property, to be derived from the plan under consideration, consist chiefly in the restraints which the preservation of the Union will impose on local factions and insurrections, and on the ambition of powerful individuals in single States, who may acquire credit and influence enough … to become the despots of the people70

In addition, the proposed government would install  Federalist No. 84, 317.  Ibid. 69  Ibid. 70  Federalist No. 85, 321. 67 68

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precautions against the repetition of those practices on the part of State governments which have undermined the foundations of property and credit, have planted mutual distrust in the breast of all classes of citizens, and have occasioned an almost universal prostration of morals.71

His final comment is to reiterate the requirements for amending the Constitution. To achieve this two-thirds of the States may compel Congress to call a convention for proposing amendments. Ratification would require “three-fourths of the States, or by conventions in three-­ fourths thereof.”72

 Ibid.  Federalist No. 85, 324.

71 72

CHAPTER 6

Specific Topics Under Constitutional Consideration in Aristotle, John Adams, Alexander Hamilton, James Madison, and Benjamin Franklin

So far, the focus has been on the views of Aristotle and the Founders in regard to general constitutional topics. This section will examine specific topics not previously cited. Important topics remaining are the Founders’ constitutional considerations of a bill of rights, education, elections, freedom of the press, militias, and religious freedom. Bill of Rights Discussion by the Founders  Much heated discussion at the Constitutional Convention centered on the question of whether the Constitution should have a Bill of Rights, and if so, what are the nature and extent of those rights? At one point, Colonel George Mason, a strong advocate of a Bill of Rights, walked out of the Convention in disgust because its inclusion remained up in the air. Mason and others in the “Anti-Federalist Movement” are to be credited with bringing the Convention members to understand the necessity of a rights bill. It should be recalled that Jefferson’s Declaration of Independence had already put citizen rights at the forefront, as had Virginia in its 1776 Bill.  A brief account of the history of rights discussion at the Convention begins with Elbridge Gerry of Massachusetts, who insisted that there be a

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_6

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right to trial by jury. He moved that a committee be formed to prepare a Bill of Rights. At first opposed by the States, eventually the pendulum began to swing to its approval. In a letter to Madison, Thomas Jefferson laid out the objections to such a bill, and then offered a refutation to each objection. As Andrew J. Reck observes, “On all major issues concerning rights Madison was the pupil of Jefferson.”1 In July 1788, Thomas Jefferson wrote to James Madison that “the general voice from North to South … calls for a bill of rights.” It was the Enlightenment Jefferson more than anyone else who strenuously advocated a Bill of Rights: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”2 Madison was initially opposed to a Bill of Rights, regarding it as “a mistake.”3 At the Constitutional Convention, Madison did not initially support a Bill of Rights, and at the Virginia State Convention in June 1788, Madison stated that “a solemn declaration of our essential rights” was both unnecessary and potentially dangerous.4 It is probable that Madison was influenced by Hamilton’s aggressive rejection of such a bill. But nearly a year later in a Congressional speech on June 8, 1789, he had overcome Hamilton’s objections to a Bill of Rights. For example, Madison rejected the Hamiltonian idea that bills of rights in the various states are sufficient: It may be said, because it has been said, that a bill of rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions…some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but 1  Andrew J.  Reck, “The Enlightenment in American Law III: The Bill of Rights.” The Review of Metaphysics, Volume 45 (1991), 73. 2  Quoted by James Morton Smith, RL, page 451. 3  Cited by Republic of Letters (RL) editor James Morton Smith. Smith states that “Personally, Madison denied that the unamended Constitution had placed basic rights in Jeopardy.” Eventually he conformed to the will of the people. 4  See James Madison’s speech of June 24, 1788. Access at: https://wwnorton.com/college/history/archive/resources/documents/ch07_05.htm. Also see Madison’s speech of June 8, 1789. In a letter to Thomas Jefferson on October 17, 1788, Madison describes bills of right as “parchment barriers” violated by majorities in the States, including Virginia. Madison concedes that a bill of rights may in time have value when it takes its place as part of the “fundamental maxims” of free government and may have benefit in preventing government violations of rights. RL, 564–565.

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absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.5

Madison wrote to Jefferson that there are multiple justifications of rights amendments. There is the two-fold justification, that a sense of possessing rights will become embedded in the way Americans think: What use then it may be asked can a bill of rights serve in popular Government? I answer the two following which though less essential than in Governments, sufficiently recommend the precaution. 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and… [they] counteract the impulses of interest and passion.6

The second reason concerns oppression by the majority of minorities or by oppression by the government: 2. Altho’ it is generally true … that the danger of oppression lies in the interested majorities of the people rather than in usurp acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.7

In addition, there is the lingering threat that a ruthless ruler or rulers may one day appear: Finally, if some clever and ambitious ruler(s) may attempt to set up an independent government by crushing individual liberties, a Bill of Rights will stand as a further impediment to such maneuvers.8

All governments, Madison says, are inclined to increase power at the expense of individual liberties.9 Some deficiencies may exist in the Bill to 5  American History, “Madison speech proposing the Bill of Rights June 8 1789.” Access at: https://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-thebill-­of-rights-june-8-1789.php 6  RL, page 565. 7  Ibid. 8  Ibid. 9  Ibid.

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be advanced. It may omit some important rights and may certainly not be as efficacious as desired. As far as omissions are concerned, “half a loaf is better than no bread.” The Bill will have some efficacy, but not absolutely so. “A brace the more will often keep up the building which would have fallen with that brace the less.”10 It was Alexander Hamilton who vigorously opposed a Bill of Rights. He regarded the Constitution as itself containing rights without the necessity of an amended Bill of Rights. Moreover, the various State constitutions refer to rights. He expressed concern that an amended Bill of Rights would lead to incorporation of “every species of personal and private concerns.” He went ever further, claiming I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would claim various exceptions to powers not granted, and, on this very account, would afford a colorable pretext to claim more than were granted.11

Finally, there is the problem of defining the various rights. As an example, Hamilton singles out freedom of the press: What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable … [it] must altogether depend on public opinion, and on the general spirit of the people and of the government.12

On June 8, 1789, Madison introduced twelve amendments, ten of which became the federal Bill of Rights. This was a final step in the ratification of the Constitution, not woven into the Constitution but appended to it, a position Roger Sherman of Connecticut had argued for. The House of Representatives had a list of seventeen amendments, but the Senate combined some of these into twelve amendments. The first two amendments were not ratified. Amendments 1 and 2, concerning the House of Representatives and salaries for Representatives and Senators respectively, were not ratified. Amendments that were ratified are: Article I protects freedom of religion, freedom of speech and press, and freedom of  RL, 587–588.  Federalist No. 84, page 317. 12  Ibid. 10 11

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assembly; Article II protects the right to bear arms; Article III prevents compulsory quartering of soldiers in citizen homes; Article IV protects against unreasonable search and seizure; Articles V–VIII are procedural rights, such as trial by jury; Article IX grants further rights to citizens that may not be in the Constitution so amended; Article X states that powers not included in the Constitution belong to the States or to the people.13 Education  Aristotle, the authority on constitutions in the ancient world, stressed that the sine qua non of good government is the education of its citizens. He emphasizes the “cardinal importance of educating citizens to live and act in the spirit of the constitution: this is too often neglected, especially in extreme democracies, which encourage the idea of ‘living as one likes.’”14 Aristotle believed that giving children a proper education is a moral act, and that education transcends the family and involves the State. Aristotle praises Sparta for having laws providing for the education of its citizens. “In most states … ‘ruling over his children and wife’ in the fashion of the Cyclopes”15 is common. Education should be public and the same for all.16 The legislative body “should make the education of the young its chief concern.” Just as the earth nourishes seeds, so the legislature must provide for the nourishment of the young, creating in them good habits.  Aristotle’s Politics, Book VIII, is “THE TRAINING OF YOUTH.” He cites three kinds of essential instruction: utility, moral discipline, and the advancement of knowledge.17 In regard to utility, “There can be no doubt that such useful subjects as are really necessary ought to be part of the instruction of children,” but not to the extent that one becomes morally debased by mechanical routine.18 Today in the twenty-­first century, It is astonishing how many young persons know little or nothing about common practical matters, such as how to use hammer and nails, a saw, simple 13  Madison’s Draft of the Bill of Rights can be found in RL, 622. It was an enclosure to a letter to Jefferson of June 30, 1789. This does not correspond to the ten amendments that were ratified. The rights in this draft are more informative and better worded than those ratified. Jefferson approved of the list “as far as it goes.” RL, 629. 14  PA, 230. 15  PA, 357; This quotation, cited by Barker, is from the Nicomachean Ethics, 1180 a 14. 16  PA, 332. 17  PA, 333. 18  PA, 334.

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plumbing, and electrical repair. There are too many young men and women among the unemployed poor whose lives could be turned around by free community and junior college training in matters of “utility.” This free education is provided for in the new, updated Constitution which this book contains. John Adams’ A Defence … reveals his admiration for Plato’s compulsory, public educational system, but being a country of farmers, he had little confidence in the judgment of masses of citizens in colonial America. That is why he places great value upon having a bicameral system with one branch composed of Senators superior in talent, knowledge, and virtue. Adams believed that families should pay for the education of their children. He reasoned that if they were required to do so, they would be more appreciative of its value. In his Inaugural Address of 1797 Adams views the array of educational institutions as essential for preserving happiness and the Constitution: if a love of science and letters, and a wish to patronize every rational effort to encourage schools, colleges, universities, academies, and every institution for propagating knowledge, virtue, and religion among all classes of the people, not only for their benign influence on the happiness of life in all its stages and classes and of society in all its forms, but as the only means of preserving our constitution from its natural enemies, the spirit of sophistry, the spirit of party, the spirit of intrigue, profligacy and corruption, and the pestilence of foreign influence, which is the angel of destruction to elective governments.19

Jefferson is an even stronger advocate of education. He considered education to be crucial: “Above all things I hope the education of the common people will be attended to.”20 The first bill presented to the newly formed (December 16, 1778) Congress was Jefferson’s “A Bill for the More General Diffusion of Knowledge.” He proposed free public education in every district in the country for “free children, male and female” for a period of three years. Children “shall be taught reading, writing, and common arithmetic, and the books which shall be used 19  John Adams, “Inaugural Speech to Both Houses of Congress, 4 March 1797.” Access at: https://avalon.law.yale.edu/18th_century/adams.asp 20  RL, 514. For an excellent examination of Jefferson’s extensive concerns with education in all facets of life, see the collection of essays edited by James Gilreath, Thomas Jefferson and the Education of a Citizen (Washington: Library of Congress, 1999).

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therein for instructing the children to read shall be such as will at the same time make them acquainted with Graecian, Roman, English, and American history.”21 Beyond primary schools, grammar schools shall teach “the Latin and Greek languages, English grammar, geography, and the higher part of numerical arithmetic.”22 In response to a request from John Brazer in August of 1819, Jefferson describes in detail “the extent to which classical learning should be carried out in our country.”23 He thanks his father for introducing him to Latin and Greek and the “beauties” contained in those writings. He describes the usefulness of classical studies for the Moralist, the Divine, the Lawyer, the Physician, the Statesman, and even to the Merchant, the Agriculturalist, and the Mechanic. “To sum the whole therefore, it may truly be said that the Classical languages are a solid basis for most, and an ornament to all the sciences.”24 Jefferson says he would not exchange knowledge of the classics for anything: “I thank on my knees him who directed my early education for having put into my possession this rich source of delight.”25 It was James Madison who wrote in the Federalist papers that the progress of sciences and the arts would be benefited by giving exclusive rights to “their writings and discoveries.”26 He stated rulers must have the “wisdom to discern and … virtue to pursue the common good of the society.”27 Citizens must have access to popular information for “without popular information, or the means of acquiring it, is but a prologue to a Farce or

21  “A Bill for the More General Diffusion of Knowledge.” Online: https://founders. archives.gov/documents/Jefferson/01-02—02-0132-0004-0079, page 2. Original source: The Papers of Thomas Jefferson, vol. 2, edited by Julian P.  Boyd (Princeton: Princeton University Press, 1950, 528–535. 22  Ibid. 23  Founders Online. “Thomas Jefferson to John Brazer.” https://founders.archives.gov/ gov/docuements/Jefferson/03-14-02-0591. Original source: The Papers of Thomas Jefferson, Retirement Series, vol. 14. 1 February to 31 August 1819. Edited by J.  Jefferson Looney (Princeton: Princeton University Press, 2017), 629–631. 24  Ibid. 25  “Thomas Jefferson to Joseph Priestley.” Founders Online. Access at: https://founders. archives.gov/documents/Jefferson/01-31-02-0289. Original source: The Papers of Thomas Jefferson, vol. 31, 1 February 1799–31 May 1800. Edited by Barbara B.  Oberg (Princeton: Princeton University Press, 2004), 339–341. 26  Federalist No. 43, 176. 27  Federalist No. 57, 222.

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a Tragedy; or perhaps both.”28 He applies the Baconian thesis that knowledge is power to citizens: they must have knowledge in order to have the power to govern themselves. What are the benefits of education? First, educational institutions “throw that light over the public mind which is the best security against crafty and dangerous encroachments on the public liberty.”29 Second, they are “nurseries of skilful Teachers” for the school districts. Third, “They multiply the educated individuals from among whom the people may elect a due portion of their public agents of every description”30 Education yields rulers who give perspicuity, consistency and stability, as well as a just spirit in framing the laws. Unlike John Adams, Madison thought it best that the rich pay for the education of the poor through property tax. Students who have exceptional talent should be advanced as far as they can achieve (all the way to “the completion of his studies at the highest”) at the public’s expense if parents cannot afford to do so. Benjamin Franklin published a proposal for an Academy to educate the youth of Pennsylvania, and it was eventually transformed into the University of Pennsylvania. The Academy in this proposal includes subject matters taught in today’s secondary school system, and others taught in today’s colleges and junior colleges. Benjamin Franklin’s views on education depart from those of the other founders in several ways. Following John Locke, he recommended that students should study the grammar and other features of their native language rather than the traditional Latin and Greek.31 He places great emphasis on historical studies. One benefit of this is acquiring the advantages of “Civil Orders and Constitutions.” Another is to understand the “Advantages of Liberty” in contrast to the Mischiefs of Licentiousness, and the benefits of “good laws and a due execution of Justice.” Moral studies are central: “Observations on the Causes of the Rise or Fall of any Man’s Character, fortune, power, &c … the Advantages of Temperance, Order, Frugality, Industry, Perseverance … 28  “From James Madison to William T. Barry, August 4, 1822.” Founders Online: https:// fjounders.archives.gov/documents/Madison/04-02-02-0480. Original source: The Papers of James Madison, Retirement Series, vol. 2, February 1820–26 February 1923. David B.  Mattern, J.  C. A.  Stagg, Mary Parke Johnson, and Anne Mandeville Colony editors (Charlottesville: University of Virginia Press, 2013), 555–558. 29  Ibid. 30  Ibid. 31  Benjamin Franklin, “Proposals relating to the Education of Youth in Pennsylvania.” https://archives.upenn.edu/digitized-resources/docs-pubs/franklin-proposals

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[whose aim is] to fix in the minds of youth deep impressions of the Beauty and Usefulness of Virtue of all Kinds.”32 Since students will be prone to debate issues that emerge from these studies, Franklin advises that s­ tudents become proficient in “the Use of Logic, or the Art of Reasoning to discover the Truth.”33 Franklin also differed from others in holding that education should include what today we call science—a mixture of the most useful (including “Observations” or “Natural History,” i.e., science) together with the most ornamental (he cites acquiring foreign languages as “a distinguishing ornament.)” Franklin cites Charles Rolin on children. Even children, are capable of Studying Nature, for they have eyes, and don’t want [lack] Curiosity; they ask Questions, and loved to be informed; and here we need only awaken and keep up in them the Desire of Learning and Knowing which is natural to all Mankind … It is inconceivable how many Things Children are capable of if all the Opportunities of instruction them were laid hold of, which they themselves supply us.34

Franklin held that students should learn practical matters, including farming and horticulture, visits to nearby plantations, etc. Among Franklin’s favorite thinkers on education is George Turnbull, a philosopher of the Scottish Enlightenment. Franklin’s concluding note in “Proposals …” quotes Turnbull’s profound statement on education: there be any such Thing as DUTY, or any such Things as HAPPINESS; if there be any Difference between right and wrong Conduct; any Distinction between Virtue and Vice, or Wisdom and Folly; in fine, if there be any such Things as Perfection or Imperfection belonging to the rational Powers which constitute moral Agents; … [then] Good Education must of Necessity be acknowledged to mean, proper Care to instruct early in the Science of Happiness and Duty, or in the Art of Judging and Acting aright in Life … [anyone] quite unacquainted with the Nature, rank and Condition, of

32  Ibid. One sees here allusions to Franklin’s own “Art of Virtue,” with his method of practicing the thirteen virtues. 33  Ibid. 34  Ibid. Charles Rolin, The Method of Teaching and Studying the Belles Lettres, Volume 2 in Franklin’s edition. Also, see footnote 23 in Franklin’s “Proposals …” for more stellar quotes from Rolin concerning children.

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Mankind, and the Duties of human Life … he hath lost his Time; he is not educated; he is not prepared for the World; he is not qualified for Society.35

Franklin is unique in delineating his curriculum, including in it science, basic practices such as gardening. Today the emphasis on moral education that characterized Aristotle and the Founders has been tossed into the lap of folk religions, hardly a place for a sufficient education in these matters. Elections  The Founders were worried about corruption in the nation’s elections, and some of these worries are tied to concern about State encroachment on federal matters. Alexander Hamilton commented that if the election of a State’s federal Representatives in the House were regulated by State legislatures alone, then national crises would occur:  If the State Legislatures were to be invested with an exclusive power of regulating these elections, every period of making them would be a delicate crisis in the national situation, which might issue in a dissolution of the Union, if the leaders of a few of the most important States should have entered into a previous conspiracy to prevent an election … security will not be considered as complete, by those who attend to the force of the obvious distinction between the interest of the people in the public felicity, and the interest of their local rulers in the power and consequence of their offices.36

Hamilton extends this further to any national election: Nothing can be more evident, than that an exclusive power of regulating elections for the national government, in the hands of the State legislatures, would leave the existence of the Union entirely at their mercy. They could at any moment annihilate it.37

Americans may be attached to the interests of the Union while State legislatures are interested in their own power and personal aggrandizement, and participation in factional rivalry. In Federalist No. 60 Hamilton continues the discussion of elections. He rejects the possible arrangement of confining election places to 35  Quoted by Franklin, “Proposals…” footnote 29. From George Turnbull, Observations on Liberal Education, in all its Branches. Page 415 in Franklin’s 1742 edition. 36  Federalist No. 59, 231. 37  Ibid., 230.

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districts. He argues that the national government’s authority does not extend to establishing property qualifications for voters or to candidates for office. “Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections.”38 This cannot be changed. The Federalist papers describe the President and Senators as elected by Electors. This is the position of John Jay, Hamilton, and Madison. However, the Electors in each State are “chosen by the people.”39 They are chosen out of the mass of people because of their knowledge and discernment. Their existence is of short duration, and this makes them more detached from “heats and ferments.” Their votes will be less likely to convulse the community and generate violent movements. Jefferson expressed concern that the President, if he lost an election, would “pretend false votes, foul play, hold possession of the reins of government, [and] be supported by states supporting him.”40 Such is the case today with Donald Trump’s false claims. Freedom of the Press In reviewing Madison’s Bill of Rights, Jefferson thought it should go further, and one of the recommended alterations concerns freedom of the press. Jefferson thought Article 4 should read; “The people shall not be deprived or abridged of their right to speak or write or otherwise to publish any thing but false facts affecting injuriously the life, liberty, property, or reputation of others or affecting the peace of the confederacy with foreign nations.”41 Hamilton’s claim that freedom of the press cannot be defined, and has unlimited chances for evasion, has already been noted.  The greatest champion of freedom of the press, while at the same time cognizant of the press’ weaknesses, was Benjamin Franklin. Himself a newspaper man—a “printer” as he called himself—Franklin supported freedom of the press as necessary vehicle for unearthing the truth: It is a Principle among Printers that when Truth has fair Play, it will always prevail over Falsehood. Therefore, though they have an undoubted Property in their own Press, yet they willingly allow that any one is entitled to the Use  Federalist No. 60, 234.  Federalist No. 68, 258. 40  RL, 513. Jefferson is thinking of a close election in which it might be easier to claim false votes, etc. 41  RL, 629. 38 39

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of it who thinks it necessary to offer his Sentiments on disputable Points to the Publick, and will be at the Expense of it. If what is thus publish’d be good, Mankind has the Benefit of it. If it be bad (I speak now in general without any design’d Application to any particular Piece whatever) the more ‘tis made publick, the more its Weakness is expos’d, and the greater Disgrace falls upon the Author, whoever he be, who is at the same Time depriv’d of an Advantage he would otherwise without fail make use of, viz. [namely] of Complaining that Truth is suppress’d, and that he could say MIGHTY MATTERS, had he but the Opportunity of being heard. The truth.42

Franklin’s poem on the freedom of the press has survived. This is part of the poem: The Press from her fecundous Womb Brought forth the Arts of Greece and Rome; Her Offspring, skill’d in Logic War, Truth’s Banner wav’d in open Air; The Monster Superstition fled, And hid in Shades her Gorgon Head; And lawless Pow’r, the long kept Field, By Reason quell’d, was forc’d to yield43

Yet Franklin was well aware of the power of the press to damage lives, reputations, policies and behaviors. Militia  Bearing arms was a necessity from the outset when the Europeans began colonization of the eastern seaboard. Attacks by indigenous tribes were common. Colonials had to carry arms into their churches, for tribes had observed that the colonial men left their arms outside during church services. In addition to these early dangers, the colonials had been at war with a foreign power on colonial soil. Finally, there were armed rebellions, such as Shay’s Rebellion.  In Federalist No. 25 Hamilton dismisses the idea that a militia of citizens can adequately defend against a regular and well-disciplined federal army.44 Experience has shown, he says, that reliance upon a citizen militia 42  “Statement of Editorial Policy” The Pennsylvania Gazette, 24 July 1740. Access at: http://nationalhumanitiescenter.org/pds/becomingamer/ideas/text5/franklinprinting.pdf 43  Published by Academy of American Poets. https://poets.org 44  Federalist No.25, 115.

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is no bulwark in defense of liberty. The power of raising armies, that is, a militia, resides in the legislatures of the States. Hamilton appears to be saying that the national government is empowered to call forth militia, which the States can provide from its pool of healthy men. Uniformity in regulating militia can only be accomplished by confiding the regulation of the militia to the direction of the national authority. It is, therefore, with the most evident propriety, that the plan of the convention proposes to empower the Union ‘to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECTIVELY THE APPOINTMENT OF THE OFFICERS, AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.45

This power of “regulating and calling forth” the militia is echoed by Madison (a Colonel in the Revolutionary War) and falls within the federal power of providing security. He appears to mean by “militia” infantry and cavalry. Local knowledge possessed by each state is irrelevant to the regulation of the militia. The art of war is to be conducted on general principles.46 Madison disagrees with Hamilton on the efficacy of a citizen militia to thwart a professional army, whether national or foreign. The United States could only raise an army of 25,000 or 30,000 able men, as compared to a citizen militia “amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties.”47 Madison extolls the virtues of having an armed citizenry, capable of throwing off tyranny—“the advantage of being armed, which the Americans possess over the people of almost every other nation.”48 In March 1776 John Adams proposed that men disaffected with American independence from the British be disarmed, and their arms transferred to the Continental Army. Notice that if the removal of arms

 Federalist Nos.29, 124–125.  Federalist No. 56, 221. 47  Federalist No. 46, 192. 48  Ibid. 45 46

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were extended to today’s insurrectionists, they would be significantly less a threat to State or national government. What can be made of these scant remarks concerning the right to bear arms? It appears that Madison at least thought it a virtue of American life that every man owns or possesses arms, just in case of internal or external threats to the United States. In the event of a threat, federal authorities can call up able-bodied men to form a militia or armed force. It also appears that this call-up would go through the governor’s office of States which can fulfill the needs for a federal call-up. There is no reference to citizens having a right to carry arms in public. Further discussion of the Founders on militia continues in Chap. 9. Religious Freedom  A major contribution to constitutional thinking worldwide is the near unconditional freedom of religion offered by the Founders, especially Madison and Thomas Jefferson.  In 1774 the young James Madison observed “five or six” Baptist preachers in jail for publishing their views. This enraged Madison: “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their quota of Imps for such business … This vexes me the most of any thing whatever.”49 Prompted by such injustices and many others in place at that time, Madison was responsible for a great leap forward in thinking about religious freedom. At the Revolutionary Convention, delegate George Mason had proposed an amendment guaranteeing “toleration” of all faiths. To Madison, this did not go far enough. He sought to expand religious liberty rights beyond mere toleration and argued for the “free exercise” of religion, a concept that would later resurface in the First Amendment. In October 1784 Patrick Henry submitted to the Virginia Assembly “A Bill establishing a provision for the teachers of the Christian religion.” This bill would have given financial aid to these teachers’ efforts to help children and the poor. But Madison noted that it violated the Constitution’s separation of Church and State. So, he wrote a response, “Memorial and

49  Cited by James Hutson, “James Madison and the Social Utility of Religion: Risks vs. Rewards,” James Madison: Philosopher and Practitioner of Liberal Democracy. Access at: https://www.loc.gov/loc/madison/hutson-paper.html

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Remonstrance Against Religious Assessments.”50 Madison noted that the bill was “a dangerous abuse of power … The Religion … of every man must be left to the conviction and conscience of every man, and it is the right of every man to exercise it as these may dictate.”51 Religious conviction is exempt from control by Civil Society and by Legislatures. Historically, what has happened in those centuries in which Christian worship has been law? Madison answers that “More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.”52 Madison wisely notes that the establishment of Christianity to the exclusion of all other sects, may result by the same authority and “with the same ease any particular sect of Christians.”53 Finally, control of worship could lead to the control (and therefore loss of freedom) of other rights. Thomas Jefferson’s position on religious freedom is virtually identical with that of Madison, but his arguments differ. In a bill presented to the General Assembly of Virginia, Jefferson claimed that God established the minds of mankind to be compelled involuntarily by evidence, but otherwise not subject to restraint. To compel men to believe is useless; one can only compel men to say they believe in order that they may escape punishment. This, Jefferson says, leads those men to hypocrisy and meanness. Moreover, to compel people to “furnish money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.”54 Our civil rights in no way depend upon religious beliefs, any more than our civil rights depend on physics or geometry. Jefferson’s Bill sweeps away every sort of compulsion in connection with religious beliefs and practices: no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or 50  June 20, 1785. In The Papers of James Madison, volume 8, 10 March 1784—28 March 1786. Robert A.  Rutland and William M.  E. Rachal editors. (Chicago: The University of Chicago Press, 1973), 295–306. Access online at: https://founders.archives.gov/documents/Madison/01-08-02-0163 51  Ibid. 52  Ibid. 53  Ibid. 54  Thomas Jefferson, “A Bill for Establishing Religious Freedom,” June 18, 1779. The Papers of Thomas Jefferson, volume 2, 1777-June 18, 1779. Julian P. Boyd editor (Princeton: Princeton University Press, 1950), 545–553. Access online: https://founders.archives.gov/ documents/Jefferson/01-02-02-0132-0004-0082

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burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.55

In his 1787 Notes on the State of Virginia Jefferson takes a different line of argument. To coerce belief is done to ensure uniformity: But is uniformity desirable? No more than of face or stature. Introduce the bed of Procrustes then, and as there is danger that the large men may beat the small, make us all of a size, by lopping former and stretching the latter. Difference of opinion is advantageous in religion. The several sects perform the Office of a Censor morum over each other.56

Not only is coercion destructive of freedom, the quest for uniformity in one religion, Christianity, has resulted in countless evils: Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned, yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites.57

Jefferson is of course famous for his version of the New Testament which he titled The Life and Morals of Jesus of Nazareth. Using a razor and glue Jefferson cut away miracles, deleted every trace of myth, including angels, prophecies, the Trinity, the divinity of Jesus, Platonism, the resurrection, and so on. This work was preceded by a lost work, The Philosophy of Jesus of Nazareth. Jefferson considered the moral teachings of Jesus to be unsurpassable for how we should treat others, but that is only 50% of morals. The other 50% of morals is to be found in the teachings of Epicurus concerning how we should treat ourselves:  Ibid.  Thomas Jefferson, Notes on the State of Virginia, in The American Intellectual Tradition, Volume 11, 630–1865 David A. Hollinger and Charles Capper editors. (New York and Oxford: Oxford University Press, 2016), 205. Jefferson had read Voltaire, who said ““If there were only one religion in England, there would be danger of tyranny; if there were two, they would cut each other’s throats; but there are thirty, and they live happily together in peace.” 57  Ibid., 205–206. 55 56

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the greatest of all the Reformers of the depraved religion of his own country, Jesus of Nazareth. abstracting what is really his from the rubbish in which it is buried, easily distinguished by its lustre from the dross of his biographers, and as separable from that as the diamond from the dung hill, we have the outlines of a system of the most sublime morality which has ever fallen from the lips of man: outlines which it is lamentable he did not live to fill up. Epictetus & Epicurus give us laws for governing ourselves, Jesus a supplement of the duties & charities we owe to others.58

John Adams also affirmed that the United States is not bound to any religion, including Christianity. In Article 11 of the 1797 Treaty with Tripoli, signed by Adams and the United States Congress: As the government of the United States of America is not in any sense founded on the Christian Religion,  — as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen, — and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.59

Benjamin Franklin’s religious beliefs were penned by him on November 20, 1728, under the title, “Articles of Belief and Acts of Religion.” Franklin wrote, I Believe there is one Supreme most perfect Being, Author and Father of the Gods themselves … it is impossible for me to have any positive clear Idea of that which is infinite and incomprehensible, I cannot conceive otherwise,

58  Thomas Jefferson, “Letter to William Short, October 31, 1819.” The letter contained an enclosure, “A Syllabus of the Doctrines of Epicurus,” written by Jefferson “some twenty years” prior to the letter. Access at: https://founders.archives.gov/documents/ Jefferson/03-15-02-0141-0001 There is also a comparison of thinkers’ moral systems: “Doctrines of Jesus Compared to Others.” The Papers of Thomas Jefferson, vol. 40, 4 March–10 July 1803, ed. Barbara B. Oberg. (Princeton: Princeton University Press, 2013), 253–255. https://founders.archives.gov/ documents/Jefferson/01-40-02-0178-0002 https://founders.archives.gov/documents/ Jefferson/03-15-02-0141-0001 59  Cited by John R. Vile, The First Amendment Encyclopedia. “The 1797 Treaty of Tripoli.” Access at: https://www.mtsu.edu/first-amendment/article/2144/1797-treaty-of-tripoli

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than that He, the Infinite Father, expects or requires no Worship or Praise from us, but that he is even infinitely above it.60

Franklin’s religious views underwent changes during his life. Most interesting is the above hierarchical polytheism. The Supreme Being created lesser gods for the various planetary systems throughout the cosmos. This inspires and increases the one thing willed by the Supreme God—our happiness. Concluding Comments It is striking the extent to which the Founders were under the spell of the Enlightenment and their European spokespersons. Here are the major characteristics of the Enlightenment. First, dedication to the use of reason and the importance of education; Second, all were advocates of representative or Republican government; Third, their invention of the idea of progress through the application of science to everyday life, famously the contents of the multi-volume Grand Encyclopedia. Note the scientific work undertaken by Franklin and Jefferson. John Adams, in the fourth volume of his A Defence, states:  The Arts and Sciences, in general, during the three or four last centuries, have had a regular course of progressive improvement. The invention in mechanic arts, the discoveries in natural philosophy, navigation, and commerce, and the advancement of civilization and humanity, have occasioned changes in the condition of the world and human character which would have astonished the most refined nations of antiquity.61

Fourth, Enlightenment thinkers were hostile to religions, including Christianity and its ecclesiastic leaders. Fifth, they recognized the imperfect nature of human beings and the important role of education in mollifying nature’s handiwork.

60  [Original source: The Papers of Benjamin Franklin, vol. 1, January 6, 1706 through December 31, 1734, ed. Leonard W.  Labaree. (New Haven: Yale University Press, 1959), pp.  101–109.] Access at: https://founders.archives.gov/documents/Franklin/ 01-01-02-0032 61  A Defence …, IV (1787–1788), edited by Charles Francis Adams, page 283. Quoted by Peter Gay, The Enlightenment: An Interpretation. Volume II: The Science of Freedom (New York: Alfred A. Knopf, 1969), 98.

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In the concluding remarks to the second volume of The Enlightenment: An Interpretation, Peter Gay rightly measures the achievement of the Federalist authors in particular: the Federalist has achieved, and fully deserves immortality as a classic in the art of politics. It is also a classic work of the Enlightenment, a worthy successor to Montesquieu’s De L’esprit des lois and a worthy companion to Rousseau’s Contrat social. The three authors of The Federalist, known by their collective signature, “Publius,” sound all the great themes of the Enlightenment … the dialectical movement away from Christianity to modernity; the pessimistic though wholly secular appraisal of human nature coupled with an optimistic confidence in institutional arrangements; the pragmatic reading of history … the eloquent advocacy of practicality.62

Yet, Peter Gay notes with some sadness: The world has not turned out the way the philosophes wished and half expected that it would. Old fanaticisms have been more intractable, irrational forces more inventive than the philosophes were ready to conjecture in their darkest moments. Problems of race, of class, of nationalism, of boredom and despair in the midst of plenty have emerged almost in defiance of the philosophes’ philosophy. We have known horrors … that the men of the Enlightenment did not see in their nightmares. Yet … none of this impairs the permanent value of the Enlightenment’s humane and libertarian vision, or the permanent validity of its critical method63

 Gay, The Enlightenment: An Interpretation, II, 563.  Ibid, 567.

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CHAPTER 7

Constitutional Topics in the Jefferson/ Madison Correspondence, Common Fears and Worries in the Correspondence and the Federalist Papers

Whereas the previous chapter brought to light constitutional thinking on specific topics in Aristotle and the Founders, this chapter will group together topics in the correspondence of Thomas Jefferson and James Madison, together with expressions of concern found in the Federalist papers. While the Federalist papers were appearing in New York newspapers, an extensive correspondence was taking place in the background, not available to the public. The correspondence topics include constitutional considerations of the legislative, executive, and judiciary branches, as well as the relation of national to State powers. Both Federalist and background conversations focus on sovereignty and express two primary fears and worries, States and insurrections.

American Government Rests on the Sovereignty of the People The first volume of the Jefferson/Madison correspondence may be viewed as a behind-the-scenes exchange of ideas, critical comments, and the like, on what was publicly taking place as the Federalist papers were appearing. There is a strong emphasis on the ultimate, underlying sovereignty of the people. Madison penned a “preface” to the “We the people” © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_7

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preamble, and it states that, “all power is originally vested in, and consequently derived from the people,” and government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, inalienable, and indefeasible right to reform and change their government, and whenever it be found adverse or inadequate to the purpose of its institution.1

This “preface” was eventually discarded due to the appended Bill of Rights, which established safeguards for the people. A comment by Jefferson suggests that government officials take an oath to the people and not “that Constitution.”2 Jefferson held that in every new generation of Americans the Constitution should be re-examined for its relevance to that generation. The proposed Constitution and any future Constitution which may be adopted Whether by adopting it in hopes of future amendment, or, after it has been duly weighed and canvassed by the people, after seeing the parts they generally dislike and those they generally approve, to say to them ‘We see now what you wish. Send together your delegates again, let them frame a constitution for you omitting what you have condemned, and establishing the powers you approve. Even these will be a great addition to the energy of your government.’3

Jefferson questions whether one generation has the right to bind another. His answer is clear enough: no society can make a perpetual constitution or even a perpetual law. The earth belongs always to the living generation … Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.4

 RL, Volume 1, 597. Editor James Morton Smith quoting Madison.  RL, 513. 3  RL, 514. 4  RL, 634. 1 2

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That the newly proposed Constitution rests in the final analysis on the goodness and good judgment of the people was the firm belief of Benjamin Franklin. Aged and in poor health, the much-revered Franklin spoke to the delegates at the Convention. I agree to this Constitution with all its faults, if they are such; because I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.5

Comments on the Senate, House of Representatives, and Executive  Running through the constitutional discussions of John Adams and the correspondence of Thomas Jefferson and James Madison is the belief that the members of the Senate, which represent the States, will be the elite of the two legislative branches. The Senate is “the great anchor of the Government.”6 The House of Representative, on the other hand, will represent the common man, and will be filled with commoners. Madison held that the “real danger” to Republican government comes from the House of Representatives.7 This is why members of the Senate should have six-year terms, instead of the two years for representatives:  The term of two years is too short. Six years are not more than sufficient. A Senate is to withstand the occasional impetuosities of the more numerous branch [the House of Representatives]. The members ought therefore to derive a firmness from the tenure of their places. It ought to supply the defect of knowledge and experience incident to the other branch [the House of Representatives]. There ought to be time given therefore for attaining the qualifications necessary for that purpose.8

Jefferson was greatly concerned with allowing a constitutional provision allowing unlimited terms for the President. He argued for “rotation.” He was concerned that “if once elected, and at a second or third election 5  Online: http://www.benjamin-franklin-history.org/constitutional-convention/Italics used in the web site. 6  RL, 497. 7  RL, 556. Madison is commenting on Jefferson’s Drafts of a Constitution for Virginia. 8  Ibid., 555.

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outvoted by 1 or 2 votes, he will pretend false votes, foul play, hold possession of the reins of government, be supported by States supporting him”.9 Engaged in prolonged committee work for the Convention, Madison writes Jefferson that The Convention consists now as it has generally done of Eleven States … The term of its dissolution cannot be more than one or two weeks distant. A Government will probably be submitted to the people of the states consisting of a President clothed with executive power; a Senate chosen by the Legislatures, and another house chosen by the people of the states jointly possessing the legislative power and a regular judiciary establishment.10

On September seventeenth, thirty-nine Convention delegates signed the new Constitution, George Washington being the first to sign. Ratification was protracted over a period of over two years. Five States led the way in ratification, Rhode Island was last to ratify in 1790. The Constitution had to overcome several difficulties. Madison cites four major worries: This ground-work being laid, the great objects which presented themselves were 1. To unite a proper energy in the Executive and a proper stability in the Legislative departments, with the essential characters of Republican Government. 2. To draw a line of demarcation which would give to the General government every power requisite for general purposes, and leave to the States every power which might be most beneficially administered by them. 3. To provide for the different interests of different parts of the union. 4. To adjust the clashing pretensions of the large and small States. Each of these objects was pregnant with difficulties … It is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.11

The fact of a wide range of interests and feelings, especially in such an extensive society, prevents pure or simple democracy. “We know,” Madison asserts, that no society ever did or can consist of so homogeneous a mass of citizens … In all civilized societies, distinctions are various and unavoidable. A  RL, 513.  RL, 490–491; Madison to Jefferson, Philadelphia, Sept. 6, 1787. 11  Rl, 496. Madison to Jefferson, Oct. 24, and Nov. 1, 1787. 9

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distinction of property results from that very protection which a free government gives to unequal faculties of acquiring it. There will be rich and poor; creditors and debtors; a landed interest, a monied interest, a mercantile interest, a manufacturing interest.12

Major Fears and Worries: The States No consideration was more disturbing to Jefferson and Madison than the sovereignty of the States. Madison had a long-standing condemnation of too much power given to the States by the Articles of Confederation and too little to a national government. Later, in the passage above which refers to the Government submitted to the people of the States, Madison retains skepticism about the States. He worries that “the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments.”13 Of the alternatives supported by various members of the Constitutional Convention, one was the abolition of states; another was the indefinite power of the federal legislature together “with a negative on the laws of the States;”14 another was the limited power of the Congress without the negative. Madison was in favor of the negative, but the majority of delegates rejected it. His reasons for strict control of the states are quite convincing. He wrote Jefferson that As I formerly intimated to you my opinion in favor of this ingredient [the negative], I will take this occasion of explaining myself on the subject. Such a check on the States appears to me necessary 1. To prevent encroachments on the General authority, 2. To prevent instability and injustice in the legislation of the States.15

The negative is necessary as a check on the subordinate authorities encroaching upon the general authority, otherwise the unity of the system, that is, the nation, would be destroyed. Madison likens the new Constitution to a system of feudal republics. And history teaches us that  RL, 501  RL, 491 14  RL, 498. 15  RL, 498. 12 13

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“In all of them [there is] a continual struggle between the head and the inferior members, until a final victory has been gained in some instances by one, in others, by the other of them.”16 Madison stated that Over and above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases whatsoever on the local legislatures [is necessary]. Without this defensive power experience and reflection have satisfied me that however ample the federal powers may be made, or however Clearly their boundaries may be delineated, on paper, they will be easily and continually baffled by the Legislative sovereignties of the States.17

So strong was his adversity to the States that he recommended changing representation in the Senate from election by State legislatures to election by the people themselves.18 In a letter to George Washington Madison argues for his “new system” which would give power to the national government “in all cases which require uniformity.”19 He states that, “a negative in all cases whatsoever on the legislative acts of the States … appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions.”20 In another paragraph in this letter Madison holds that to give government “proper validity and energy, a ratification must be obtained from the people, and not merely from the ordinary authority of the Legislatures.”21 In their correspondence, Thomas Jefferson did not comment on this, but “prima facie” did not like the idea of a universal federal negative on the States. Rather, he mused, it would perhaps be better to have federal judicial review of state judicatures. It is best to fix a small hole by a patch, rather than fixing the small hole by covering the entire garment.22 Jefferson described the State legislatures as tyrannical and looked upon them as causing problems in the years to come. He stated that, “The  RL, 499.  RL, 470. 18  Ibid. 19  Founders Online, “James Madison to George Washington, April 16, 1787.” Access at: https://founders.archives.gov/documents/Madison/01-09-02-0208 20  Ibid. 21  Ibid. 22  RL, 480. 16 17

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tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in its turn, but it will be at a remote period.”23 The danger of encroachment is greater on the part of the States than the national government. The States are intrinsically disposed to value local culture more than national concerns. For anyone who thinks the Supreme Court should have the power of the negative over State laws, Madison notes that it is more difficult to scuttle a State law having already been passed than it is to prevent its passage in the first place.24 The force of the argument here clearly goes to Madison and not Jefferson. General or universal interests are the province of the national government, while the local and the particular are the province of State legislatures.25 States are limited to matters pertaining to the lives, liberties, property, order, and prosperity of its citizens.26 States are always permeated by a local spirit, and their decisions are not often directed towards “the national prosperity and happiness, but on the prejudices, interests, and pursuits of the government and people of the individual States.”27 The other central concern is that the actions of the States may encroach upon the rights of individuals. First, the mutability of State laws is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most steadfast friends of Republicanism. I am persuaded that I do not err in saying that the evils issuing from these sources contributed more to that uneasiness which produced the Convention.28

Although Madison is somewhat vague about “mutability,” it seems that differences in laws across states could theoretically make what is legal in one state illegal in another. Another possibility is too frequent a change in State laws. The other interpretation of what he intends is the problem of a majority squashing the rights of a minority. What would restrain a majority 23  RL, 588. More than two centuries passed before we installed autocrat Donald Trump in office. 24  RL, 500. 25  Federalist No. 10, 66; In Federalist No. 14, 77, Madison says that “the general government … Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic” 26  Federalist No. 45, 188. 27  Federalist No. 46, 190. 28  RL, 500.

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in a State from oppressing a minority--a prudent regard for private or partial good as a component of the general and permanent good of the entire society? Experience, however, shows that individuals have little regard for this. The motive of “Respect for character … is not found sufficient to restrain individuals from injustice.”29 Religious motives are not only impotent, but “Even in its coolest state, it [religion] has been more oftener a motive to oppression than a restraint from it.”30 The only answer to the question posed is that The great desideratum in Government is, so to modify the sovereignty as that it may be sufficiently neutral between different parts of the Society to controul one part from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the entire Society … In the extended Republic of the United States, the General Government would hold a pretty even balance between the parties of particular States.31

Even though State sovereignty was considered a threat to the new Republic, Jefferson, Madison and others knew that more restrictions on State legislatures in the proposed Constitution would result in the Constitution’s defeat. Ratification would not be possible.

Major Fears and Worries: Insurrection A second central concern of Jefferson and Madison, as well as Hamilton, in the Federalist papers, was the threat posed by insurrections against American governments. Their concern was based upon an insurrection which took place in 1787–1788  in Massachusetts. Shay’s Rebellion, named after Daniel Shay, a leading insurrectionist, took place as the result of debts owed by former revolutionaries, most of whom had become farmers after the war. Many had not received promised soldiers’ pay, and their farms were being seized for debts owed. They had lost the ability to buy on credit for farm supplies. They began to form crowds to block judges from ruling in debtors’ courts. The rebellion began to escalate in armed attacks by the farmer-soldiers. The Massachusetts legislature responded by passing bills allowing sheriffs to kill insurrectionists, and at  RL, 501  RL, 502 31  Ibid. 29 30

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one point habeas corpus was suspended. The governor of Massachusetts, James Bowdoin, created a private army of 4400 to quell the insurrection, and it was successful in doing so. Many scattered to other states. Boston passed a “Disqualification Act,” which prevented former insurrectionists from serving on juries, teaching, holding public office, or engaging in certain business practices. One of the Founding Fathers, Samuel Adams, argued for the execution of the insurrectionists. When John Hancock became newly elected governor of Massachusetts, he pardoned many who had participated, and granted a temporary suspension of debt payments until economic recovery could take place. It is clear from our purview of the Federalist papers that Alexander Hamilton was an advocate of a strong national government. He held that insurrections should be quelled by force proportionate to the harm done. “An insurrection,” he says, “whatever be the immediate cause, eventually endangers all government.”32 In Federalist No. 43 Madison has a good deal to say about insurrection. In enumerating the powers of the new government, one is the guarantee to protect each and every State “against invasion” and “domestic violence.”33 The national government has the right to defend itself, and no one other than the great Montesquieu supported national authority as more perfect than governments lacking a central authority, such as confederated Germany. Equally important is protection offered by the national government from domestic violence: “A protection against domestic violence is added with equal propriety … A recent and well-known event among ourselves has warned us to be prepared for emergences of a like nature.”34 Just as a State may protect the magistrates/courts from an insurrection by, say, a majority in a district or county, “ought not the federal authority … support the State authority?”35 Madison thinks, again citing Montesquieu, that an insurrection in one State may be quelled by a sister State. The federal authority may step in to quell an insurrection only when need be, which is a case in which the number of insurrectionists “bear some proportion to the friends of government.”36 Madison even imagines the number of citizens in a State being outnumbered by the number of persons, that is, non-citizens. This  Federalist No. 28, 122.  Federalist No. 43, 177. 34  Federalist No. 43, 178. 35  Ibid. 36  Federalist No. 43, 179. 32 33

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might happen by an increase in alien residents, adventurers, “or of those whom the constitution of a State has not admitted to the rights of suffrage.” In an intentionally murky sentence, he refers to Negro slaves (without naming them) who might become part of an insurrection: an unhappy species of population abounding in some States, who, during the calm of regular government, are sunk below the level of men, but who, in tempestuous scenes of civil violence, may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.37

Further justification for federal intervention to quell insurrection is the fact that “certain parts of the State constitutions … are so interwoven with the federal Constitution, that a violent blow cannot be given to the one without communicating the wound to the other.”38 John Adams in his A Defence likewise cites with praise Montesquieu’s view that “The political liberty of the citizen, is a tranquility of mind, arising from the opinion each person has of his safety.”39 Both Jefferson and John Adams discerned some good coming out of Shay’s Rebellion. Jefferson from afar wrote Abigail Adams “I like a little rebellion now and then. It is like a storm in the Atmosphere.”40 And to Madison he wrote that “I would rather have a disturbed liberty than a quiet slavery,” and he claims that a “little rebellion” prevents “the degeneracy of government, and nourishes a general attention to the public affairs.”41 John Adams thought it increased the chances of creating a Union: “This Commotion will terminate in additional strength to Government.” In what did this “littleness” consist? It consisted of short-lived acts of civil disobedience which evolved into a short-lived armed conflict, basically confined to one state, Massachusetts.

 Ibid.  Federalist No. 43, 178. 39  See above, Chap. 2. 40  The Adams-Jefferson Letters. The Complete Correspondence Between Thomas Jefferson and Abigail and John Adams. Lester J. Cappon, editor. 2 Volumes. (Chapel Hill, North Carolina: The University of North Carolina Press, 1959), Volume 1, 173. 41  RL, 461. 37 38

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In our time, the January 6, 2021 insurrection was an armed assault against the United States federal government in an attempt to prevent ratification of fair election results. It is certain that this would not have been viewed as “little” or beneficial by the Founders.

CHAPTER 8

Bill of Rights I: The Establishment Clause and the Right to the Free Exercise of Religion

The Constitution is exceptionally brief in regard to religion. There are only two references to religion, one in the Constitution and the other in the Constitution’s appended Bill of Rights. Article VI. 3 prohibits a religious test as a requirement for qualification for any federal or state office or any position of public trust. The other reference is the famous (and for some infamous) religion component of the First Amendment, which reads: Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….

Priority of the Establishment Clause  The fact that the Establishment Clause is stated first is not an accident. Not only is it first in the order of exposition but first in the order of logic and first in the historical awareness of the framers. To see this, imagine that Free Exercise comes first. If this were the case, the Establishment Clause would be null, for the government could decree that, say, Christianity is the national, federally supported religion, with the caveat that individuals may worship any religion according to their conscience. But if the Establishment clause is logically first, then free exercise of religion would be unrestricted within and only within the domain allowed by that Establishment Clause. 

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. H. DeArmey, The Constitution of the United States Revised and Updated, https://doi.org/10.1007/978-3-031-40426-9_8

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Revision and Additions to the Establishment and Free Exercise Clause  Given the immense population growth and spiraling immigration numbers since the Founding, the array of diverse beliefs and practices by groups and individuals is innumerable. This has led to difficulties for the Supreme Court in reaching fair and just rulings. When does the free exercise of religion intrude upon, violate the Establishment Clause? To what extent should the law allow accommodations or exemptions for a religious practice? Here are some problematic cases: Mrs. Sherbert, a Seventh Day Adventist, was fired from her job because her religion prohibited working on Saturday, and the State denied her unemployment benefits. Was this a violation of free exercise?1 A tradition of handling poisonous snakes at church services in Tennessee was considered illegal after a law was passed against this practice. Was this state law a violation of Free Exercise?2 A Native American man was fired from his job when his employer discovered that he was taking a traditional, ceremonial drug, peyote. Was this a violation of Free Exercise?3 Was the placing of the Ten Commandments on a wall in a State building a violation of the Establishment Clause?4 Is a city paying for a Nativity Scene not on government property a violation of the 1  Sherbert v. Verner, 374 U. S. 398 (1963). The Supreme Court ruled Mrs. Sherbert had suffered a “substantial burden” for her religious freedom, something no person should undergo. 2  Swann v. Pack 527 S. W. 2d99 (Tenn. 1975) Reverend Pack lost the case, the Court ruled that such practices endangered lives, with children moving about, and church leaders in a state of trance. 3  Employment Division v. Smith 494 U. S. 904 (1990). Al Smith, aka Red Coyote, lost the case; the Supreme Court majority decision ruled that the state of Oregon had an overriding interest in prohibiting illegal drugs. See Martha Nussbaum’s analysis of this case, and her claim—correct claim—that the court erred. Peyote was used for ceremonies only. Smith clearly suffered a “substantial burden” in being denied participation in his tribe’s ceremonies. Nussbaum, 146–148. Federal law decriminalized the ceremonial use of peyote in 1994. See The “American Indian Religious Freedom Act Amendments of 1994.” Access at: https:// www.congress.gov/103/bills/hr4230/BILLS-103hr4230enr.pdf 4  ACLU of Kentucky, 545 U.  S. 844 (2005). The Court used the “secular purpose” requirement, which was not paramount.

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Establishment Clause since the money was taxpayer money?5 Is a state or city providing school busing for sectarian as well as public schools a violation of the Establishment Clause?6 Variations on these kinds of cases and many additional kinds as well, seem endless. Judicial Twelve Tests  A brief examination of the types of reasons which justices use to adjudicate religion cases is instructive. These constitute their methods, tests, or criteria:  1. Nonpreferentialism, used by Chief Justice Rehnquist. Government cannot prefer one religious sect over another. This method is lacking because-it doesn’t prevent the government from preferring religion in general over nonreligion. 2. Free exercise of Religion cannot threaten or harm the State or its citizens. 3. Examine whether or not an act or law has a Secular purpose and secular effect that neither advances nor inhibits religion (Justices Clark and O’Connor). 4. Government cannot send citizens a message that some citizens are not fully equal to others (Justices Souter and O’Connor). 5. What would a “reasonable observer” say about a case (O’Connor)? 6. The History and Ubiquity of a religious practice may play a role in judicial decisions (O’Conner). 7. Cannot have reference to a particular religion (O’Connor). 8. Must have a minimal religious content (O’Conner). 9. No reference to worship or prayer (O’Connor) 5  Lynch v. Donnelly 465 U. S. 668 (1983). Pawtucket, Rhode Island has a park owned by a nonprofit organization in the middle of a shopping district. At Christmastime the park has many secular displays—Santa Claus, Season Greetings, etc., and a Nativity Scene. An ACLU challenge to the constitutionality of the Nativity scene was brought forward, and the Supreme Court ruled 5–4 that the display was constitutional, on the grounds (citing Justice O’Connor) that having it there did not send a message that the government was endorsing or disapproving of religion. It seems clear to this author that, if the park was not government property, then the nativity scene was constitutional. Moreover, taxpayer money had already been spent years ago on the figures in the scene. The correct action for the city of Pawtucket would be to donate the nativity to whomever owns/runs the park. 6  Everson v. Board of Education 330 U. S. 1 (1947). The Supreme Court ruled 5–4 that busing school children to both public and sectarian schools was constitutional, for the primary purpose was to facilitate the education of children, not religious instruction.

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10.  Accommodations or exemptions from law or statute may be acceptable if a law or statute puts a substantial burden on a religious person. 11. Coercing a religious practice violates the Establishment clause, and non-coercive measures may do so as well.7 (Justice Black) 12. Cannot entangle government in matters involving religion. Perhaps the most thoughtful and significantly comprehensive statement in defense of the Establishment Clause is that of Justice Black. The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”8

The only lacuna in this excellent statement would be filled by this: “Neither a state nor the Federal government can pass laws which are anti-­ religious.”9 Black also notes that it is impossible to completely separate church and state. Water, sewer, fire, and police protection, etc., are government agencies also serving churches. Primary rulings appealed to again and again by the Courts are these: The Sherbert case ruled that a “substantial burden” should not be placed on anyone attempting to practice their religion, unless State laws absolutely require it.10 The Everson case argued by Justice Black sets out the principles of indirect aid and that of personable choice: money can be 7  In Engel v. Vitale, 370 U.  S. 421 (1962), a case involving mandatory school prayer, Justice Black argued that a violation of the Establishment Clause can take place without coercion. 8  Everson v. Board of Education, 330 U. S. 1 (1947). 9  Anti-religious is distinct from non-religious. 10  Sherbert v. Verner, 374 U. S. 398 (1963).

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given to parents who then can choose among school options, including sectarian schools.11 The Lemon test Is three-pronged—the statute must have a secular legislative purpose, its effect neither hinders nor advances religion, and the statute must not create an excessive government entanglement in religion.12 The principles used in the new Constitution’s revisions and additions to the original First Amendment are these interconnected principles: Neutrality, Equality, and Personal Choice. Laws and statutes must be neutral in regard to religion, neither favoring nor disfavoring a religion, religions in general, non-religions, or anti-religions. Citizens of the United States are equal as citizens. Citizens are free consistent with everyone else’s freedom, and citizens are equal in being recipients of the same applications of justice. From the Founding forward to the present, the United States has repudiated citizen hierarchies. If the government favored religion, then those outside the parameters of that religion would be second-class citizens. One must not forget James Madison’s wise comment in “Memorial”: equality … ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If “all men are by nature equally free and independent,”—all men are to be considered as entering into Society on equal conditions, as relinquishing no more, and therefore retaining no less, one than another, of their natural rights.13

Personal choice is multi-faceted. People are free to choose their religious beliefs and practices. People are free to seek accommodations or exemptions from laws which to them disable their religious practices. Parents are free to choose the schools to which they send their children, and free to use vouchers, if any, for that choice.

 Everson v. Board of Education…  Lemon v. Kurtzman 403 U.  S. 602 (1971. Access at: https://supreme.justia.com/ cases/federal/us/403/602/ Rhode Island’s 1969 Salary Supplement Act provides for a 15% salary supplement to be paid to teachers in nonpublic schools. This would require State monitoring of whether teachers were presenting religion to their students or non-religious material. This “entangles” government with religion. 13  “Memorial and Remonstrance Against Religious assessments.” (1785). 11 12

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There are six additions in the updated Constitution which are necessary for clarity, neutrality, equality, fairness, and choice. Under Bill of Rights, Article I, Sections 1.2, 1.3, 1.4; 2.1, 2.2: 2 Federal and State governments may favor neither a particular religion, nor a group of religious sects, nor religion in general, nor non- or anti-religion. Federal and State governments shall maintain neutrality in regard to religion. 3 Free Exercise of religion must take place within the limits of what is fundamental to morality and common law. Unacceptable religious practices such as enslavement, cannibalism, forced adult participation, illegal drug use or any practice which harms citizens are forbidden. 4 Businesses in the public marketplace shall not discriminate on religious grounds. Section 2. 1 Congress shall make no law establishing a religion. Establishing a religion occurs when a law(s) or Congressional action(s) favors a particular religion, a group of religions, or religion in general, thereby making its members privileged over non-­ members and creating hierarchical inequality among citizens. 2 States may establish vouchers for the education of children, allowing parent recipients to choose public, non-sectarian private, or sectarian schools. Firmly retaining the equality of citizens and ban on government favoritism cited in Section 2. 1, the monetary amount will be the same for all parent recipients, multiplied by the number of children in the household. Federal entitlement vouchers for children with special needs are applicable to public, non-­ sectarian private, and sectarian schools. A final comment about the role of equality in determining cases involving religion: The principle of equality is analyzed and defended throughout Martha Nussbaum’s book, Liberty of Conscience. She notes that separation of church and state “is about equality and equal respect.” If there were a government-favored religion, that would be “an act that

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immediately makes outsiders unequal.”14 In addition, constitutional prevention of established religion protects minority religions from a majority’s pressures and domination. Equality is also the central concept underlying the First Amendment clause in Religion and the Constitution, by Christopher L. Eisgruber and Lawrence G. Sager. For them, religious freedom … is above all shaped by concerns of equality. The model, which we call “Equal Liberty,” has three distinct components. First, it insists in the name of equality that no members of our political community ought to be devalued on account of [their] spiritual foundation. Second, and again in the name of equality, Equal Liberty insists … we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities. Finally, Equal Liberty insists on a broad understanding of constitutional liberty generally. … rights of free speech, personal autonomy, associative freedom, and private property … allow religious practice to flourish.15

A Brief History of Religious Freedom From the Christian Colonies to the Repudiation of Established Religion  The Establishment Clause is first in the historical experience of the Framers. Above all else in their historical memory, they were repulsed by the brutal curtailment of religious worship, in the name of a national religion, in England and other countries, and were determined not to let that happen in the new United States of America. Moreover, they were also repulsed by the theocracy established by the Puritans in Massachusetts Bay, and the punishment of dissidents and dissenters. To clarify the background to the thinking of the Founders in regard to religion, the brief history below will establish that (1). Theocracies, whether European countries or in cities in the colonies, are dreadful. They restrict freedom, create fears and anxieties in the inhabitants, and allow for brutal torture and even death sentences. Ecclesiastic figures themselves are 14  Nussbaum, 12. An excellent review of Nussbaum’s book is “Establishing Inequality, Review of Liberty of Conscience” by Martha C. Nussbaum,” Gene R. Nichol, Michigan Law Review, Vol. 107 (2009), 913–930. 15  Christopher L.  Eisgruber and Lawrence G.  Sager, Religion and the Constitution (Cambridge, Massachusetts and London: Harvard University Press, 2007), 52.

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readily corrupted. (2) Christianity is far and away the dominant religion in the colonies—religious and cultural pluralism were far into the future. (3) The rationalism and liberalism of Thomas Hooker and Roger Williams opened the door to the free expression of religious beliefs and practice. (4) Oddly, the emotionalism and anti-rationalism of the itinerant preachers of the Great Awakening fostered a counter movement dedicated to rational thought. (5) The arrival in the colonies of Enlightenment thinking (Locke, Newton, Bacon, and others) changed everything, leading to the repudiation of any established religion, including Christianity. (6) The most important framers of the United States Constitution, in particular John Adams, Thomas Jefferson, and James Madison, created a framework of laws entirely humanistic—no references to a God. The Pilgrims The first groups to arrive on the eastern seaboard—the Pilgrims and the Puritans—did so with religious freedom as a primary motive, freedom from established national churches, specifically the Church of England. The Pilgrims, the earliest group to create a colony, had been subject to religious persecution by English magistrates. It was unlawful for a person not to attend services of the Church of England, and violators were severely punished—imprisoned, beaten, and/or their property confiscated. In northern England, farmers and other villagers were holding secret prayer meetings, focusing on readings from the Bible. They followed Martin Luther’s insistence that each person can be his or her own priest by reading the Bible. These Pilgrims—called “Separatists” because they separated from the Church of England—fled England to Holland, only to find that they could not make a living there. So, they contracted with an investment company to pay for the voyage to the New World on the Mayflower. The 101 passengers aboard the Mayflower included workers, merchants, and indentured servants who were not part of the Separatist group. Due to bad weather, the Mayflower was blown north to Cape Cod, landing on November 11, 1620. Those on board who were not Separatists protested that they were not obligated to honor the contract with the Virginia Company, since the ship landed far north of Virginia. In the ensuing and often heated debate the Pilgrims drew up an agreement—the Mayflower Compact—whose intent was to bring the disputants together under a common canopy of a few rules. Separatists and non-separatists alike agreed to self-governance while retaining their loyalty to King James.

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They agreed to create their own laws, constitutions, and offices. Pilgrims abhorred the ecclesiastic hierarchies and corruptions in the Church of England. They wanted nothing to do with bishops, archbishops, signing with the cross, ceremonial priest robes, and other trappings. They wanted a direct, religious experience. Their church structure was democratic, although individual religious expression was tightly controlled. Deviators and dissenters who do the work of Satan were banished, whipped, or even hung.16 The laity chose their own clerics and teachers. Each church was independent of other Pilgrim churches—“Congregationalism.” Each village or town had its own church. Membership in the church was simple— it simply required that you confess your Christian faith and its leader, Jesus Christ. Their “primitive congregationalism” is the first flicker or foreshadowing of a later robust democracy created by the Framers. The Puritans  The Puritans came to the New World for two reasons, one economic, the other religious. They wanted more economic freedom and a greater chance at prosperity than the King and English aristocracy allowed. Equally important was the desire to stay within the Church of England but in a “purified” form. They were therefore “non-separating.” The religion they brought with them was a modified version of Calvinism. The Puritans accepted the five-point summary of the Synod of Dort enacted in Dordrecht, the Netherlands in 1618–1619. The first point was the Total Depravity of Man. Through the Fall or original sin of Adam, man’s intellect was substantially weakened, along with this will-power, which became corrupt. Intuitive knowledge of nature was lost. Second, The Doctrine of Unconditional Election stated that God before creation selected some men for salvation; others were doomed to eternal damnation. This doctrine was necessary to glorify God and demonstrate his sovereignty. Third, According to Prevenient and Irresistible Grace, the Holy Spirit operates on the soul. You are reborn, and this regeneration cannot be resisted. Fourth, the effect of Perseverance of the Saints was that God’s grace is regeneration, and this is permanent. If it were not permanent, if it ‘wears off,’ God’s power would be limited (Once a saint, always a saint); Fifth, Limited Atonement, according to which Jesus Christ died for the 16  Vernon L. Parrington, Main Currents of American Thought, Volume I, 1620–1800, The Colonial Mind (New York: A Harvest Book, Harcourt, Brace, and World, Inc., 1954), 17. Some scholars say that the Framers were influenced by the democratic elements in the Iroquois Federation, which Benjamin Franklin admired.

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Elect only. All of this would later be repugnant to the Founders, who embraced happiness and progress.  There were two ways in which the Puritans differed from orthodox Calvinists. First, they had a covenant or federalist Theology. Congregations were covenants agreed upon between Puritans and God. The founding of the colonies in the new land was also seen as part of the covenant. Second, they differed from Orthodox Calvinism in “the Visibility of Election by Grace.” The Elect will behave virtuously but not completely, owing to the fact that their will is weak, and their intellect is clouded by the Fall. Orthodox Calvinism held that only God knows who is Elect. But the Puritans held that only God knows with certainty who is Elect. But men can know with a high degree of probability who is Elect. By careful investigation, cross-examination and interrogation, by listening to the account of the Conversion experience, and by observing behavior (including spying and surveillance), church members can know who is Elect and belongs to the “Church of Saints.” In their desire for economic freedom and greater prosperity the Puritans held that prosperity itself was a sign of sainthood, and from this they bequeathed to later generations the work ethic. The pressure to behave properly was intense. Misconduct meant you were damned. God is just beyond the veil and is watching you. In his classic study of the colonial mind Parrington states that the Puritans left a deep scar on the early history of New England: In New England … by virtue of rigid suppression of free inquiry, Calvinism long lingered out a harsh existence, grotesque and illiberal to the last. In banishing the Antinomians and Separatists and Quakers, the Massachusetts magistrates cast out the spirit of liberalism from the household of the Saints.17

The Great Awakening  Eventually the pressure was too much for Puritans to bear. Itinerant preachers like George Whitefield (1714–1774) and James Davenport (1716–1757) appeared, traveling from town to town, holding revivals, drawing great crowds and emphasizing emotional displays as the test of conversion to Jesus Christ. At Oxford, Whitefield had suddenly overcome spiritual malaise while alone in his dorm room. His intense emotional conversion experience led him to believe that instant conversion was possible for all men, as opposed to regeneration by slow steps. Drooling, foaming at the mouth, rolling in the dirt, babbling  Parrington, 15.

17

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nonsense at these revivals was brought about by the emotional style and content of these sermons. One description of their sermons appeared in a Boston newspaper in September, 1741, in which the author says of the revivalists that  their main Design in Preaching seems not so much to inform Men’s Judgments as to terrify and affright their Imaginations, and by awful Words and frightful Representations, to set the Congregations into hideous Shrieks and Out-cries … Some will faint away, fall down upon the Floor, wallow and foam.18

The Great Awakening lasted about five years. It came to an end slowly under caustic criticism by those voicing admiration for reason over emotions. Articles defending Reason began to appear in newspapers and in sermons. John Caldwell of Londonberry, New Hampshire, said of revival preachers, “They lay aside Reason, the Candle of the Lord.”19 One clever soul (imitating Jonathan Swift) published a spoof of the irrationalists in the Boston Evening Post of June 7, 1742, an article entitled “A Modest Proposal for the Destruction of Reason.” The author, describing Reason as a “Monster,” endeavors to “point out the Evils arising from the free Use of it.”20 The author concludes by saying that “I am determined that there shall not be a Reasonable Creature left. … there seems to be an Inclination in some of my Fellow Creatures to assist me herein.”21 The claims of emotional conversion by Whitefield and others prompted the great Puritan preacher and philosopher Jonathan Edwards to write his Treatise Concerning the Religious Affections, an attempt to establish what the true religious emotions are. In time the revivalists got control of the leadership at Northampton, and Edwards, trying to tighten control over the church membership, was fired and run out of town. From 1751 to 1758 he lived at Stockbridge, Massachusetts, as a missionary to indigenous peoples. What a tragic figure! The greatest philosopher of the colonial period, abandoned by his flock, his church, and his family tradition lost, with no prospects beyond life in the wilderness. Relatively isolated, Edwards was able to concentrate and produce four major works in this 18  From The Boston Post-Boy of September 28, 1741. Cited by Claude M. Newlin, Philosophy and Religion in Colonial America (New York: The Philosophical Library, 1962), 78. 19  Quoted by Newlin, 80. 20  Quoted by Newlin, 82. 21  Ibid., 84.

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period: Enquiry into the Freedom of the Will (1754), The Doctrine of Original Sin Defended (1758), The Nature of True Virtue (1765), and The End For Which God Created the World (1765). In 1757 Edwards’ exile came to an end when a rider on horseback arrived with a letter calling him to take over the presidency of Princeton, the foremost Puritan college. But alas, Edwards reached Princeton during a smallpox epidemic, and he died from attempted inoculation on March 22, 1758. The Independents  In addition to separating and non-separating congregations, there were independents who carried the torch of liberty and free expression of religious beliefs. Two outstanding independents were Thomas Hooker (1586–1647) and Roger Williams (1603–1683).  Thomas Hooker was a yeoman preacher at Hartford, Connecticut, whose influence on the younger generation of preachers was enormous. Reverend William Hubbard, a preacher and historian at Ipswich, Massachusetts, stated that, “After Mr. Hooker’s coming over, it was observed that many of the freemen grew to be very jealous of their liberties.” This “high priest” of Hartford stated in a remarkable sermon on May 31, 1638, that, “the foundation of authority is laid, firstly, in the free consent of the people.”22 Hooker stood for the compact theory of the state based on the will of the people, the state being a public service corporation.23 Roger Williams was the most outstanding defender of liberty in the early history of colonial New England. A man whose speeches, writings, and behavior stood as an example of a free society of equal citizens devoted to truth and peace. He was born into a family of English merchants, and grew up in London—a London where those deviating from the Church of England’s doctrines were sometimes burned at the stake. A brilliant and morally sensitive man, he earned a degree at Cambridge in 1627. In the course of his life, he had mastered Latin, Greek, Hebrew, French and Dutch, as well as an assortment of ‘Indian’ languages in America. His view of human beings was diametrically opposite that of the Massachusetts Bay  Quoted by Parrington, 59.  Parrington, 58. Parrington states that “the “‘Fundamental Orders” adopted by the General Assembly, January 14, 1639 [was] a plan for popular government so broadly democratic as to entitle it to be called ‘the first written constitution of modern democracy,’ … Concerning the important part played by Hooker in this work there can be no doubt.” 58. 22 23

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Puritans. So far from being depraved, human beings are capable of the moral virtues. Williams held to a Stoic view of human worth. Nussbaum describes this as “the idea that all human beings are of equal worth in virtue of their inner capacity for moral striving and choice, and that all human beings, whoever and wherever they are, are owed equal respect.”24 In England the young Williams was an eyewitness to brutal punishments, such as the 1630 punishment of a Puritan reformer. His ears were cut off, both sides of his nose were split; he was branded on his face, and then imprisoned for the remainder of his life. Throughout his life Williams believed that meekness and gentleness are the true message of Jesus Christ.25 Williams sought freedom and peace in America. Settling in Salem, his views were regarded as unorthodox. He expressed sympathy for the Native American tribes, distributing a pamphlet which claimed that the colonists could not rightfully appropriate ‘Indian’ land as their own.26 He argued that there should not be a religious oath required of civil servants. He condemned bodily punishments for religious deviants. His criticisms were aimed at Master John Cotton and Puritan magistrates. Targeted for punishment, Williams fled from Salem to the area of what is now Providence, Rhode Island. Here he founded a new community of religious independents. Later, in 1644 he published his most well-known work, The Bloudy Tenent of Persecution for Cause of Conscience. In this work Williams argues that it is unlawful for anyone to be persecuted for following the dictates of his conscience. John Cotton and the Puritan magistrates should use spiritual means to address religious deviants. Williams says he [John Cotton] implies that beside the censure of the Lord Jesus, in the hands of the spiritual governors, for any spiritual evil in life or doctrine, the civil magistrate is also to inflict corporal punishment upon the contrary minded: whereas first, if the civil magistrate be a Christian, a disciple or fol24  Nussbaum, 45. Williams is one of Nussbaum’s heroes, and her pages on his life and teachings are well-researched and inspirational. I make ample use of her exposition. 25  Nussbaum, 42: “The attitudes he recommends and loves are those of mercy, gentleness, meekness, and civility; these words recur with obsessive frequency throughout the two philosophical dialogues that constitute his major works.” 26  Nussbaum describes his new community in Rhode Island “his dealings with the Indians had long prepared the way for a fruitful relationship: Chiefs Masassoit and Canonicus welcomed him like an old friend … he was a good public debater in the Indian languages” 46; “The Indians’ behavior, for Williams, expressed the Christian spirit of love more truly than did the severities of Massachusetts.” 47.

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lower of the meek Lamb of God, he is bound to be far from destroying the bodies of men for refusing to receive the Lord Jesus Christ; for otherwise he should not know, according to the speech of the Lord Jesus, what spirit he was of, yes, and to be ignorant of the sweet end of the coming of the Son of Man, which was not to destroy the bodies of men, but to save both bodies and souls.27

Williams rightly held that you cannot eradicate one’s deeply held beliefs—“conscience”—any more than you can compel someone to believe he is not standing on the floor when he is wake awake and standing on the floor. This passage indicates as much, as well as the harshness of the punishment for disbelief in those days: to batter down idiolatry, false worship, heresy, schism, blindness, hardness out of the soul and spirit, it is vain, improper and unsuitable to bring those weapons which are used by persecutors, stocks, whips, prisons, swords, gibbets, stakes, etc… I observe that as civil weapons are improper in this business, and never able to effect aught in the soul28

Williams regarded the corporeal punishment or otherwise forcing a person to affirm something against his conscience as the most heinous of crimes: “a Soule or spiritual Rape is more abominable in God’s eye, then to force and ravish the Bodies of all the Women in the World[a doctrine] which no Uncleannes, no Adulterie, Incest, Sodomie, or Beastialitie can equall.”29 Williams’ theory of religious freedom turns on the idea of conscience, something which every person possesses, but not every person follows: “I commend that Man whether Jew or Turke, or Papist, or who ever that steers no otherwise than as this Conscience dares … For Neighbor you shall find it rare, to meet with Men of Conscience.”30 Nussbaum 27  Selection from The Bloudy Persecution … in David A. Hollinger and Charles Capper, The American Intellectual Tradition, Volume 1, 1630–1865. 47. Selections taken from Richard Groves’ edition of The Bloudy Persecution … (Macon, GA: Mercer University Press, 2001), verses 55–56. 28  Ibid., 48. 29  Nussbaum, 54, quoting from “The Bloudy Tenent …,” 182; the second half of the quote is from Williams’ The Bloudy Tenent Yet More Bloudy, in The Complete Writings of Roger Williams Volume III (New York: Russell and Russell, 1963), 495. 30  Nussbaum, 52, quoting from The Correspondence of Roger Williams Volume II, edited by Glenn La Fantaise, (Providence, Rhode Island: Brown University Press, 1988), 586.

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comments that, “Williams thinks of consciences as delicate, vulnerable, living things, things that need to breathe and not to be imprisoned. There are so many of them in prison, all over the world.”31 Williams held that it is imperative that one give “permissions to differing Consciences,” which means even believers in false religions may be peaceable and decent people.32 What is “conscience” for Roger Williams? Nussbaum, who has located his diverse comments on this, states that his notion of conscience is the power of moral choice which directs one’s life and which constitutes a person’s character and identity. It is the “most precious and invaluable Jewel.”33 Conscience is possessed by everyone and is therefore the basis of the equality of people, and the basis of human dignity and worth. Equality, founding on the universality of conscience, is the basis for Williams’ embracing the nonestablishment of religion.34 As noted previously, equality is also the core idea in James Madison’s important “Memorial and Remonstrance Against Religious Assessments.” (1785). Nussbaum uses equality to critically evaluate court rulings pertaining to the religion clause of the First Amendment. Did Williams have much of an influence on subsequent early American thinkers? Williams’ freedom of religious expression shows up in the Charter of the State of Rhode Island.35 Beyond Rhode Island Nussbaum states: “although Williams’ personal influence was uneven, the general spirit of his writings became the dominant ethos of the colonies, as ideas of religious liberty and fairness gradually took hold even where Williams’s name would have brought nothing but scowls.”36 In regard to the Framing of the Constitution, she states:  Nussbaum, 53.  Nussbaum, 62; “Bloudy Tenent …,” 79. 33  Ibid., 55. 34  Williams is the first to use the expression “wall of separation.” See Nussbaum, 65. 35  George Washington Institute for Religious Freedom, “Roger Williams, Rhode Island, and Religious Freedom.” The original Charter reads: “No person within the said Colony, at any time hereafter, shall be any wise molested, punished, disquieted, or called in question, for any differences in opinion, in matters of religion, who does not actually disturb the peace of our said Colony; but that all and every person and persons may, from time to time, and at all times hereafter, freely and fully have and enjoy his own and their judgments and consciences, in matters of religious concernments, throughout the tract of land heretofore mentioned, they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.” 36  Nussbaum, 40. 31 32

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Looking back from our own times to the Founding, we often associate the constitutional idea of freedom of conscience, and the related idea of nonestablishment, more with Enlightenment rationalism and Deism than with their seventeenth-century precursors. But Williams’s version of doctrines that later became part of the Enlightenment is distinctive in a number of ways.37

There are seeds of Romanticism in Williams’ thought not generally found in the Enlightenment philosophers, namely the intensity and emotional nature of religious commitment. The Enlightenment Arrives at the Colonies As indicated, Hooker and Williams were a ray of sunshine which penetrated the dark times of colonial theocracies. Reason was further strengthened as a reaction to revival extremism. But something altogether new appeared. News of wonderful new theories founded upon reason began to seep in from Europe. Until 1714 students at Yale and elsewhere were still studying technologia and utilizing Peter Ramus’ logic of division.38 But in 1714 Jeremiah Dummer, an agent for Massachusetts and Connecticut, sent Yale College a gift of a collection of books that included the writings of John Locke, Isaac Newton, Peter Boyle, Francis Bacon and other moderns. In particular Locke’s theory of ideas, his empiricism, and psychology began to erode the older theories. And the hypothetical-deductive method of Newton was a marvel, as expressed by Alexander Pope: “Nature and Nature’s laws lay hid in night: God said, Let Newton be! and all was light.” Samuel Johnson, who had graduated from Yale in 1714, became a tutor, teaching technologia and Ramus’ logic. The impact of the new learning on Johnson was quick and decisive. At first it was Francis Bacon, then Newton, Locke, and the other moderns. Flower and Murphy describe Johnson’s conversion to Enlightenment thinking thus: The effect of this intellectual revolution upon Johnson is complex. On the simplest level, it forced a drastic intellectual house-cleaning, in which his outmoded scientific and philosophical beliefs were scrapped and the more modern ones of Newton, Boyle, and Locke substituted for them. But clearly  Nussbaum, 69.  Technologia was the Puritan idea of knowledge of the arts. God was an artist in creating the world, so humans study the artwork of God—technologia. 37 38

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more was involved … The discovery that New England was one hundred and fifty years behind the times in science could not fail to raise questions about the adequacy of his beliefs in other areas.39

Johnson began abandoning the Calvinist doctrines of predestination, original sin, and irresistible grace. Then, in February 1729, Bishop Berkeley arrived in America, and Johnson, already familiar with Berkeley’s Principles, met with the Irish philosopher and was treated to copies of Berkeley’s works. Johnson soon became an idealist of the Berkeleyan type, accepting the unreality of matter and adopting a Platonic theory of archetypal ideas. Even Jonathan Edwards began to weave elements of the New Learning into his theories. What did the Enlightenment stand for? To a degree I have followed Peter Gay in his two-volume work on the Enlightenment. Roughly it could be described as the period from John Locke (1632–1704) and Isaac Newton (1643–1727) through Immanuel Kant (1724–1804). The Enlightenment begins in earnest in France with the philosophes, and then spreads to England, Scotland, and the American colonies. At a minimum it stood for (1) Criticism and rejection of ecclesiastical structures with at least the suspicion, if not the claim, that religion existed due to fear and ignorance: Peter Gay, commenting on Diderot, states: “That religion was the necessary enemy of philosophy was commonly assumed by all the philosophers … Christianity is a “mythology” ”40 (2) Reason in philosophy and science represent the saving factor in human life. (3) The application of science to everyday life is the path to happiness. The idea of progress and the improvement of the human condition would result. The Grand Encyclopedia was just one manifestation of this project. (4) A defense and construction of representative and constitutional government as best for human society. Above all freedom was the catchword. As Peter Gay puts it: The men of the Enlightenment united on a vastly ambitious program, a program of secularism, humanity, cosmopolitanism, and freedom, above all, freedom in its many forms—freedom from arbitrary power, freedom of speech, freedom of trade, freedom to realize one’s talents, freedom of aesthetic response, freedom in a word, of moral man to make his own way in the world. In 1784, when the Enlightenment had done most of its work, 39  Elizabeth Flower and Murray G. Murphey, A History of Philosophy in America Volume 1. (New York: G. P. Putnam’s Sons, 1977). 82–83. 40  Peter Gay, The Enlightenment: An Interpretation Volume I, 549.

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Kant defined it as man’s emergence from his self-imposed tutelage and offered as its motto Sapere audi—Dare to know.41

It is noteworthy that the United States Constitution was hammered out as an entirely humanistic document by Enlightenment thinkers, in particular John Adams, Thomas Jefferson, and James Madison. Each of these three, and Franklin as well, were important figures whose activity involved these Enlightenment tenets. These American thinkers were in contact with these the philosophes through their writings or from personal contact. The philosophes included Montesquieu, d’Alembert, Condorcet, Diderot, Voltaire, Baron d’Holbach, Condillac, and others. The Founders As argued previously, the central, driving concern of the Framers of the Constitution was nonestablishment. John Adams was a church goer, a Unitarian, but had no use for religious establishments and their hierarchies. James Grant, biographer of Adams, wrote that, “Adams had no patience with the institutionalized structure of religion—synods, councils, convocations, oaths, and confessions—or with the doctrinal controversies that had flared up in the Awakening.”42 Adams believed that religious impulses are inherent in human nature, founded upon the universality of conscience. He believed that religion has utility in motivating people to be moral, but on occasion he floundered and regretted the existence of religion:  Twenty times, in the course of my late Reading, have I been upon the point of breaking out, This would be the best of all possible Worlds, if there were no Religion in it ! ! ! But…Without Religion this World would be Something not fit to be mentioned in polite Company, I mean Hell. So far from believing in the total and universal depravity of human Nature; I believe there is no Individual totally depraved. The most abandoned Scoundrel that ever existed, never Yet Wholly extinguished his Conscience, and while Conscience remains there is some Religion43

41  Peter Gay, The Enlightenment … I, 1. Sapere in Latin may be translated as “taste” in the sense of trying something out, and secondarily as “wisdom.” It was my good fortune to have had a class with Peter Gay at Yale in 1985. The course was “Freud and Psychoanalytic History.” 42  James Grant, John Adams, Party of One. (New York: Farrar, Straus, and Giroux, 2005). 43  The Founders Online. “From John Adams to Thomas Jefferson, 19 April 1817.”

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Although an admirer of the Bible, In the absence of priests, miracles, and other trappings of religion, Adams held that it is philosophy that establishes a creator, and it is philosophy that is impartial in examining the world’s religions: Phylosophy which is the result of Reason, is the first, the original Revelation of The Creator to his Creature, Man. When this Revelation is clear and ­certain, by Intuition or necessary Induction, no Subsequent Revelation Supported by Prophecies or Miracles can Supersede it. Phylosophy is not only the love of Wisdom, but the Science of the Universe and its Cause. There is, there was and there will be but one Master of Phylosophy in the Universe. Portions of it, in different degrees are revealed to Creatures. Phylosophy looks with an impartial Eye on all terrestrial religions.44

But Adams held that it is the Jews who propagated the monotheism that is established by philosophy. Adams held that the impact of the Jews in spreading civilization was enormous: The two Nations to whom Mankind are under more obligations for the Progress of Science and Civilization, than to any others except the Hebrews. This consideration affects me more than the danger from either or both. I excepted the Hebrews, for in Spight of Bolingbroke and Voltaire I will insist that the Hebrews have done more to civilize Men than any other Nation. If I were an Atheist and believed in blind eternal Fate, I should Still believe that Fate had ordained the Jews to be the most essential Instrument for civilizing the Nations. If I were an Atheist of the other Sect, who believe or pretend to believe that all is ordered by Chance, I Should believe that Chance had ordered the Jews to preserve and propagate, to all Mankind the Doctrine of a Supreme intelligent wise, almighty Sovereign of the Universe, which I believe to be the great essential Principle of all Morality and consequently of all Civilization. I cant Say that I love the Jews very much neither. Nor the French nor the English nor the Romans nor the Greeks. We must love all Nations as well as We can, but it is very hard to love most of them.45

Thomas Jefferson In 1760 at the age of sixteen Jefferson entered the College of William and Mary. Under the direction of Professor William 44  The Founders Online. “John Adams to Thomas Jefferson, 25 December 1813.” Access at: https://founders.archives.gov/documents/Jefferson/03-07-02-0040 45  Letter from John Adams to F. A. Van Der Kemp, February 16, 1809. Access at: https:// founders.archives.gov/documents/Adams/99-02-02-5302

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Small he studied philosophy and mathematics. It was here that he encountered the works of such Enlightenment figures as John Locke, Isaac Newton, Francis Bacon, and others. John Locke’s A Letter Concerning Toleration (1689) made a lasting impression on young Jefferson. Locke argued for the separation of church and state and defined the parameters of each. The state or civil society and its magistrates are properly concerned with “life, liberty, health, and indolency of body; the possession of outward things, such as money, lands, houses, furniture, and the like.”46 Religion on the other hand is concerned with the salvation of souls and is off-limits to magistrates. Locke says:  I affirm that the magistrate’s power extends not to the establishing of any articles of faith, or forms of worship, by the force of his laws. For laws are of no force at all without penalties … But penalties are no way capable to produce such belief. It is only light and evidence that can work a change in men’s opinions, which light can in no manner proceed from corporal sufferings, or any other outward penalties.47

Not even churches can force their members in any harmful way. Church officials can only use “exhortations, admonitions, and advices.”48 Magistrates can step in and regulate “outward forms of rites and worship” whenever these harm civil interests. For Jefferson, one notorious defect in Locke’s Letter is his lack of toleration of atheists, whom he, Locke claims, cannot take oaths, keep promises or covenants.49 In his notes upon reading Locke Jefferson stated, “It was a great thing to go as far himself sais of the parl. Who framed the act of tolern. But where he stopped short, we may go on.”50 Further he did go. In Notes on the State of Virginia (1787) Jefferson writes that, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god.”51 Like Voltaire, Jefferson held that religious pluralism in 46  John Locke, A Letter Concerning Toleration in The Second Treatise of Civil Government and A Letter Concerning Toleration, J. W. Gough editor (Oxford: Basil Blackwell, 1948), 126. 47  Ibid., 128. 48  Ibid., 131. 49  Ibid., 156. 50  The Papers of Thomas Jefferson, Julian P.  Boyd et  al. editors (Princeton: Princeton University Press, 1950), I, 548. 51  Notes on the State of Virginia, in The American Intellectual Tradition, 205.

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a society is a good thing: “Difference of opinion is advantageous in religion. The several sects perform the office of a Censor morum over each other.52 Jefferson wrote the epitaph for his gravestone, stating the three things he wanted most to be remembered for. After the Declaration of American Independence was “the Statute of Virginia for religious freedom.” First proposed on June 18, 1779, as part of the general revision of the laws of Virginia, “A Bill for Establishing Religious Freedom” did not become law until 1786, owing to much political wrangling. In France at the time of its adoption, Jefferson published a hybrid composed of the 1779 draft and the 1786 legal document. Andrew Reck’s comment on the Bill’s reception is worth nothing: Throughout Europe it was hailed in enlightened circles. The legislature of the new state of Virginia was applauded as the first in the civilized world to protect religious freedom by law. Jefferson’s 1779 draft is a remarkable document, crystallizing in his impeccable prose the principles of Enlightenment thought on the matter, extending these principles further than any earlier thinker had dared propose, and laying the foundations for religious freedom protected in the Bill of Rights of the federal Constitution.53

Jefferson’s remarkable Bill foreshadows Article VI, Section 3 of the original Constitution’s ban on any religious qualification to hold civil office, and at the same time asserts the equality of people in regard to their natural right to “privileges and advantages”: proscribing any citizen as unworthy of public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.54

The document not only contains this ban but asserts that any favoritism by government for a religion corrupts religion. Not having such a ban  Ibid.  Andrew J. Reck, “The Enlightenment in American Law III: The Bill of Rights,” 78. 54  Founders Online, Thomas Jefferson, “A Bill for Establishing Religious Freedom, 18 June 1779.” Access at: https://founders.archives.gov/documents/Jefferson/ 01-02-02-0132-0004-0082 52 53

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tends also to corrupt the principles of that very religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments, those who will externally profess and conform to it … neither are those innocent who lay the bait in their way.55

The Bill concludes as follows: We the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.56

Jefferson famously purged the New Testament of its mythology—miracles, demons, angels and the like—leaving only the moral teachings of Jesus himself (sometimes referred to as “Jefferson’s Bible”). When asked what his moral beliefs were, he replied that 50% came from Jesus’s teachings in regard to others, the other 50% from Epicurus on how to treat yourself.57 James Madison  Madison’s career as a reformer advocating complete freedom of conscience in religious matters began in 1773 in Culpeper County, Virginia, where he witnessed Baptist preachers in jail in for expressing their beliefs.  It is not the worst I have to tell you. That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the most of any thing whatever. There are at this [time?] in the adjacent County not less than 5 or 6 well meaning men in close Goal for publishing their religious Sentiments which in the main are very orthodox. I have neither patience to hear talk or think of any thing relative to this matter, for I have squabbled and scolded abused and ridiculed so long about it, [to so lit]tle purpose that

 Ibid.  Ibid. 57  Founders Online. “Thomas Jefferson to William Short, 31 October 1891.” Access at: https://founders.archives.gov/documents/Jefferson/03-15-02-0141-0001 55 56

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I am without common patience. So I [leave you] to pity me and pray for Liberty of Conscience [to revive among us.]58

While Thomas Jefferson was residing in Paris awaiting ratification of his bill on religious freedom, the Statute of Virginia for Religious Freedom, James Madison took up the fight to have it ratified by the Virginia Assembly. In June 1785, James Madison published one of the premiere essays in the history of American democracy. “Memorial and Remonstrance Against Religious Assessment” contains an insuperable battery of arguments against the establishment of religion in America. The occasion for this essay was a Bill, proposed by Patrick Henry in October of 1784 for “Establishing a Provision for Teachers of the Christian Religion.” Henry’s reasons for paying teachers of Christianity are summed up on the Bill’s “Preface”: Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers, … and it is judged that such provision may be made by the legislature59

Madison begins his essay by underscoring that a person’s religious beliefs and manner of exercising those beliefs are inalienable rights and cannot be compelled by force or violence. The first argument for disestablishing religion focuses on the consequences of government favoring Christianity: “Who does not see that the same authority which can establish Christianity, in exclusion of all other religions, may establish with the same ease any particular sect of Christianity in exclusion to all other Sects?”60 Madison helps the reader to see that, to take an example, if Protestant sects should greatly outnumber other sects due to government favoritism, then beliefs indigenous to Protestant sects may wind up being established to the detriment of, say, Catholic sects.  The Founders Online. “From James Madison to William Bradford, 24 January 1774.”  Cited by Banning, 434 note 51. 60  Founders Online, “Memorial and Remonstrance Against Religious Assessments, June 20, 1785.” Access at: https://founders.archives.gov/documents/Madison/01-08-02-0163. One year later, 1786, Jefferson’s bill was adopted by the Virginia legislature, due in no small part to Madison’s efforts. 58 59

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The second argument is of immense importance for disestablishment of religion, and its basis, the equality of citizens, is a major disestablishment theory today. Madison states that Patrick Henry’s Bill: violates the equality which ought to be the basis for every law, and which is more indispensable, … If “all men are by nature equally free and independent,” all men are to be considered as entering into society on equal ­conditions; as relinquishing no more and therefore retaining no less, one than another, of their natural rights.61

Free exercise of religion “according to the dictates of Conscience” must be equally granted to those have not accepted evidence of a divine religion. Favoring one religion “violates equality,” places burdens on some and grants “peculiar exemptions” to others. The third disestablishment argument appears to follow the epistemological element in John Locke’s Letter Concerning Toleration. Civil authorities, Madison says, are not competent judges of religious truth nor of the means of salvation and must stay out of matters concerning religion. Madison’s final critical comments are that Henry’s bill does nothing to increase the appeal and membership of Christianity by concealing errors which teachers who advocate Christianity may do, and to make by law a preferred religion “tend[s] to enervate the laws in general.”62 Benjamin Franklin  One of the greatest Americans in our 236-year history, he was publisher and newspaper man, inventor, scientist, philosopher, philanthropist, and a Founding Father of the United States. Franklin’s reflections on God and free will passed through three stages, exhibiting the creativity which free thinking and freedom of expression can produce: the Dissertation and its necessitarian claim; the 1728 statement of his religious convictions with its hierarchical polytheism; and the Junto “Providence” address. In 1725 he published A Dissertation on Liberty and Necessity, Pleasure and Pain. In the Dissertation Franklin defends the necessitarian position. Human behaviors are necessitated, compelled by the will of God. There is no such thing as free will or liberty.  Ibid.   These vague passages are difficult to decipher. Others may find a different interpretation. 61 62

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We can do what we will, but the willing itself is determined. If free will does not exist, then “neither merit nor demerit in Creatures.” You cannot praise or blame anyone, for people cannot determine their own will. The second stage in his thinking on religion amounted to hierarchical polytheism. In 1728 Franklin drew up a statement of his religious convictions. He says he believes in one supreme God, perfect in power and knowledge. This supreme god is “infinite and incomprehensible.” God created the universe with many suns with planets and created a lesser god for each planet. Franklin is unable to say whether the planetary gods are immortal, or whether they are changed out from time to time. Each planet is owned by its god. In this statement Franklin adopts the Great Chain of Being, with God at the top and untold numbers going down the chain. The supreme God requires no worship and no prayers. The lesser planetary god delights in our happiness and virtue. Franklin praises the lesser god and this god satisfies a human need for something to worship. The third stage is providential. Always energetic and creative, always the complex person, in 1727 Franklin and some friends formed a club, the Junto Club. In 1732 Franklin read a paper before the Junto Club on “The Providence of God in the Governance of the World.” He reasoned that there are only four possibilities: (1) God has completely determined everything (necessitarian position). But this would mean God ordained the evils of the world. (2) God has determined nothing. But this would mean that God cares nothing about us and has left everything to chance. (3) God has determined some things and left others undetermined. But this would make God sit idly by while parts of the world are left to chance. God, having vast powers, would use those powers. (4) Some things are determined and some undetermined, but in regard to the undetermined, God “interferes and sets aside the Effects which would otherwise have been produced.” Franklin held that since God is free, God would want people to be free. God’s possibly rectifying “Effects” would open the door for the efficacy of prayer, and people would both love and fear God the Almighty. At the Constitutional Convention on September 17, 1789, the aged and much revered eighty-one-year-old Franklin had prepared a speech for the delegates but was too weak to read it. James Wilson read it for him, and it contains an argument for fallibilism as a green light for future improvement of this great document: Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far

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error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. many private persons think almost as highly of their own infallibility as of that of their sect…63

Franklin, though he has objections to the proposed Constitution, recognizes his own fallibility, and is willing to put those aside, on the grounds that one cannot imagine a better system: I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies … On the whole, Sir, I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.64

Alexander Hamilton  Unlike many of the Framers, for most of his mature years Hamilton was unconcerned with religion, and he was not affiliated with any sect. One article describes Hamilton’s relation to religion as having three phases.65 In the first phase he is a Christian General who prays on his knees. In the second phase, lasting roughly fifteen years through his political involvement, he is indifferent to religious matters. One story has it that when Benjamin Franklin urged the delegates at the Constitutional Convention to begin each day with a prayer, Hamilton remarked that the Convention did not need “foreign aid.”66 Upon the advent of the French Revolution, Hamilton attempted to use “God” for political purposes—to bolster the fading Federalist Party. In the third phase, beginning about 1801, having retired from politics as a result of having lost power and 63  Benjamin Franklin Historical Society, “Constitutional Convention.” Access at: http:// www.benjamin-franklin-history.org/constitutional-convention/ 64  Ibid. 65  Douglas Adair and Marvin Harvy, “Was Alexander Hamilton a Christian?” William and Mary Quarterly volume 12: Alexander Hamilton: 1755 1804 (1955), 308–329. 66  Ibid., 315.

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prestige, he discovers God in the magical and complex design in the lives of plants and other life forms. With renewed energy he settles into his ­family life. The Rise of Religious Pluralism  William R. Hutchison, in his impressive study of religious pluralism in America, states that in the colonies prior to the Constitutional Convention there was some degree of toleration of differences in religion: “When an immigrant agronomist and writer named Hector St. John de Crèvecoeur, in the 1780s, used broad strokes … in characterizing the new society and (along with much else) its religious life, few of his critics accused him of exaggeration or of rhetorical flourish.”67 Crevecoeur claimed that  After asking his mostly European readers to accompany him, in their minds, down a country road somewhere (unspecified) in the colonies, he pointed first to the prosperous farm of a Catholic, “who prays to God as he has been taught, and believes in transubstantiation.” This hard worker and family man, Crèvecoeur avowed, was entirely accepted. “His belief, his prayers offend nobody.” And many of his neighbors were beneficiaries of the same tolerant attitude—the “good honest plodding German Lutheran,” the fiery “seceder” (from the Church of England) with his well-painted house, and the “Low Dutchman” who adhered to a rigid Calvinism but seemed more preoccupied with his “waggon and fat horses.” Everyone tolerated and respected everyone else. In fact, Crèvecoeur asserted, these radically differing believers, if their own houses of worship were too far away, might well run into each other at the Quaker meeting- house!68

Figures for the 1780s reveal a solid, overwhelming superiority in numbers of Christians. The figures for the 1780s, although incomplete, are thus: Of 3200 congregations, 240 were Lutheran; 56 Catholic; Methodist 65; Moravians; 31, Mennonites 16; Dunkers 24; Shakers 12; Sandemanians 6; and Jewish, 3 with no rabbi. But all was not roses. There was a widespread view that Africans and “Indians” were not capable of having a religion. As the decades passed, there was a “severe reduction in Protestant Christianity’s numerical 67  William R.  Hutchison, Religious Pluralism in America, The Contentious History of a Founding Ideal (New Haven and London: Yale University Press, 2003), 11. 68  Ibid., 12–13.

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dominance in the American population.” By the 1850s “Protestants accounted for only 57 percent of the membership of Christian churches.”69 In the 1840s violence broke out: In 1844 the founder of Mormonism was murdered in the jail at Carthage, Illinois. In July of that year, Philadelphia was convulsed with anti-Catholic rioting that, as one historian has put it, “turned the City of Brotherly Love into a chaos of hatred and persecution.” Two churches were burned to the ground, and twelve people were killed, 11 In the calmer city of Baltimore. John Quincy Adams, the congressman and former president, took charge of a National Lord’s Day convention whose purpose was to promote observance of a Sabbath that was not the Sabbath of the Jews or of the Seventh Day Baptists.70

Over the years in the second half of the nineteenth century demands for greater recognition and inclusion rose. Hutchison describes the World’s Fair of 1893, which had facilities displaying the “Great Religions of the World” and a World Parliament with over forty speeches by non-Christian delegates. One such speaker stood out in his rebuke of Western and Christian domination: Swami Vivekananda, the young reform-minded Hindu leader who later founded the Vedanta Society in the United States, gave an address toward the end of the World’s Parliament that, according to the Reverend Mr. Barrows, dismayed Western delegates. Surely the Parliament had “proved to the world that holiness, purity, and charity are not the exclusive possessions of any church in the world.” If, in the face of such evidence, someone still thinks one religion will triumph over the rest, “I pity him from the bottom of my heart.”71

Of the three phases in the acceptance of religious and cultural pluralism described by Hutchison—pluralistic toleration, pluralistic inclusion, and pluralistic participation, James Baldwin emphasized the need for participation of minority groups who reject their inclusion into the great white melting pot:

 Hutchison, 19 and 22.  Ibid., 19. 71  Ibid., 181–182. 69 70

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Baldwin, in an especially noteworthy conversation of 1962 with the journalist Studs Terkel, explained that a large part of the problem is that blacks are so enmeshed in the so-called mainstream culture—that in so many ways they have been thrown, willy nilly, into the great cauldron: “One is born in a white country, in a white Protestant Puritan country … You go to white movies, and like everybody else you fall in love with Joan Crawford and you root for the Good Guys who are killing off the Indians.”72

Baldwin sought to find his place within the dominance of white culture through participation. He wanted to be seen, heard, and his views put on the table: The special attitudes of former outsiders, moreover, would gain expression through genuine participation, just as they always had for insiders. Baldwin was claiming for his own and other “minorities” not just a place at the table but a right to speak and be heard, and a right to help formulate the agenda.73

Hutchison points out that the new participatory pluralism was concomitant with Supreme Court decisions on schools, race, immigration, voting rights. Moreover, minorities began to be featured on television ads; minority fashions were becoming popular, as well as their music; sports fans enjoyed an increase in the number of minority sports heroes. All this bolstered minority self-identity and self-respect. The Immigration and Nationality Act of 1965 was a pivotal point for Asian immigration to the United States.74 For decades federal legislation had restricted the number of immigrants from outside Western Europe. For foreign immigrants the new bill assigned priority to highly skilled workers and capped the number of visas at 290,000, with a restriction of 20,000 visas per country per year.75 Hutchison refers to this Act as “epochal”: In the wake of that epochal change in immigration policy, the numbers of Hindus and Buddhists from Asian countries rose, in the quarter-century  Ibid., 215.  Ibid., 218. 74  Also referred to as the Hart-Celler Act after its two main sponsors, Senator Phillip A. Hart (Michigan) and Representative Emanual Celler (New York). 75  See Public Law W 89-236-OCT. 3, 1965. Access at: https://www.govinfo.gov/content/pkg/STATUTE-79/pdf/STATUTE- Also, see the summary at https://history.house. gov/Historical-Highlights/1951-2000/Immigration-and-Nationality-Act-of-1965/ 72 73

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after 1965, from a few thousand of each to a half million of each. By the 1990s “American religion” included far more Hindus than Quakers, far more Buddhists than Unitarians. And the Hispanic population grew, in these years, to nearly twenty-five million.76

Asian literature reached a degree of popularity, for example D. T. Suzuki’s 1964 edition of Introduction to Zen Buddhism, Alan Watts’s Way of Zen, and Jack Kerouac’s Dharma. Islam also enjoyed a sharp increase in membership: The steepest and most dramatic growth, however, was that of Islam. Here good estimates were even harder to achieve than they had always been for other religious groups. According to some attempted counts (and these were not the highest), Islam in the United States matched or nearly matched the Jewish community (six million) in size. Even according to the most conservative estimates, which ran from below two million to just under four million, the Muslim population had become comparable in size to that of such old-line Protestant denominations as the Presbyterians or the Episcopalians.77

The most spectacular example of participatory religious pluralism is the activity of The Unification Church, led by the late Korean Sun Myung Moon. Virtually unknown to the public and many scholars, for many years a part of the Unification Church was the “Religious Youth Service.” RYS, as it was called, conducted charity projects in various parts of the world, inviting young people from countries around the world, from Australia to India to Yemen—to give up their summers to participate in projects for poor or outcast people. In Spain in the 1980s RYS built a food center and water source for poor gypsies near Baza, Spain. Also, in the 1980s thirty young RYS volunteers built a concrete and steel workshop on the grounds of a monastery in Italy for Ethiopian men, refugees from a civil war in their home country. In the afternoon after work and a lunch, young people would exchange views about their native religion, its beliefs, ceremonies, and practices. Now it is a woman from Ghana describing Asante religion; then a young Egyptian describing his Coptic faith; a Jewish man describing dedication to the Torah and various holy practices; orthodox and modernized Hindus relating the story of their faith. Remarkably, although  Hutchison, 224.  Ibid.

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there were at times heated discussions, there was no attempt to proselytize others. As indicated at the beginning of this chapter the flood of immigrants to the United States from around the world brought with them innumerable practices, many of which created difficulties for the courts as far as the Free Exercise and Establishment clause of the First Amendment are concerned. Moreover, to many white people these immigrants were ‘alien’ intruders. Their presence created a counter pluralism movement that today is embedded in the Republican Party.

CHAPTER 9

Bill of Rights II: The Right to Bear Arms

Founders’ Discussions of The Right to Bear Arms  It is important to discern as accurately as possible the position of the authors of the Federalist papers on the right to bear arms. Is there a coherent position on this right in the Federalist papers? This chapter continues to pursue this question which was raised earlier. The relevant Federalist papers are Nos. 25, 29, 46 and 56.  Hamilton in Federalist No. 29 sets out the “plan of the convention” circumscribing the nature and functions of militia and the bearing of arms. He states the functions of a national “militia” are to ward off “insurrection and invasion” and to monitor peace and security of the country. The Union alone, he says, is empowered “to provide for the organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, RESERVING TO THE STATES RESPECIVELY THE APPOINTMENT OF THE OFFICERS AND THE AUTHORITY OF TRAINING THE MILITIA ACCORDING TO THE DISCIPLINE PRESCRIBED BY CONGRESS.”1

One objection to the militia proposals is that the proposed Constitution does not provide for POSSE COMITATUS. This is the authority of the 1

 Federalist No. 29, pages 124–125.

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federal government to require citizens to assist, if need be, militia officers in securing adherence to law. But POSSE COMITATUS is implied by the authorization of officers of the militia to defend the law and therefore they may legally call upon citizens for assistance if need be. Hamilton argues that it is impossible to properly train and discipline all the militia of the United States—it would be “futile” and “injurious.” He states that To oblige the great body of the yeomanry and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a great grievance to the people, and a serious public inconvenience and loss … Little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed and equipped, and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.2

In order to have a ready-to-fight militia, Hamilton suggests a “select corps” of young and ardent men who would be very well trained and disciplined. In Federalist No 25 he argues against a prohibition on standing armies, a prohibition which would create “the most extraordinary spectacle … that of a nation incapacitated by the Constitution to prepare for defense, before it was actually needed.”3 Presumably the “select corps” would be the standing army. In the Federalist papers, references to a militia without exception refer to a Union militia or a State militia, and never to a private militia formed independently of Union or State authority. In Federalist No. 56 Madison means by “militia” the infantry and cavalry who need no knowledge of local geography to do their job.4 Hamilton states that one State “militia” can come to the aid of another State if the latter is under assault.5 In Federalist No. 46 Madison considers the worry that some have that the Union army could extinguish State governments. Notice in Madison’s comments that a Union militia is referred as “the regular army,” while States’ militaries are designated as “militia.” Madison argues that the  Ibid., page 126.  Federalist No. 25, pages 114–115. 4  Federalist No. 56, page 221. 5  Federalist No. 29, page 127. 2 3

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citizens of States’ governments would be sufficiently strong to repel any incursion by national troops into what belongs to the States. Madison calculates the numbers of fighters on each side, State and Union, and reaches these figures: The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls, or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens, with arms in their hands, officered by men chosen among themselves, fighting for their common liberties.6

Madison considers it a great advantage the American government has over the governments of Europe that its citizens are armed, and its officers are chosen by the States themselves.7 These comments by Hamilton and Madison can be summed up as follows: . American men have the right to bear arms. 1 2. The purpose of this right is possible service in a State or Federal militia. 3. The service of these two militia—State and Federal—is security against invasion by a foreign power or domestic insurrection. 4. State militias are composed of officers chosen by each State, who conduct periodic training for the militia. 5. No reference is made to private militias, which would be counted as potentially insurrectionist. 6. No mention is made of where arms can be carried by American men (anywhere, only in homes, or only while hunting?). 7. The standing Union militia or army is comprised of a “select corps” of highly trained young men.

6  Federalist No. 46, page 192. Madison’s Message to Congress on December 3, 1816, contains a “message of highest importance … the reorganization of the militia on a plan which will form it into classes according to the periods of life more or less adapted to military service.” 7  Ibid.

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There is nothing in this summary that is not consistent with the relevant, brief portions of the original Constitution. Article I, Section 11.18. in the new Constitution, in which “National Guard” replaces “militia” in the original Constitution. It states: To provide for calling forth the National Guard militia to execute the laws of the Union, suppress insurrections and repel invasions.

This coincides with Hamilton’s two functions of a militia. Article I, 8.6 of the original Constitution states that Congress institutes rules for disciplining, organizing, and arming the militia, with the States appointing officers and carrying out the actual training. This too accords with Federalist discussion. The original statement of the right to bear arms was stated and affirmed along with eleven other Articles by a Joint Session of Congress in March 1789. “Article the fourth” states that, “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.” This is exactly repeated in Amendment II to the Constitution. This much is clear. The right to possess and bear arms is justified because it is necessary to have a militia to suppress insurrections and repel invasions. It is important to note that the federal government did not, at this time, have a large stockpile of pistols and muskets, and any arms borne by militias were owned by private citizens. The Founders were silent on where men can bear arms. But given that bearing arms is an adaptation to existing conditions in the Colonies, it would not be required of citizens to bear arms in public places when there is no threat of an insurrection or invasion. Personal safety in urban places was not a major concern and not part of the telos of bearing arms. The new, revised Constitution updates provisions concerning the military and the right to bear arms. These revisions and additions are adaptations to existing conditions in our society in the twenty-first century. The Right to Bear Arms in the New Constitution  Article IV, Section 1.1, The Right to Bear Arms and Restrictions is as follows: Citizens have a right to own and/or possess pistols, non-military rifles, and shotguns. These must be registered with the proper authorities. Citizens may store these in their vehicles only if hidden from view. All

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firearms in the home must be safely locked away, especially in families with children.

Justification  This Section of Article II asserts that citizens need not worry that this new Constitution will take away their right to own and bear arms. Although private ownership of guns is no longer necessary for the purposes of forming a militia, guns in the home do have usefulness. Guns in the home make the occupants feel more secure and may actually make them more secure in some circumstances; guns such as hunting rifles, pistols, and shotguns should be safely stored, locked up away from minors. Article IV, Section 1.3 restricts ownership or possession of arms that are only appropriate in a military or law enforcement setting, and Article IV, 1.2 requires firearm registration: 1.2 States that All firearms are to be registered. Unregistered firearms may result in a fine or in some cases firearms may be confiscated. 1.3 Private citizens may not own or possess military grade weapons, such as hand grenades, artillery, flame throwers, or military grade automatic and semi-automatic rifles, automatic and semi-automatic pistols, and shotguns made to accept a revolving cylinder attachment for a large number of shells. Military grade rifles (AW for assault weapons) are defined as butt held high-powered rifles that can spray an area or a mass of people and have no practical use outside a military or law enforcement context. Private citizens may not possess firearms with a bullet or shotgun shell capacity of more than 10 rounds.

Justification  Military grade, fully automatic rifles fire bullets as long as the trigger is pressed back, about 600 bullets per minute. Semi-automatic

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rifles fire one round for each time the trigger is pressed.8 Two types can serve as representative of the type of arms not allowed for civilian use or possession—the AK – 47 and the AR – 15. There is an estimated 100 million AK  – 47 rifles worldwide. Estimates from the Bureau of Alcohol, Tobacco and Firearms of assault rifles in the United States range from 1 million to 3 million. When the Soviet Union collapsed, massive numbers of these weapons were sold off at auctions. They are lightweight, easily repaired with a minimum number of parts, and even children can carry and fire them.9 Such weapons are not used for hunting. It is more than a little stretch to think of someone hunting deer with such a weapon.10 In many cases criminals have outgunned law enforcement officers; bullets from such military grade rifles can penetrate some body armor, penetrate car doors, and walls in houses and buildings. A report by the American

8  Military.com 11 Aug 2020, Blake Stilwell, “The AK-47: Everything You Want to Know.” Access at: https://www.military.com/off-duty/ak-47-all-about.html “AK” stands for the inventor of this rifle, Avtomat Kalashnikova. Department of Justice, Christopher S. Koper, “Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003.” Access at: https://www.ojp.gov/pdffiles1/nij/grants/204431. pdfKoper describes the 10  year ban on assault weapons, and includes a list of 18 banned models. He states: Title XI, Subtitle A of the Violent Crime Control and Law Enforcement Act of 1994 imposed a 10-year ban on the “manufacture, transfer, and possession” of certain semiautomatic firearms designated as assault weapons (AWs). The ban is directed at semiautomatic firearms having features that appear useful in military and criminal applications but unnecessary in shooting sports or self-defense (examples include flash hiders, folding rifle stocks, and threaded barrels for attaching silencers). The law bans 18 models and variations by name, as well as revolving cylinder shotguns. It also has a “features test” provision banning other semiautomatics having two or more military-style features. In sum, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has identified 118 models and variations that are prohibited by the law. A number of the banned guns are foreign semiautomatic rifles that have been banned from importation into the U.S. since 1989. • The ban also prohibits most ammunition feeding devices holding more than 10 rounds of ammunition (referred to as large capacity magazines, or LCMs). 9  See Michael H. DeArmey, Cosmopolitanism and the Evils of the World, the chapter on “Child Soldiers.” 10  It has come to my attention that automatic or semi-automatic, military grade rifles such as the AKM – 47 or the AR 15 may be useful in killing large numbers of uncontrolled feral hogs (a “sounder”) which uproot and devastate the countryside. Requests for an exclusion would be submitted to the appropriate federal agency.

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Medical Association cites a significant number of law enforcement groups that advocate banning such weapons.11  According to Stilwell the AK 47 (and its more recent improvements called “AKMs”), is the deadliest single weapon ever produced—“The AK-47 is the deadliest weapon ever built on the whole. Its kill count even tops nuclear weapons in sheer numbers.” Its effect on the human body is unrivaled: The weapon uses a 7.62mm, high-velocity round that can “destroy whole areas of a body,” according to New York City trauma surgeons. They shatter bones, tear through organs and liquefy other materials as the round tumbles through the body—often in ways that cannot be repaired.12

The American Medical Association’s description of the damage the bullets from a high-powered assault rifle can do to a person cites the extreme difficulties for surgeons in treating a victim: Wounds from high-velocity assault weapons resemble the wounds inflicted in the Vietnam War: they are often multiple and massive, and immediate treatment is critical to survival. High velocity bullets may set up shock waves and cavitation effects, resulting in unpredictable damage at sites far from the wound tract. With low-velocity assault weapons, multiple wounds still occur, but the damage is localized to the tissues adjacent to the wound tract, and the full extent of the injury can usually be determined at the time of surgery. A spokesman for the Hospital Council of Southern California has stated that mortality rates from high velocity bullet wounds are four to five times higher than those from low-velocity wounds and stab wounds.13

11  Several law enforcement organizations have endorsed banning the manufacture and sale of assault weapons. These include the International Association of Chiefs of Police, the National Sheriff’s Association, the National Association of Black Law Enforcement Executives, the Police Executive Research Forum, the National Association of Police Organizations, and the Fraternal Order of Police. The Board of Governors of the American Bar Association has called for laws to restrict private ownership of assault weapons. Former Senator Barry Goldwater, a life member of the National Rifle Association, has said that there is no reason to use automatic or semiautomatic weapons for hunting and that “they have no place in anybody’s arsenal. If any SOB can’t hit a deer with one shot, then he ought to quit shooting.” 12  Stilwell essay in Military.com 13  Journal of the American Medical Association, June 10, 1992, vol. 267, #22. Council on Scientific Affairs Report, “Assault Weapons as a Public Health Hazard in the United States,” 3068.

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Who cannot feel pangs of grief at the incident of mass killing in a Uvalde, Texas school, in which nineteen children were killed by a semi-­ automatic assault weapon? The bullets tore apart elementary school children and some children were decapitated. One shudders at the thought of it. There is some evidence that a decline in the use, ownership, or simple possession of assault rifles and assault pistols will occur if a ban is put in place. Koper states: In the long term, we can expect prices of the banned guns and magazines to gradually rise as supplies dwindle. As prices rise, more would-be criminal users of AWs and LCMs will be unable or unwilling to pay the higher prices. Others will be discouraged by the increasing non-monetary costs (i.e., search time) of obtaining the weapons. In addition, rising legal market prices will undermine the incentive for some persons to sell AWs and LCMs to prohibited buyers for higher premiums, thereby bidding some of the weapons away from the channels through which they would otherwise reach criminal users. Finally, some would-be AW and LCM users may become less willing to risk confiscation of their AWs and LCMs as the value of the weapons increases. Therefore, we expect that over time diminishing stocks and rising prices will lead to a reduction in criminal use of AWs and LCMs.14

Authorization and Restrictions in the new Constitution Bill of Rights, Article IV, Section 1.4 authorizes who can bear arms and who cannot bear arms in public places:  A well-regulated State militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. Citizens who are a part of the State militia (National Guard), the Armed Forces, law enforcement officers throughout the country, or licensed security guards may carry weapons on their person in public as long as they are authorized to do so by their commanding officers or licensing agency. Citizens have a right to safely lead their lives. Private citizens shall not bear arms on their person, concealed or unconcealed, in public, inclusive of government buildings, businesses in the public marketplace, rallies, demonstrations, schools, colleges and universities, sporting events, voting places, or places of worship.

14  Christopher S.  Koper, “Updated Assessment of the Federal Assault Weapons Ban: Impacts on Gun Markets and Gun Violence, 1994–2003.”

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Today there are too many instances of law enforcement officials—State and municipal police—exceeding what is the proper (reasonable and just) use of force. Hence, Article IV, Section 1.5 embraces the minimum necessary for retaining the dignity and worth of people who come in contact with police: All State and Municipal police are required to have training on the proper use of deadly force, along with ethical considerations of the dignity of each and every human being. Periodic meetings for the purpose of dialogue shall take place between police assigned to neighborhoods and members of that neighborhood.

Section 1.6 restricts the bearing of arms for persons under the age of 18: Persons under the age of eighteen may have in their possession pistols, non- military rifles, and shotguns only if accompanied by an adult for purposes of hunting or recreation.15

Sections 1.7, and 1.8 restrict persons involved in insurrections or armed felonies: 1.7 Organized groups for which there is sufficient evidence that they manifest hatred for some racial, ethnic, religious, or political group, in conjunction with planned violence towards the hated group, their members may not possess firearms of any type. Organized groups planning for violence against municipal, State or Federal government may not possess firearms of any type. 1.8 Persons convicted of a felony while using or brandishing firearms shall have permanently lost the right to own or possess firearms of any type. 1.9 Persons with a history of mental health problems may not own or possess firearms.

 “recreation” refers to skeet shooting, marksman contests, and the like.

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Justification of additions 1.2–1.9  The United States is plagued by quasi-­ military groups who manifest hatred and who train in the use of firearms. If established by evidence that a group is a hate group planning violence, such a group has lost the right to possess firearms of any type. This includes hate groups which target racial or ethnic minorities, or which aim to violently confront State or Federal governments. In either case sufficient evidence will justify a warrant for the confiscation of their firearms. Members of any organized hate group have lost the right to own or possess firearms of any type. Convicted felons who used or brandished firearms in the commission of their crime have lost the right to possess or own firearms. In recent times murders have occurred in which the perpetrators have recurrent psychological maladies. These persons should not own or possess weapons of any kind. Psychologists, counselors, and other therapists have a professional and moral duty to report their findings to those in charge of the appropriate data bank. With the additions incorporated into the updated original Constitution, there will be a steady decline in armed violence, though it may take twenty years for the figures to reach a level at which Americans begin to feel safe as they go about leading their lives.

CHAPTER 10

Bill of Rights III: Reproductive Rights and Sexual Non-discrimination

The original Constitution contains nothing on the topic of abortion or sexual discrimination unless the right to abortion and right to non-­ discrimination are subsumed under “general welfare” and earmarked as one of “the blessings of liberty” as stated in the Preamble.

Six Additions to the New Constitution The updated and revised Constitution contains the following rights of reproduction and non-discrimination: ARTICLE V REPRODUCTIVE NON-DISCRIMINATION

FREEDOM,

SEXUAL

Section 1.1. In a period of up to twenty weeks pregnancy, each adult female citizen of the United States is free to make her own reproductive decisions without interference from State or Federal governments. 2 A physician’s approval is required for abortions performed at more than twenty weeks and approval is restricted to cases of endangerment to the woman’s physical or mental health or deleterious features in the fetus, such as spina bifida or Anencephaly.

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3D  octor-prescribed pharmaceuticals which block sperm from attaching to an ovum are to be acquired at no cost by women who seek them. 4 A human embryo or a human fetus has rights contingent upon its being born. All considerations concerning the cognitive or pain-­capabilities of a fetus are determined by scientific, neurophysiological conclusions. 5 Individual reproductive decisions, consultations with physicians or health care providers, are strictly private unless the person consents. Under penalty of law no one may harass persons seeking reproductive health services. 6 No citizen of the United States is to be discriminated against because of sexual preferences, and no citizens may be denied legal marriage due to their self-ascribed gender identification. Justification for rights 1, 2, and 4 will follow this sequence: First, the status of the human fetus; second, the relation of people to their bodies; third, attempts to condemn legally or argumentatively freely chosen abortions.

Can a Human Fetus Think or Feel? Detailed scientific studies concur that a human fetus can neither think nor feel until the third trimester (twenty-four weeks or more).1 Investigations into the fetal nervous system—brain and nerve development, including connectivity between parts of the brain—were summed up in a 2005 report published in the Journal of the American Medical Association (JAMA). This report incorporated data from over 2000 peer reviewed articles. Between 7.5 and 15 weeks receptors on the skin develop which sense an injury. But the skin receptors require neurons in the spinal cord to be developed, at about 19  weeks. Additional neuron development is required before signals from the spinal cord reach the area of the brain where pain is perceived. “This does not occur until between 23 and 24

1  Live Science. May 17, 2016. Sarah G. Miller, “Do Fetuses Feel Pain? What the Science Says.” Access at: https://www.livescience.com/54774-fetal-pain-anesthesia.html Also, FactCheck.org., May 18, 2015. David Levitan, “Does a Fetus Feel Pain at 20 Weeks?” Access at: https://www.factcheck.org/2015/05/does-a-fetus-feel-pain-at-20-weeks/

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weeks.”2 But even that is insufficient to produce the experience of pain. The JAMA review notes that necessary anatomical structures must be functional: “It’s not until around 30 weeks that there is evidence of brain activity that suggests that the fetus is ‘awake.’”3 The American College of Obstetricians and Gynecologists (ACOG) stated that, “a fetus’ brain and nervous system do not have the capacity to process, recognize or feel pain during the second trimester.”4 The Royal College of Obstetricians and Gynecologists (RCOG) reached the same conclusion as the JAMA and ACOG—there is no experienced pain before 24 weeks due to lack of connections with the cortex, and unlikely before “27 to 28 weeks.”5 However, what is contained in the RCOG report certainly alters the considerations regarding fetal experience of any type: connections to the cortex are necessary for pain experience but not sufficient, as experience of external stimuli requires consciousness. Furthermore, there is increasing evidence that the fetus never experiences a state of true wakefulness in utero and is kept, by the presence of its chemical environment, in a continuous sleep-like unconsciousness or sedation. This state can suppress higher cortical activation in the presence of intrusive external stimuli. This observation highlights the important differences between fetal and neonatal life and the difficulties of extrapolating from observations made in newborn preterm infants to the fetus.6

There is an amniotic sac filled with a clear to yellow amniotic fluid and this is the fetus’ environment. Amniotic fluid cushions the fetus and provides nutrients. Fetal urine is released into this fluid. At twenty weeks, the fetus is about the size of a banana, 7¾ inches (19.7 cm) long and weighs approximately nine ounces (.26 kg). Can the fetus hear anything? At best the fetus can hear only muffled sounds from the outside, although internally the interior of the pregnant woman’s body is somewhat noisy:

 Sarah Miller, Live Science.  Quoted by Miller, Live Science. 4  Quoted by Miller, Live Science. 5  Royal College of Obstetricians and Gynaecologists, March 2010, “Fetal Awareness Review of Research and Recommendations for Practice” Access at: “Fetal Awareness Review of Research and Recommendations for Practice” Access at: https://www.rcog.org.uk/ media/xujjh2hj/rcogfetalawarenesswpr0610.pdf 6  Ibid. 2 3

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By 20 to 24 weeks, the fetus will be about the size of a mango and will start to hear low-frequency noises from outside of the womb. A fetus begins responding to sound at between 22 and 24 weeks but can only hear low frequencies, such as a dog barking or a lawn mower. It is noisy in the womb. As the fetus’s auditory system develops, it will encounter all types of sound from within the woman’s body. These include the heartbeat, as well as the noises of the blood flow and digestive system. [Amniotic fluid] surrounds the growing baby in the womb, and the woman’s body tissues encase them, so noises from outside the body will sound muffled.7

Professor Chris Meyers has carefully examined the abortion issue, and notes that even if the fetus can feel pain at some point, this pain can be avoided by the use of anesthesia: The zygote and early embryo have no neurons whatsoever and so cannot experience anything at all. On the other hand, it seems obvious that a nine-­ month-­old fetus can feel pain. So when exactly does the fetus acquire the capacity to feel? This is a scientific question [see Article V, Section 1.3 above]. Virtually all experts (neurophysiologists, biologists, and medical researchers) agree that the fetus cannot feel pain before twenty weeks, and recent studies indicate that it might even be as late as twenty-nine weeks. On the other hand, even if the fetus could feel pain, this could be avoided simply by the use of anesthesia.8

Does an Abortion Harm a Woman? There is no evidence that legal abortions performed by physicians have any deleterious effects upon the woman. First, having an abortion does not make a woman undergo subsequent infertility: “First-time mothers with a prior abortion were significantly less likely to be treated for infertility compared with women in their first pregnancy (1.95 versus 5.14 percent, p