Jon Roland's Clarifying Amendments

[Jon Roland]

See http://www.constitution.org/reform/us/con_amend.htm for the latest and more complete version.

This is a collection of draft amendments to the Constitution for the United States. It is subject to frequent additions and revisions, so readers may want to revisit often.

It is not proposed that state legislatures petition Congress to call a constitutional convention, but rather that they propose identical amendments to Congress to be adopted as proposed amendments and send them back to the states for ratification. The task for reformers would be to unite behind identical versions and not accept variations. However, the main focus is not, for the clarifying amendments, on actually getting them ratified, but on using them to drive reform in legal practice.

Clarifying amendments — These do not make substantive changes in what was originally understood:

Clarification of "right"
In this Constitution all rights are rights against the action of government officials, or immunities, not entitlements to receive some material benefit. Every immunity is a restriction on delegated powers, and every delegated power is a restriction on immunities. Delegated powers and immunities partition the space of public action.

Common law writs
All persons have the right to a presumption of nonauthority. No person shall be denied or delayed more than 20 days in receiving a fair hearing and decision on the merits on a writ of quo warranto, habeas corpus, prohibito, mandamus, procedendo, certiorari, scire facias, or other prerogative writ, or on a demurral. The order granting the relief sought shall issue by default if a hearing is not held or a decision not made.

Stare decisis
On all constitutional issues precedents shall be regarded as only perhaps persuasive and never binding. Constitutional text shall be construed only on historical evidence of the meaning of the terms for, first, their ratifiers, and second, their framers. Equity and prudential decisions shall not be regarded as precedents.

Clarification of "regulate"
The power to regulate shall consist only of the power to restrict the attributes or modalities of the object regulated, and not to prohibit all attributes or modalities.

Clarification of "necessary and proper"
A power shall be regarded as "necessary and proper" only if it is essential to making the effort defined by an expressly delegated power, not to do whatever may be convenient to get a desired result, such as full compliance, for which the power might be exercised, and then only in a manner that is reasonable for a proper public purpose, and not abusive. The powers to tax, spend, promote, regulate, and prohibit (or punish), shall each be construed as distinct, with none implied by any of the others, and none shall be exercised as a way to avoid the lack of a power to do one of the others: Spending or taxing shall not be done to achieve a regulatory, promotional, or punitive purpose for which there is otherwise no delegated authority. Criminal prosecution shall not be done to achieve a taxing, spending, promotional, or regulatory purpose.

Fully informed jury
In all trials in which there are mixed questions of law and fact, including all criminal jury trials, and all jury trials in which government, whether general, state, or local, shall be a party, parties shall have the right not to have decisions by the bench made before all arguments can be made before the jury, excepting only arguments on defense motions in limine that cannot be made without disclosing evidence properly excluded. Jurors shall receive copies of all applicable constitutions, statutes, court precedents, and legal arguments, including those of intervenors and amici curiae, and access to an adequate law library in which they can do research.

Access to grand jury, appointment of prosecutors
No person shall be unreasonably impeded from access to a grand jury, who, if they should return an indictment or presentment, may appoint that person or any other to prosecute the case, and shall decide whether any official shall have official immunity from suit.

Clarification of "militia"
The primary meaning of "militia" shall be "defense activity", and only secondarily those engaged in it, or obligated to engage in it. All citizens and would-be citizens have the legal duty to defend the constitutions of the United States and their state, and the members of society, from any threat to their rights, privileges, or immunities, in response to a call-up by any person aware of a credible threat. Any call-up that does not require everyone to respond shall select those required by sortition. Jury duty shall be regarded as a form of militia duty. Militia may not be kept in a called up status beyond the duration of an emergency. Congress and state legislatures shall have the power to enforce this duty by appropriate legislation.

Readiness of "militia"
Militia shall be maintained in a state of readiness sufficient to overcome any regular military force it might encounter. Those who may engage in militia shall have any weapons in common use by regular military, subject only to the directives of local elected unit commanders during operations while called up. If Congress or any state or local legislative body shall fail to provide for organizing, training, or equipping militia units, persons shall not be impeded from organizing, training, and equipping themselves independently.

Clarification of "bill of attainder"
A bill of attainder shall consist of any legislative disablement of an immunity, either for an individual, group, or the people in general, without proof beyond a reasonable doubt, decided by a jury in each individual case, that he or she has committed a crime or is dangerously incompetent.

Clarification of "title of nobility"
A title of nobility shall consist of any legislated privilege or immunity, not enjoyed by all, or to the detriment of others, that is not essential for the performance of legitimate official duties, and a grand jury may authorize civil or criminal prosecution of an official for exceeding his jurisdiction or abusing his discretion.

Clarification of "commerce"
"Commerce" shall consist only of transfers of title and possession of tangible commodities from a seller outside a state to a purchaser inside that state. It shall not include primary production, manufacturing, sale within a state, possession, use, or disposal, nor shall it include the activities of those engaged in such transfers. It shall not include energy, information, or financial or contractual instruments.

Clarification of "declaration of war"
A declaration of war shall specify the state or organized body that is the enemy, the casus belli or casus foederis requiring its issuance, the commencement date, and the terms for its conclusion. The identification of the enemy shall be sufficiently explicit to allow persons of common understanding to recognize them, and not be left to executive officials to define the boundaries of who is included.

Clarification of "piracy"
"Piracy" shall consist only of warlike acts committed by a foreign nonstate actor, or by a domestic nonstate actor against foreign persons or property. Letters of marque and reprisal make the person to whom they are issued a state actor, and under a declaration of war all citizens are to be regarded as state actors with respect to the foreign state defined in the declaration.

Clarification of "trial by jury"
Trial by jury in criminal cases is not a right that may be waived by the defendant. It is a mandate even if the defendant pleads guilty. The number of jurors must be twelve. They must be randomly selected from the general body of citizens. They may not be asked about their knowledge, experience, or opinions about the law in voir dire. They must be unanimous to convict but not to acquit, and failure to convict shall be deemed acquittal. This provision applies to all criminal cases, national, state, or local.

Powers in nonstate territories
Congress shall not have power within nonstate territory in excess of powers provided by the constitutions of at least three states, being those that delegate the least power to their governments on the same subjects.

Disablement of rights
Congress shall not have power to disable a right or penalize any person on the basis of an administrative or due process proceeding in another jurisdiction, or lack thereof, or an administrative or due process proceeding in the same jurisdiction that does not explicitly disable the right as part of the final order of the court, upon conviction by a jury for a crime or a unanimous verdict finding dangerous incompetence.

Clarification of "speech" and "press"
"Speech" and "press" shall include the production and distribution of any communication, private or commercial, other than inducement to immediately commit a crime or act of war, or to give aid and comfort to a declared enemy.

Clarification of treaty power
Government shall exercise no power, based on a treaty, not otherwise delegated to it by this Constitution, other than to set international, state, or territorial boundaries.

Clarification of pardon power
A person may be pardoned only after conviction, and the pardon does not nullify the conviction. It is only a declaration that the executive will not enforce it. A declaration by a president or state governor that he will not enforce a criminal conviction against a person, does not bar enforcement by another person to whom a warrant to do so may be issued by a court of competent jurisdiction.

Clarification of sovereign immunity
Sovereign immunity of a state or the nation shall not be a bar to suit, only to execution of judgment against assets not provided by an act of Congress or the state legislature for payment of claims.

Rule of construction
If there is any significant doubt concerning whether an official has a power, or a person has an immunity from the exercise of a power, the presumption shall be that the official does not have the power, or conversely, that the person has the immunity.

Standing
No person shall be denied standing to privately prosecute a public right for at least declaratory or injunctive relief, even if he or she has not incurred, or does not expect, personal injury resulting from the failure to grant such relief.

More at http://www.constitution.org/reform/us/con_amend.htm

[Jon Roland]

No feedback yet. I don't consider them ready for that. Drafting the language of an amendment requires a period of discussion and revision until I can be fairly sure it will do what I want and is not readily misconstrued. That is why I ask for comments and discussion. Even the amendments formulated by James Madison and the First Congress, that we came to call the Bill of Rights, could have been better worded, with the benefit of hindsight.

However, it is unfair to blame the Constitution as worded, or the Framers who worded it, for the departures from compliance. No one can anticipate the sophistry that will develop in the future to subvert the language used in our own time, or how the language itself will evolve. To understand the language of the Constitution is to understand what is essentially a foreign language to us, and it can take a long period of intense study to understand a foreign language the way native speakers of it do.

That is why I propose "clarifying" amendments, to restate what the Founders meant in language that is more clear to modern readers, and leave them little discretion to evade the meaning of the Founders. These clarifying amendments alone would, if implemented, compel the central government to stop doing more than 90% of what it is doing now, and require any of that which is to continue be done by the states or localities.

How this would work will be more fully explained in discussion pages for each amendment which I am working on.

[Jordan Wethe]

Not a big fan of the Constitution?!? Wow, that's quite an admission.

[Billy L. Roberts]

Unfortunately, the departures from constitutional compliance that we have to undo are also many, and to omit any leaves holes through which the vermin can infest the building.

I'm not a real big fan of the Constitution to begin with and, in one sentence, that's why. Have you had any feedback from legislators on your proposals?

[Jon Roland]

Note that a key element of my approach is to make structural and procedural reforms that open the System to intervention by outsiders. It doesn't work to just declare a right in an environment in which legislators and judges are determined to allow "reasonable restrictions" on them, or to allow them to do anything under the Necessary and Proper Clause that they may find convenient.

Generally, it doesn't work to demand something of others and not provide the exact language of the law or rule you want them to follow. We have to remove most of their discretion.

[Jon Roland]

That has been part of my more complete proposals in the past. See the ones I proposed as an initiative in California. But I feel a need to keep these as pithy as possible. I am already getting complaints that they are too many. Unfortunately, the departures from constitutional compliance that we have to undo are also many, and to omit any leaves holes through which the vermin can infest the building.

[Billy L. Roberts]

I like it. The only thing I would add is to give juries the right to submit questions to witnesses, and to give them the power to subpoena evidence and testimony. This may give juries the right to examine evidence that has been excluded, but either a jury is "fully informed" or it's not.