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February 07, 2011

Guest post by Friedlander - Eighteen Ideas For Liberty—18 Proposed Constitutional Amendments for more rapid economic development

Preamble from Brian Wang- this is a long article and it is on the topic of politics and policy. It does not relate to science and technology, so please skip this article if you do not want to read things that are not science and technology or if a libertarian take on politics and policy and things like constitutional amendments would be annoying to you. This does not represent my politics per se but I am willing to let my guest Joseph have this forum to explore a set of ideas. Joseph has contributed other articles on technology and has helped to refine the concept of the nuclear cannon for space launch.

Again a warning- if reading anything with a libertarian bias makes you angry then do not bother going any further.

Answer to the question - why is his here ? Joseph has written other technical articles for this site and we have worked together on my nuclear space cannon. Thus I am giving him leeway in his writing some other articles. ie he paid his dues.

Guest post by Joseph Friedlander
Note-- I (from this point on Joseph's writing) am not 100% about the wording of these suggested amendments--any real amendment would --but I am serious that they serve as a springboard for discussion of the issues concerned. Right now open wounds are neglected in our country. It’s time to heal them.

1. Plain English amendment--- for any such court case in which a citizen postulates that a law under which he is challenged is too complex for an ordinary citizen to understand, a statistically valid jury shall be seated with intelligence in the lower half of the population (33rd percentile—since 50% would set the bar too high for those functional citizens below average). This jury shall be given statement by statement with multiple meanings suggested by the defense. Unless there is unanimity of consensus by ALL answers of the jury that the law is plain (they all give the same answers on their tests) the law as drafted shall be suspended and returned to the legislature for rejection or redrafting. Any attempt by prosecutors to give an answer key shall result in legal disbarment for life.





2. Legal disbarment from the good life amendment-- any person seeking employment as a lawyer who scores above the 50th percentile in a competitive test (and wishing to risk years of education against an UNCERTAIN outcome) may practice the legal profession. (in compensation for this added risk all Bar Associations shall be dissolved, their ‘passing the Bar’ test no longer being necessary and their alleged self-regulation being mostly a myth) The candidate lawyer shall be a lowly- paid government employee (to weed out the greedy) --not GS-1 but say no more than GS-10 http://www.fedsmith.com/pay_rates/ with no chance of ever attaining elective office (to weed out the ambitious and power hungry) ie he loses the right to subsequently run for office. He may never wear an expensive suit containing wool (To weed out those who are doing it for prestige and to attract women). Female attorneys reading that may smile and ask if they would not be able to wear expensive clothing on the job too-- and my answer would be yes-- because law is a public good. We literally cannot live without it and we must pay for it-- (and even a corporate lawyer’s salary is paid by the customers of that corporation) and any lawyer underdressed relative to the competition is at a disadvantage. Therefore-- a dress code mandating inexpensive clothing is not out of place otherwise all must pay for lawyers’ mutal dress-to-impress arms race. In fact I would be in favor of supplying a wash and wear work uniform to save them money on their new, lower pay.


Note that this constitutes massive interference in the life of lawyers as they now live it, but if it is valid for lawyers and lawmakers (often the same) to interfere in the lives of other professions, why not the reverse? And if not, why not? (Exercise for the student)

The state shall employ all these lawyers to pay for BOTH SIDES of a case, both prosecution and defense, as the alternative is having citizens pay for prosecutorial avarice. (Needless to say there shall be a separate and more vigorous—and punitive—amendment against potential prosecutors) Also the state shall pay for all patent applications (with sharply reduced terms of protection to save society money in return. As these reduced terms shall also apply to foreign controlled patents, the USA will have great net profit from this--and from the great increase in invention and patents now that the inventor is no longer behind the lawyers in line to profit from his own invention. Right now the lawyer gets paid always, the inventor hardly ever. This too shall change...)

3. Prosecutorial disbarment from the good life amendment-- no prosecutor may ever appear as a guest in a TV studio. May ever have his face shown in a video. (His hands may be shown, or his backlit body in profile) (To eliminate egotists). No prosecutor may ever seek elective office after his service.(To eliminate men of ambition.) No prosecutor may ever list on his resume or give interviews upon or write a memoir of all the famous people he has indicted.(To eliminate the prosecutorial equilvalent of stalking) No prosecutor may ever accept a legal award from an organization for criminal defense specialists. No prosecutor may ever exercise what shall be termed egregious prosecutorial discretion—i..e. going after the most sensational targets such as Martha Stewart because it can help his career while provably more dangerous threats to public safety are declined to be brought to trial because of limited resources. The goal shall be, the greatest dangers prosecuted first.

4. Ignorance of the law is an excuse amendment –just what it sounds like. Even without a Plain English amendment (see above) this would be a great help to liberty-- Ignorance of the law not excusing damage done (that can be a matter of civil suit) but the full weight of the law should never fall on someone who honestly did not know. If there were enough judges who knew and could act on this (mandatory sentencing laws) there would be no need for this amendment-- but there aren't and there is such a need. Simply because it will be hard to draft the language does not excuse the legal establishment from even trying-- because, frankly, 'ignorance of the law is no excuse' plus activists legislatures who pass more laws than a man could possibly read in a lifetime plus 'in law the only certain thing is the expense (Samuel Butler)' equals, 'We are all slaves to rent-seeking lawyers and the legal structures they inhabit'. As the common expression goes, 'if they want you they can get you for something'. If that statement is true, we live under a government of men, not of laws-- precisely because there are more laws than people can keep track of. Other than this suggestion, what do you propose to do about that? If you already work for the legal or government establishments, the answer almost certainly is “Nothing.” Thus this amendment--


5. The Hidden Persuaders Amendment-- No person who has worked professionally in the capacity of lawyer, public relations man, polling, advertising (add about 50 others here)--- in short professions that involve manipulating the public psyche and rule card--- may run for office (Unfair advantage).

6. The end of politics as usual amendment. No person who has accepted campaign contributions may run for office. ) (No, really, take a moment to think of what I just said.) No person who has spent more than $1000 on a campaign may take office (This to keep millionaires from buying office). No public subsidies shall be spent on elections. No makeup may be used in a political video. A political video may not be filmed nor edited commercially but only as volunteer work. How to publicize if you can't afford airtime? Dude--You Tube. Or Blog. This levels the playing field. The proposed alternate of matching funds excludes very small candidates. The only alternative is to bring the glass ceiling crashing down and smoosh politicians between the glass ceiling and floor like squashed bugs in a thin museum display case. Spread your hands and smile, boys. You don't want to scare the schoolchildren filing past...


7. The Realistic Span of Control Amendment. No government office may have more than 10 people. No non-military official other than the President and his cabinet.may have more than 3 layers of offices beneath him. Everyone is responsible for the conduct of 3 layers of offices below him.(If you need large numbers of soldiers for a war, organize a million small groups and set them swarming with bidding and interaction procedures to eliminate duplicate effort, just like insects do) If you don't want the responsibility-- and I am leaning toward personal liability-- then trim the offices. Too much work for 10 people? Prioritize. If no kidding an emergency, open more offices-- and then shed them once things get normal.

8. The Freedom of Borders Amendment. Respect for all nationalities will be respected and shown. Reciprocity however shall be demanded in this instance: Any foreign government that refuses American citizens (not taking foreign citizenship) the right to settle there and buy land will not be permitted for its citizens to settle here and buy land. Any foreign government that refuses the children of American citizens on its soil as cause for granting citizenship (and 'anchor baby' status) on its territory for the whole family to emigrate there shall be refused similar consideration here. I used to be a delivery truck driver-- and I always did hate one way streets.

9. The Restoration of the Public Domain Amendment. The Federal Government pays zillions a dollars a year in tight commercial arrangements, negotiating all the while as if it is an idiot. Wal-Mart, with lesser resources, commands far greater effective negotiating leverage. For example, the The Federal Government undoubtedly buys a billion dollars of Microsoft licenses a year. Why isn't there a Microsoft Windows—Federal Edition which is a buyout license freely downloadable by any taxpayer who wants one? (If Microsoft doesn't want this, then the Feds should commission their own Linux that will run all Windows applications. I predict Redmond would rapidly come around). Authors rights must be protected-- but the other side of copyright used to be material in the public domain after X years. So how about that any media company that wants copyright protection for their exclusive printing rights must make the plaintext of a book (printing disabled) available for free (The Baen Free Library already does this-- by most accounts, it increases sales because you can try before you buy). Any media company that produces a movie for exclusive DVD and theatre rights must make a black-and-white or lower-res version (quarter screen) freely downloadable, etc. The Federal Government does not exist ONLY to serve large media companies. Honest.

10. 'Unregulated'-- The Freedom To Opt Out Amendment--- Today a pushcart vendor can be harrassed shut down etc. if he has no license. He needs a license because the city needs revenue—I mean, he needs a license because his food might be a danger to public health. (Exactly why someone who wants repeat customers would poison them escapes me, but maybe you can explain it to me... Only regulation can stop catastrophic events-- just ask Wall Street, circa 2008.) You will never convince those who believe in the need for regulation to stop believing in it. So why not just agree to disagree? This amendment says that ‘Displaying on one's Person or Place of Business a simple sign saying 'Unregulated' shall be sufficient cause to order any local county or state official away other than for purposes of a criminal arrest (this is the only resource for nonpayment of taxes). Ignoring this shall be cause for a Federal Civil Rights suit.’ (State's rights activists may restrict this one to local and county level) Private summons may be served in case of a tort or lawsuit but not summons for benefit—even through private parties-- of the local county or state authorities trying to harass persons who choose 'Unregulated' status. A menace to public safety? Really, do you imagine EVERY person supposed to get inspection does in fact get it-- or pass it , or that no bribes are paid to inspectors? We ALREADY live in a world with incomplete inspection. What this does is remove the bribetakers and PLAINLY label things so you know the risk you are REALLY taking. Would I care to risk the lower prices of an 'Unregulated' food vendor? Personally, no. But someone who needs cheap food would follow the repeat crowds.. A sale that is not made under standard laws and conditions does not cost the state much lost revenue. As for customers-- you see the sign. You don't like the concept of 'Unregulated'? It's called shoe leather. Use some and walk away. NO ONE is forcing you to do business with an 'Unregulated' business. If the quality isn't there, if people get sick eating them, if their scales are cheating--- they will go out of business. It's hard enough to keep an honest, competitive and competent business going when customers are completely satisfied. A sullen cheater of a vendor will simply not be able to compete in the long run. As for homes 'not up to code' is a phrase made to increase the number of homeless in times when the choice is between food and repairs. And we could bring dozens of other examples from real life. Freeing the poor and the struggling (yes, this includes smaller businesses) from regulations is the best way out of poverty-- because being cracked down on (by a public servant making more than you ever will) when you are struggling basically kills the desire for self-improvement for life. The first steps out of poverty are full of legal hazards (see the 'Ignorance IS An Excuse' amendment above). 'Unregulated' status would free the poor from the legal ceiling preventing their rise from poverty. And all it would really do, is recognize the actual reality in many cities across the country today, and stop the extortioners and bribe takers in municipal service. This to fulfill the Biblical imperative (Leviticus 25:34) ...and your brother shall live with you...


11. The 'I Have You Now' Amendment--- Any campaign promise without a weasel word like I shall endeavor, I shall try to etc--shall be kept, the penalty being a pre-signed article of resignation deposited upon taking office being applied by an independent court to whom suit may be brought. See for example http://www.politifact.com/truth-o-meter/promises/ Will it just cause them to add weasel words? Sure. But sooner or later a compulsive promise-maker will revert to form. Odds are, then he is out.

12. The Free Seastead Amendment-- any seastead in US navigable waters shall be exempt from all State County and Local rules and regulations. Let a million enterprise zones boom! http://en.wikipedia.org/wiki/Special_Economic_Zone Note that Wiki here reports that The most successful Special Economic Zone in China, Shenzhen, has developed from a small village into a city with a population over 10 million within 20 years. Note also that pollution releases are fully actionable by ordinary maritime law on the federal level.

13. “⅔ vote to increase taxes or pass a bill --⅓ vote to decrease taxes a void a bill” amendment--- just what it says. This is my wording but it is inspired by something Heinlein wrote. To quote Robert E. Heinlein’s fictional character Professor de la Paz (in the 1966 Book The Moon Is A Harsh Mistress) on the subject I suggest one house of legislators, another whose single duty is to repeal laws. Let the legislators pass laws only with a 2/3rds majority ... while the repealers are able to cancel any law through a mere 1/3rd minority. Preposterous? think about it. If a bill is so poor that it cannot command 2/3rds of your consents is it not likely to make a poor law? And if a law is disliked by as many as 1/3rd is it not likely that you would be better off without it?

Changing the Constitutional structure of the Houses of Congress sounds like a much bigger project to me than this proposed amendment.

14. Rand Simberg has suggested “a Constitutional interpretation approved by 2/3rds of the House of Reps in two consecutive terms should be able to override a Court decision as to the nature of the law.”

I would change that to three consecutive terms, but currently there is no way to rebuke the Supreme Court for positions in law that outrage the public they are supposed to serve. This would put them on warning from the Congressional side (as FDR’s ‘packing the court’ threat in the late 1930’s put them on warning from the Executive side).


15. William Howell, the Speaker of the Virginia House of Delegates and Randy Powell suggest http://volokh.com/2010/09/16/the-case-for-a-repeal-amendment/


the Repeal Amendment reads:


“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
* This has the great advantage of giving people in a given state the ability to bring an objection to power’s abuse on to the national stage with just a local election (note that two-thirds of the states must agree with them, but they can raise the issue, which itself is huge)

* Chris Travers has suggested modifying this so ⅔ the governors of the states can issue a finding to effect the repeal. In my view this would be much more effective and quicker to coordinate (especially in the case of financial or national emergency). Indeed, in my view the NGA might gain great prominence http://en.wikipedia.org/wiki/National_Governors_Association because a matter of discontent to them would be something the Federal government could not ignore. And a single governor could raise a national disgrace or misjustice to prominence by urging action through that forum.

16. Rethinking Corporate Personship or Personal Corporality-- Something has to be done about the greatly changed balance of power between the largest corporations and people (Compare the 18th Century to now). Having immortal, super-powered invulnerable individuals share the world with mortal, weak and hurtable beings seldom works out in fiction for the weaker party-- why should it work any better in fact?

The analogy may be to homestead laws http://en.wikipedia.org/wiki/Homestead_exemption which provide some measure of legal protection (depending on the state) against seizure of an only home-- in other words a last refuge against the powerful for the weak.

In most cases, homestead exemptions do not apply to forced sales to satisfy mortgages,mechanics liens, or sales to pay property taxes.

Suppose we had an amendment stopping the ability of the state or large corporations from seizing your home. (Judgements might be gotten but would not be enforceable except by mutual consent, usually involving a writing down of debt) Then people who own their home would own it, not merely rent it from the state and risk losing it when they lose their job and can’t pay taxes. http://en.wikipedia.org/wiki/Tax_sale This is a survival of the king’s absolute authority and while it is understandable why governments like it is is not clear why citizens should like unlimited sovereign power over their dwelling anyone quite so much..

The essential change in the balance of power is either making some kind of universal corporate shell legal fiction around a person such as actual corporations enjoy today which will confer to the person a certain core nucleus of immunity against the actions of the state. (For egregious acts this may be suspended much as in theory a powerful corporation may have its charter revoked- but in practice both should be very rare events.)

A person’s corporate shell legal protections should have a core baseline income that is immune from taxation, the right to a minimum value dwelling immune from seizure for any reason, and similar protections and immunities analogous to what corporations enjoy-- OR if society agrees this is impractical, then perhaps all large corporations such as we have today should be broken up to smaller ones, with limited liability protection but no shell ownership allowed-- no nested subsidiaries-- no hidden chains of ownership. I don’t care if Donald Trump has a hundred billion dollars, for example (not to pick on him, just a famous name) but I want to see his ownership of any organization clearly listed on the internet in a transparent way. There should be no corporate taxes but individual ones --with transparent ownership possibly more taxes will be paid-- and those amounts should be public. We either need, in summary, the practical immunities and shell protections of large corporations extended to individuals (and lest you object, even today, corporate officers CAN be arrested-- and in the case of universal corporality, everyone would be his own corporate officer) or we need a level playing field, with every unequal individual being without a shell to hide behind (this would protect the poor more than the rich, in practice, for the poor are already protectionless) so that corporations’ successor organizations may ironically lobby for increased liberty when they themselves are bound under the laws of individuals.

17. Giving Governors of the States, acting in their own state only, the power to exempt state businesses that do not sell DIRECTLY to other states from Federal regulations. (Interstate commerce may still be regulated--- but only the businesses that actually do the selling, not the manufacturing.) The same proposed Amendment would render Federal government attempts to back-door restrict businesses through punitive actions against their wholesalers, cause for States in the person of their Governors to invoke a second power-- the ability to abolish or impeach a Federal agency as a whole or merely the office of that agency that does it (literally Acts of Nullification against that organ. This of course would be a Federal Constitutional Amendment so as to give it teeth.

18. Giving Governors of the States voting in assembly or remotely, the power to veto a Supreme Court decision. (NOT as individual Governors, in their own state, as the last amendment. ) Effectively the Supreme Court of the 19th Century seized its position as ‘last court of appeal’ on the Constitutional chain. Yet, who guards the guardians? Abuses of Congress or the Federal executive must be protected against, and the Supreme Court performs that function. Allowing the Governors to veto the Supremes would give the people’s directly elected representative another tool to grasp back liberty without directly interfering with the power of the Supreme Court on the national level, which could be quite perilous.



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