The Narrow Case
The background of the run-up to next year’s election has already begun freighted with deep inertial disaffection. Injustice is seen on every screen at every hand. Politically, the ‘outsider’ is ‘in’, be it Trump, Carson or Sanders. Term limits, ineffectual attempts at campaign finance reform and lobbyist limitations, popular protest movements, politically charged court cases, a generalized malaise of public and private cynicism and a broad apathy–even political terror have been resorts symptomatic and reflective of this vast disquiet. Most people believe, not without cause, that ‘the system is broken’.
So, what can be done? Can we find an effective treatment for the disease, rather than continue to endure the frenetic urgency of treating an ever worsening set of symptoms? The reasonable solution, in general terms, would be to use what we already have at hand to fix what’s wrong in the most just, fundamental and efficient way possible. This proposal essentially consists in the presentation of an appendix with an embedded concomitant amendment as an addendum to the US Constitution. This would not require a formal Convention, merely a public vetting which would then proceed through the established channels (the states and Congress).
The intent of this proposal is to build its case on two intrinsically related fronts, first, the specific case based on the US Constitution itself and the Declaration of Independence, and second, the fundamental and general case using the axioms of individual human existence The broader proposition is threefold: the justification for the action, the specific contents of the action and a path to its implementation.
The wording of the Constitution itself is well known for the ambiguity that allows for such a broad spectrum of interpretation as history has witnessed. The peril of disunity in the face of military vulnerability obliged the legal assimilation of the ‘peculiar institution’ of slavery into the economic and political infrastructure of the newborn nation. This institution existed in blatant contradiction to and disregard for the principles enshrined explicitly in the Declaration of Independence and implicitly in the Constitution. The consequences of this social and political cognitive dissonance are still intimately interwoven into many if not most of our most contentious internecine national conflicts. One of the possibly most overlooked of these consequences is the pragmatically motivated ambiguity of the language of the Constitution. The legally ratified existence of slavery precluded the possibility of an explicit statement of the conclusion logically suggested by the founders’ premises.
By “…the Laws of Nature and of Nature’s God…We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…Governments…(derive) their just powers from the consent of the governed…( emphases added)”
This, of course, is from the Declaration of Independence, not the Constitution; nonetheless, it is a clear statement of foundational principle. “Nature and…God” indicates that the source of “(equality) and “unalienable Rights” with which “men…are endowed” is not strictly dispositive. In other words, whether this endowment is from God or nature is irrelevant to its validity. These rights consist at the very least (“among these”) of “Life, Liberty and the pursuit of Happiness”. This trinity constitutes, in fact, one single right. The right to life can only mean the right to sustain it, which in the context of the pursuit of happiness, can only be done with the liberty to decide what that happiness consists in and how to justly pursue it. “Governments” derive “their just powers from…consent”. The clear implication here is that government must be just and that the core of that justice is consent.
Let us now turn to the actual document in question, the Constitution, more specifically, the Bill of Rights. A summary of the rights they guarantee follow:
• 1st amendment-freedom of speech, assembly, press, and of/from religion
• 2nd amendment-right to bear arms
• 3rd amendment-freedom from compulsory military commandeering of domicile
• 4th-8th amendments-freedom from arbitrary searches, self-incrimination, uncompensated property seizure, double jeopardy and cruel/unusual punishment; right to bail, legal counsel, trial by jury, present evidence, question witnesses, due process including a speedy public trial.
The next amendment, the ninth, is at the crux of this proposal. It provides the opportunity to marry the extant and inherent, the general and specific, the private and public. As such it merits presentation here in its brief and ambiguous entirety.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The clearest and simplest reading of this passage is that the Bill of Rights is not an exhaustive or exclusive list of “…rights…retained by the people”. In light of this, let us now return to the first eight, classifying them by their underlying premises.
• 1st amendment-freedom of conscience/access to true facts
• 2nd amendment-right to self-defense (freedom from assault)
• 3rd amendment-freedom from arbitrary compulsion (assault)
• 4th-8th amendments-right to justice as objectively and directly pursued as possible(=freedom from injustice)
What these rights and freedoms have in common is a basis in consent, the same consent by which governments derive their “just powers”. All the rights enumerated are set against specific examples of what the founders considered the most egregious violations of consent (that is why they are enumerated!): deception, assault, injustice. All the rights in the Bill of Rights are circumstantial variants of a single, underlying right. The placement of the 9th amendment could well be interpreted as a ‘backstop’ implying not only the existence of additional rights but a common source for them all as well. How else could we recognize these “other(s) (rights)”? Are they created out of thin air or some generalized process? The ambiguity of this text may be the single greatest flaw of our founding document.
Its placement between the eight enumerated amendments and the tenth is also significant.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This linear subsequence could be interpreted as an implied constraint on individual states as well as the federal government with respect to the rights, express or implied, contained in the first nine amendments. After all, why would “the rights…of the people” be any less “unalienable” with respect to the states than with the federal government? It is noteworthy, despite the common phrase ‘states rights’ that government exercise is always referred to as “powers”. The term “rights” always refers exclusively to “the people”.
If rights are “unalienable” this must mean they are not government concessions. Governments may facilitate rights or obstruct them, but they are actually inherent to the individual (“endowed”). Social comity is always ultimately a question of individual constraint. One of the bitter lessons of terrorism is that external controls are ultimately insufficient (and often if not always counterproductive) to the prevention of willfully destructive acts. A cop on every corner (literally or metaphorically) will never be enough.
An excellent domestic example of this principle is Prohibition (the historical era) and prohibition (the general policy). If prohibition is defined as the legal proscription of an act in which all the participants are willing, then it is a policy demonstrably doomed to failure by its very nature. It is not for nothing that prostitution is called the world’s oldest profession. The only practical effect of its prohibition has been the creation of a seamy shadow world engendering pimps, arbitrary enforcement and the denial of the legal protections and processes that would normally apply to the participants of this activity.
The prohibition against gambling spawned numbers rackets, strengthened a culture of police corruption and flourished in a ‘wink, wink’ attitude of white lie cynicism in the general populace.
Historical Prohibition gave our nation its first taste of modern gang warfare, enriched bootleggers, and created modern gangsterism. It also corrupted cops, poisoned consumers with rotgut, and its ‘open secret’ social atmosphere added a frisson of titillation as well as a corrosive layer of public cynicism to an era of exuberant excess (does this sound familiar?).
The consequences of our present era of drug prohibition are almost identical in their fruits of violence, corruption and cynicism. Our sclerotic legal system, world leadership in absolute and relative incarceration rates and the social and economic distortions we all (but the poor disproportionately) suffer are the direct and indirect results of the violation of this principle.
You cannot legislate morality. It is not merely difficult, onerous or meddlesome, it is definitionally impossible. The ends never justify the means. The futile reality of the War on Drugs, which is becoming clearer to the general populace and is ever more openly acknowledged by community leaders (including politicians), weighs more in the reality of people’s lives than the hypothetical end of a Drug Free America.
It is crucial to understand that the literal impossibility of dictating morality does not mean that the law should not be based on strict moral standards. On the contrary, there is nothing else that the law could legitimately be based on if it is truly to be an instrument of justice. The key is that the moral standard applied must be non-arbitrary. This is really only possible in interactive (transitive) circumstances. It is impossible for the State (or anyone else) to substitute its judgment in purely subjective circumstances. The results of the utilitarian attempt to do so abound for all to see. We can presume to our hearts’ content that Prohibition and prohibition were engendered with the very best of intentions, but the results on the ground speak for themselves.
While the questions of morality, justice and the standards we measure them by have always been important, the exponential growth of population and technology has made these considerations absolutely vital. Any common, reasonably well-off individual is now capable of wielding power that the greatest kings of old could scarcely dream of, powers of destruction, movement, knowledge and communication. Bad decisions are more consequential than ever before, yet we are ill-equipped to deal with this reality in the only way it can ultimately be resolved.
The phrase ‘innocent until proven guilty’ is not found anywhere in the Bill of Rights, but it is an established principle of our legal system through our heritage of English common law. It is also clearly implied in the contents of amendments 4-8.
Liberty is the political analog of the legal presumption of innocence under the law. Liberty is the presumption of the right to do as you will. Just as the presumption of innocence establishes guiltlessness as the default legal state of the individual, so consent assumes liberty as the individual’s default political state. Just as guilt is presumed to be an exception whose burden of proof falls on the State, so too the restrictions that distinguish liberty from license are exceptional; and as with innocence, the burden of (objectively supported) justification falls squarely on the State. It should go without saying that the presumption of innocence does not preclude the possibility of guilt, nor does it shield the guilty from its consequences; likewise, liberty does not preclude the possibility of immorality or injustice, nor serve to deflect the natural consequences attendant to the former or the retribution appropriate to the latter. Both presumptions are based on the concept of consent. The principle underlying the presumption of innocence is that the restriction of consent (the penalty) must be factually justified by the agent of the restriction. This is the very definition of political liberty. Both of these presumptions lie at the heart of the fundamental terms necessary to build the non-arbitrary legal reform we so desperately need. The template is already in place. All that is necessary is to focus the picture.
If the Declaration of Independence and the Bill of Rights constitute the arch that supports the process and informs the penumbral mythos of our legal system, it is clearly the concept of consent that is its keystone. This notion is marbled through the popular political ethos; ‘your rights end where my nose begins’, ‘live and let live’; “good fences make good neighbors”. Historical circumstances once made it impossible for the founders to be completely explicit; we labor under no such impediment.
If consent is to be used as a legally valid touchstone, it must have a strong, precise and clear definition.Consent has three natural, limiting factors aside from the tautological, but indispensably definitive characteristic of totality. That is, in order for an act to qualify as consensual all of its participants must be willing. The three definitive constraints on true consent are competence, reciprocity and publicity.
Competence refers to the ability of an individual to make an informed choice, formally known as the power of informed consent. If someone is incompetent to exercise this fundamental faculty, they are definitionally incapable of consent. Under our legal system, adults are presumed to be competent; children (properly) are not. The system also provides for exceptions to this default condition, a process of emancipation for minors, a process for the declaration of incompetence for adults.
Reciprocity simply means that if you commit an act violating the consent of another, you lose the protection of consent, or more accurately, consent becomes moot. It is logically impossible for consent to violate itself since its definition entails mutual volition across the threshold of transitivity. This is where the right to self-defense and many of the “just powers” of government reside.
Publicity refers to the interface of the two elements of a liberal democracy. The ‘liberal’ part refers to the absolute, irremovable protection of the inherent rights of the individual, the ‘democracy’ part refers to the right of the majority to choose leaders and guide public policy (to the extent that it doesn’t violate the aforementioned rights). The majority may have the “just power” to relegate certain activities to private venues, but no right to absolutely proscribe them if they meet all the criteria of consent.
Given all of the above, the 9th amendment is a natural point of departure for what would amount to a Constitutional tune up. The addition of the 14th amendment complements and confirms the 9th. The very purpose of the creation of the 14th amendment was to explicitly establish and confirm, through a process known as incorporation, that the states were as subject to the constraints of the rights enumerated in the Bill of Rights as the federal government. In this sense, this confirmation of the universality of the enumerated rights is a complement to the ninth’s clear statement that they do not constitute an exhaustive list. The intent and execution of this Reconstruction amendment, especially the due process and equal protection clauses, clearly imply the existence of an inherent invariant, which at the very least could be termed an impressionistic sense of fairness. This would seem to confirm that there is a common notion that underlies the enumerated amendments as well as the Founders’ impulse to assure that the way be left open for more. In Griswold v Connecticut the US Supreme Court found a “penumbra of privacy” implied in these amendments. The most significant precedent for this ruling was found in John Marshall Harlan II’s dissent in Pole v Ullman (1961).
“(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints” (emphases added).
‘Privacy’, like the enumerated rights specified in the Constitution, is circumstantial. Justice Brandeis’s “right to be let alone” implies more than just Webster’s “withdrawal from public view”. There is no expectation of privacy out in public, but each of us carries a ‘penumbra’ of consent with us wherever we go.
An explicitly stated unifying principle would narrow and focus the scope of judiciary interpretation and ultimately render the same effect on police discretion. This principle provides a more precise tool with which to facilitate the resolutions of conflicting interests in the courtroom. When every potential crime has at least one actual unwilling victim, policing will be easier, safer and more efficient. It would also serve to diminish some of the mutual, uneasy ambivalence that colors relations between the police and many communities. This alone would increase the efficacy of our legal system. Any circumstance which is not a question of justice in some sense should not and would not be the direct concern of the law.
What follows is a proposed text for this addendum.
Addendum to the Constitution of the
United States of America
Be it known that the precedence of the laws of this Constitution shall remain in full force except as in conflict with the alterations specified herein.
Whereas the 9th amendment to this Constitution provides for rights additional to those specifically enumerated in The Bill of Rights,
Whereas the Declaration of Independence posits the unalienable endowment of consent as the source of liberty and all the just powers of government,
Whereas the 14th amendment specifies that the states and all inferior jurisdictions are subject to the selfsame constraints, guarantees and protections as the federal government with respect to said enumerated rights,
Therefore, be it affirmed that;
Neither Congress nor any inferior jurisdiction shall pass any law prohibiting the free exercise of the individual Right of Consent as defined herein.
The right of consent shall consist in;
Totality: Only those acts wherein all participants willingly assent are consensual. Where this is at issue appropriate jurisdictional adjudication shall apply.
Competency: The free exercise of consent is void absent the power of informed consent.
Reciprocity: The violation of consent renders void its protections.
Publicity: Jurisdictions may limit certain constitutionally unenumerated acts or classes of acts to private venues subject to due process as prescribed by law.
This proposal is not offered as a panacea, but as an essential tool to more precisely focus the force and scope of a legal system lost and bogged down in what has become an almost ritualistic shell of procedures to the exclusion of the very principles that justify them.