The New Bill of Rights
By Rex L. Fuller III
We Americans are still a free people. Indeed, what makes us Americans is that we are free and deem it the right of all people to be free. Paraphrasing Lincoln, survival of our government of free people is the last best hope of mankind. The vitality of that hope may be the well-spring behind the spread of democracy we see around the world today.
Yet, as Americans we find ourselves overwhelmed by the power and presence of government institutions. The originators of these institutions may have defined their purposes with the best of intentions. However, as presently evolved, they cause us to wonder whether we even continue to have the freedoms that we cherish at all.
Sadly, the right to earn a living and to live peaceably on one's own property have eroded. The tribute that must be paid to the government has diminished the freedom to earn income. The first four months of the year yield no "income" at all and must instead be spent working for the government in the name of taxation. Viewed another way, one of two working spouses works nearly all year just to pay the federal taxes. We may use what is left to enrich our lives and homes but regulation of lifestyle and property, or the right to use it, attacks what is left. Ominously, the tax collectors and the regulators both enjoy the power to apply the criminal law to individuals at will.
Indeed, very few if any government institutions lack the power to directly affect the lives and property of individuals. Just imagine, who would have thought a generation ago that the Army Corps of Engineers would be empowered to decide who gets to keep their property in the name of regulating wetlands? The FDA, OSHA, EPA, the Fish and Wildlife Service, the Federal Reserve, and--it cannot be overemphasized--the IRS, all have powers to make decisions affecting all of our lives or property.
IRS intrusiveness is only one current testament to the overreaching powers facing Americans. Congress originally meant the IRS to be a green eye-shade agency, accountants neutrally collecting a tiny fraction of income. It became an uncontrollable horde taking everything it can lay hands on to insure that a huge share of one's honest labor goes directly to the government.
But the problem does not end with well-intended agencies overgrown to Frankenstein proportions:
In American society today, we find government sponsoring or regulating things that the framers would have thought it nonsensical for the government to be involved in at all. The grants by the NEA for performance art--never mind the content of the art--and the prohibition against even voluntary school prayer come quickly to mind as examples of what the framers would find nonsensical governmental involvement.
Some would argue that whenever government takes up anything, removing it from exercise by a free people, freedom ceases to live. Even if one does not accept that as universally true, one may still agree that it is true beyond an uncertain point in any given instance. Likewise, we may take it as true that government has passed this crossroads in regard to things such as public prayer, and regulation of certain property ownership, such as areas designated as affected by environmental policies, and of some businesses. Simply put, Americans must resubordinate government to the higher duties of conscience and family, lest they remain past the crossroads where freedom stops.
Revival of freedom of the people requires return of thelevers of power to them. Important levers are currently, improperly in government hands. These include the power to silence the free exercise of religion, to lay direct federal taxes on income, and to have bureaucrats regulate individual conduct. Consequently, the path to restoration of freedom traverses these fields.
To be sure, when the levers of power are in the hands of the people, personal responsibility must guide their hands, or the use of freedom becomes license. That is the nature of freedom and it is the bargain struck with us in the U.S. Constitution. Restoration of the primacy of freedom simply delivers on the terms of the bargain we are entitled to. The restoration of freedom depends in part upon actions of the two major political parties. The actions that the parties take will play out in a variety of ways, primarily including debate in the Congress and in the public media.
However, conventional debate between the two major political parties regrettably too often decays into mere sharpshooting for public relations. Except with respect to some single-issue groups--for example, those favoring racial preferences who universally support Democrats, sometimes out of what they believe to be genuine aspirations--not even large segments of the people see either of the parties as a vessel for their highest and best aspirations. The public will not trust the two to correct the current imbalance favoring government: the freedom of the people would be sacrificed for partisan advantage. The people themselves must generate the effort.
The procedure to be used is also critically important to the success of the effort. Unfortunately, because the issue is the reach of government, none of the branches of the federal government can reassert control. Lust for spending riddles the Congress. The Presidency is effectively a hand-maiden of political contributors and dependent on expanding bureaucracy. The courts never had a proper role in directly controlling the size of government. Moreover, after initially objecting to the first installments of FDR's government expansion, the courts have since ceded what little restraint on growth of government that they could have exercised by renouncing "substantive" due process and emptying the source constitutional clauses, particularly the commerce clause, of any real limiting content. Thus, the conclusion is unavoidable that the size of the federal government is beyond effective control by any process other than amendment of the U.S. Constitution.
The "New Bill of Rights" would use the amending process to return the levers of power to the people. It consists of thirteen amendments designed to reduce the size and power of government and to remove the incentive to expand the size and authority of government. Although the subject matter of most of the amendments was discussed in one form or another at various points of our history, to my knowledge not all have been, and the text of these amendments is not drawn from any particular source (as the movie credits say, similarity with anything else is "coincidental"). Even so, nothing is new in the world--I simply do not know specifically who to credit.
Origin notwithstanding, there is something of a vain hope nature in the New Bill of Rights: we have come so far down certain roads--judicial activism comes to mind--that reversing the situation, as each of the Amendments seeks to do in some way, is at best an uncertain proposition. Without question, some of these amendments go beyond the commonly accepted parameters of the "doable." However, they all seek to revitalize individual liberty and to enhance the incentive to work and to create, at the expense of the authority of government. They do so without crippling the essential authority of the state in military and civic matters properly within that sphere assigned in the Constitution. These Amendments are offered in the hope, prayerfully not a vain hope, that true good will can mollify even the fires of ideologues who can be expected to oppose them.
The New Bill of Rights
Exhaustive discussion of each of these amendments is beyond our scope. However, it is important to state the principle on which each rests.
The first of these amendments restores the primacy of the family. There is no constitutional protection for parental rights, something the Founders would not have thought necessary. Today, whole movements are predicated on control children without parental voice and this should be controlled. For example, under this amendment, no one may deny information to parents with respect to any matter affecting the well-being of their child. Procedures purporting to interfere with that right would be unenforceable.
The second amendment creates a clean slate for each individual with respect to regulations. Today, jail awaits those who violate regulations of many kinds, including those issued by OSHA, EPA, IRS and other agencies. It is not a defense to say you did not know the regulation made your action a crime. All you have to know is that you are not sleep-walking. This gives far too much authority to faceless bureaucracies. Under the amendment, if a regulation is of such overriding importance that it must control individual freedom, then it must first pass muster as a law, not merely a pronouncement from a bureau.
The third amendment restores individual freedom to support or oppose political activity or art without compulsion by government, employer, or union. Forcing a person to support political activity or art against their will mocks the First Amendment and smacks of the worst of the fascist regimes. Yet, that is precisely the result of compelling contributions or taxes for support of political or artistic expenditures. The amendment would provide protection from such compulsion.
The fourth amendment revives the free exercise of religion provided in the original First Amendment, which judicial interpretation has curtailed. Opponents of free exercise assert that, "Anyone can pray anytime they want." They are wrong. No one is allowed to pray aloud in during school hours in public schools. No one should be forced to pray, or even necessarily to listen while others do. Neither should all prayers be silenced.
The fifth amendment states the right to freedom from foreign or other powers not sanctioned under the political jurisdiction of the United States. Without such constitutional protection, a "court" established by an international body may take jurisdiction of an American who violates whatever "international" norm or custom the court determines applied to the circumstances, such as disrespecting a cultural icon, working against an international "right," yet to be defined, or any other rule "evolved" from international law.
The sixth amendment eliminates federal taxation of the fruits of one's labor, income taxation. The purpose of such labor being almost universally to benefit one's family, it also frees transfers to children from tax. Although a strong case exists for repeal of the income tax on grounds of efficiency, or of economic policy, the moral imperative of freedom of labor is paramount. The United States was without federal income taxation for most of its history and its people and economy would be much better off to remove it.
The seventh amendment requires a two thirds majority of both houses of Congress to create or increase any remaining federal taxes, such as on imports, exports, or if enacted, on sales. The purpose of this amendment is to permit taxation only for purposes agreed to by a broad consensus among the population and to prevent taxation for purposes opposed by half of the representatives of the population.
The eighth amendment prevents spending in excess of revenue, except in time of war actually declared by Congress.
The ninth amendment limits spending for outlays to money collected in those Congressional districts represented by members who voted in favor of the spending and returns any unspent money back to the citizens of the district where it was collected. The purpose of this amendment is to halt the voting of money from the treasury by the majority in favor of itself--which Tocqueville said no democracy could survive.
The tenth amendment requires advance appropriations for the commitment of military force in order to prevent the President--even with the best of intentions--from unilaterally doing so. For example, the open-ended commitments of force in Korea, Viet Nam, and Bosnia would not have occurred without specific, advance Congressional approval.
The eleventh amendment permits anyone whose rights under these amendments are violated, including a taxpayer who is taxed or whose taxes are spent in violation, to sue to have their rights declared. This reverses the ruling of the Supreme Court that taxpayers do not have standing to sue to protect their rights. It will prevent illegal compulsion of the taxpayer, but will not permit suits for damages, or injunctions, the multiplication of which might lead to a kind of universal veto.
The twelfth amendment, prospectively repeals the judicially created "incorporation doctrine." This judicially created "doctrine" says that certain constitutional provisions are incorporated in the Fourteenth Amendment and are thus applicable to the States. It is through the incorporation doctrine that the courts established the many technical rules that have so choked the criminal dockets, Miranda "rights," exclusionary rules, and endless appeals. There is no longer any justification, if there ever was, for this effort by the courts to expand their power at the expense of the freedom of the people expressed through state legislation.
The last, the thirteenth amendment, limits the consecutive years in office of members of Congress to six, in order to remove the incentive to increase the power of office holding by raising spending or otherwise serving interests dependent upon the government. There is a broad consensus in favor of term limits. The only question what length they should be. This amendment proposes the shortest, six years, to eradicate any incentive for a legislative act to be based on its impact on continuing a legislative career. It would reorient Congress into a legislature of citizens.
These amendments omit several issues which many who would otherwise support them might consider to be essential, including prohibitions on racial preferences and abortion. The former is already the basis of judicial decisions outlawing such preferences--in other words more explicit language is unnecessary--and the latter is best left as a matter of state law, inappropriate for treatment within the U.S. Constitution. However, the exact number and formulation of the amendments in the New Bill of Rights should remain subject to open, honest and genuine discussion.
The New Bill of Rights thus seeks to restore the primacy of the family, of religious belief, of freedom from authority outside of representative democracy, of work unburdened by federal income taxation, and of limits on spending by government.
Groups and interests who see their success as tied to government programs will portray each of the amendments as "controversial." Advocates of the New Bill of Rights will have to remain public-spirited champions of freedom, without rancor or political gamesmanship, in order to successfully introduce and win adoption of these amendments. One may recognize that it should not be necessary to seek restoration of the principles embodied in these amendments and yet remain faithful to the cause of doing so.
That it is necessary means that we must restore them. In the name of our sacred American freedom, we will.
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