A to-do list for repairing US democracy

 

If we're lucky enough  not to spiral down into dictatorship during this fall's Presidential election in the US, we need to have a ready-made to-do list for repairing democracy.

To start off a conversation on that, here's my current thinking…

Draft Proposed “Freedom Amendment” to the US Constitution

(Rationales, in green, are informational, not part of the amendment.)

In order to solidify and preserve democratic rule within these United States, these changes are hereby ordered to all United States policies and procedures:

1. Voting

1. No Electoral College. The Electoral College is hereby dissolved. Presidential elections shall henceforth be determined directly by majority vote of all United States citizens who are eligible to vote.

2. No commercial interference in elections. No for-profit corporation or company, nor any non-profit corporation or company that as their primary business offers products or services for commercial sale, may contribute to campaigns or other activities that could reasonably be seen as trying to affect election. (The ruling in Citizens United v. FEC is vacated.)

3. Restore the Voting Rights Act. The ruling in Shelby County v. Holder that voided section 4 is hereby reversed, restoring this Act to its full form and asserting full Constitutional backing to the Act. Preclearance is hereby required for all 50 states equally.

4. No “gerrymandering.” The practice of gerrymandering while drawing district boundaries at the federal and state levels is hereby disallowed.

5. Ranked-choice voting. All federal elections shall be handled via a ranked-choice voting process.

2. Ethics & Oversight

1. Supreme Court Ethics Code. The Supreme Court shall henceforth be governed by the same ethics code that binds all federal courts.

2. Congress and the Supreme Court shall be subject to term limits.

   1. Senators may be elected to no more than 3 terms.
   2. Representatives may be elected to no more than 5 terms.
   3. Supreme Court Justices may serve no more than 18 years.

3. No one is above the law. Elected members of all three branches of government are subject to all laws, just like any other person, even though prosecution of such a person for crimes must wait until that person leaves office. In cases where immediate prosecution might be important, impeachment is an option.

4. Senate impeachment votes are not optional. If the House impeaches someone, the Senate must immediately perform all business necessary to assure a timely vote on that impeachment; this process is not optional and may not be postponed. Once an actionable concern has been raised that a public official might have committed a crime, the public has an interest in swift resolution.

5. House and Senate impeachment votes are temporarily private. Impeachment votes by both House and Senate will be recorded and tallied privately, preferably electronically, with only the aggregate result reported immediately. Individual votes will be held securely in private for a period of ten years, at which time all such votes will be made a public part of the historical record.

6. Public office is not a refuge to wait out the clock on prosecution. Any clock for the Statute of Limitations does not run while prosecution is not an option. This applies for all elected persons for whom indictment or prosecution is locked out due to participation in public office, but in particular for POTUS. It may be necessary to the doing of orderly public business not to prosecute a President while in office, however public office is not a refuge in which someone may hide out until the clock runs out on otherwise-possible prosecutions, whether that clock began before or during time in office.

7. Pardon power is subject to conflict-of-interest (COI) restrictions. It is necessary to the credibility of all public officials in a free society that there be some reasonable belief that rules of law do not create options for corrupt officials to abuse the system. Presidents and other state and federal officials embued with the pardon power may never apply such power to themselves, their families, or any other individuals with whom there is even an appearance of conflict of interest. No such person may solicit any action by anyone on promise of a pardon. Any single such action, attempted action, or promise of action where there is a conflict of interest that is known or reasonably should have been know to the party exercising pardon power is an impeachable offense and a felony abuse of power subject to a penalty of ten years in prison.

8. Independence of Department of Justice. The head of the Department of Justice shall be henceforth selected by a supermajority (2/3) vote of the House of Representatives, without any special input from or deference to the Executive.

   Rationale: Assure DOJ operates independently of the Executive, its mission being to fairly and impartially uphold Law, not to be a tool of partisan or rogue Presidential power.

9. Independence of the Supreme Court. Justices of the DOJ shall be henceforth selected by a supermajority (2/3) vote of the House of Representatives.

   Rationale:

   1. When SCOTUS must rule on the validity of Presidential action, a conflict of interest is created if those Justices might be appointed by that same President or even a majority party.

   2. Since the Constitution requires a supermajority to change its intent, an equivalent degree of protection is essential for choosing those will will interpret that intent. Recent history has suggested that it was easier to change the Court than to change the Constitution, with catastrophic effect decidedly unfair to the majority of citizens.

   3. A President is more than Appointer of Justices, yet that singular capability is so powerful and lasting that it often dominates election campaigns. Citizens need to be free to hire Presidents for other reasons more unique to the moment, such as good judgment; logistical, management, or negotiating skill; expertise in technical or scientific matters; or even just empathy with public issues.

3. Rights of People

1. Corporations are not people. Corporations are legal constructions, nothing more.

   Rationale: To say that they are independent people, is to give some actual people (those who own or control them) unequal, magnified, elitist, or otherwise distorted power over others. There is no place for this in a democracy that purports to speak of all people being created as equals.

   1. No Implicit Rights of Corporations. Any powers and duties of corporations must be explicitly granted to them, as coporations, whether by the Constitution or by legal statute, and henceforth must never be derived from any implication of imagined personhood.

   2. Explicitly Enumerated Rights of Corporations. Long-standing legal powers and duties of corporations such as the right to sign contracts, the right to own property, the responsibility to pay taxes, and any legal responsibility under tort law are hereby acknowledged by express enumeration in support of demonstrated corporate need and are no longer intended to be inferred as part of any preposterous fiction that corporations are just another kind of person.

   3. Non-Rights of Corporations. Alleged rights such as, but not limited to, rights of free speech and religious rights for corporations are hereby clarified to be nullified and without basis. A corporation has no automatic rights of people extending from any metaphor of being person-like. Politics is the province of individual persons, not corporations. Corporations exist for sales, subject to the rules of laws made by individuals, not vice versa.

2. Bodily autonomy right. All mentally competent people have a right to autonomy over choices of medical procedures affecting their own body.

   1. No Forced Pregnancies. From the time of conception to the time of birth, no government nor any other person may have a superseding say over a pregnant person as to any matter relating to a fetus.

      Rationale: This should already follow from the Religious Freedom Clarification, but it is too important to leave to chance. To say that any other person could make such choices would be to allow their religious freedom to infringe the religious freedoms of the pregnant person.

      Also, the term “pregnant person” is used here intentionally to include that adulthood is not a requirement of bodily autonomy. In general, any person who has not been legally ruled mentally incompetent is entitled to self-determination on matters like this. Not even a parent should have superseding control, since a parent will not have to live a lifetime with the consequences.

   2. Fetal Disposition is a Private Matter. Whether a pregnant person wishes to refer to a fetus as simply a fetus, a potential life, an unborn child, or an actual child is a personal religious choice to be made by that pregnant person. No law shall impose a policy on this.

      Rationale: To say otherwise would be to deny the obvous fact that people simply differ on this matter. To assume there were some single right way that everyone must adhere to would be to give dominance to some religious philosophies over others.

      It's a compromise, but the only one that it allows each person the best guarantee of at least some autonomy in a society where not everyone agrees and we are not likely to change that fact by fiat.

      Also, and importantly, some pregnancies are not successful and even in a society where we permit abortion for those who weren't wanting to be pregnant, it would be callous and undignified not to acknowledge the legitimate loss to others who sincerely wanted to carry a pregnancy to term but were unable. It is possible to be respectful in both situations, by feeling the grief of someone who wanted a child and not manufacturing grief for someone else who did not.

3. Right to Choose a Marital Partner. Among consenting adults, the choice to choose who to marry must not be restricted due to race, religion, gender or sexual orientation.

   Rationale: This has been accepted already and it is not appropriate to roll that back. It was a good idea anyway, though, because happy families add an extra level of safety net protection to society. Family members try to take care of one another during sickness and other hard times, and this hopefully reduces some amount of stress on public safety nets.

4. Religious Freedom Clarification. The right to religious self-determination is a basic human right.

   1. Religious Choice. All people have the right to explore religous choice on their own timeline and terms. No one is required to pick any particular philosophy, or any philosophy at all, or even to make a choice.

   2. Religious Equality. Religious protections span all religious choices (and non-choices), and hence are accorded equally to all people. No person may be accorded second-class legal status on the basis of their religious philosophy—or lack thereof.

      Rationale: So atheists, agnostics, etc. are still due religious freedom protection. Answers to “Is there a God?” are still due religious protection if the answer is “no” or “I don't know” or “I haven't decided” or “I don't know what that means” or “This is not a binary question.”

   3. No State Religion. The so-called “establishment clause” of the First Amendment is hereby clarified to mean that the United States takes no position that might give the appearance of preferring one religon over another.

      Rationale: We are not, for example, a Christian nation. Nor a Jewish nation. And so on. And yet the US is a nation that intends to treat each religion and non-religion in the same supportive and respectful way, and expects each of these religions to be respectful of others. This is how balance is maintained in pluralistic society.

   4. Religion is not a Popularity Contest. The fact that one religious philosophy might at any given point be more common than another does afford that philosophy a greater or lesser status.

   5. No Bullying in the name of Religion. The freedom of religious choice is not a right to bully or coerce, nor to violate law. Each person's right of religious choice extends only to the point where it might infringe on the equivalent rights of others.

Yes, this could be done by separate amendments. But it would be a lot of them, and the discussion would be much more complex. I say do it all at once because every one of these things is absolutely needed.

If anything, there might be a few things I left out.

 

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Author's Notes:

If you got value from this post, please “Share” it.

This post was catalyzed by a single tweet by me on ex-Twitter, but it has been hugely elaborated since, after all, this venue does not have a 280 character limit.

The odd graphic of the scales of justice under repair was created by Abacus.AI's ChatLLM facility, using Claude Sonnet 3.5 and Dall-E and the prompt:

Draw a picture of a grayscale statue of a woman holding the scales of justice in one raised hand and a small wrench and a pair of needle-nose pliers in the other hand, lower, at her side. part of the statue should include a toolbox next to her feet that is open and presumably where she's taken the wrench from. the woman should be wearing a flowing gown, as is traditional for this kind of statue, but she should have a pair of goggles on her head, as one would use in a metal shop to protect one's eyes. The woman should have a pair of protective goggles, like one would use for metal working, over her eyes.

And, yes, I'm aware I did not get the needle-nose pliers got left out. And on this iteration I didn't ask for her to be seated, though I had been thinking of requesting she be seated at a work bench to resolve some unwanted aspects of previous attempts, so I went with this as the best of several tries.

Employers of Religion

Part 1 | Part 2 | Part 3

People have freedom of religion guaranteed to them by the Constitution. Lately there has been controversy—for example, in Sebelius v. Hobby Lobby—about whether corporations need such a freedom as well. I can help answer that: No. They do not.

People can already assert individual rights to religion. When a person creates a corporation, he no more needs additional religious rights for that corporation than a person with a megaphone needs additional free speech rights for that megaphone. A corporation is not a new and distinct human being.†

Corporations are avatars that represent people, performing actions on their behalf, but with augmented strength. But, in so doing, they are like the “power loader” exoskeleton donned by the character Ripley in the movie Alien, or like the superhero armor worn by Tony Stark in the Iron Man movies. These vehicles magnify the power of their wearers over others.

It all begins with an understanding that the ones with the brains, with the religion, with the political intent, and with the ethical responsibility are real, natural people who own these corporations. Everything else about corporations is just a vehicle for packaging and focusing power under their control. With rights come responsibilities, and if there is to be neither desire nor mechanism to hold corporations to the simplest social graces that we would demand of any civil person, then we must not think of them as we do civil people.

Consolidated and magnified power, unfettered by the social graces, does not require protection. Indeed, those without magnified power, those at the mercy of such power, are the ones needing protection. That's why we have rights at all—so that puny little people like any of us can stand up against bigger entities, like companies and governments. To say that then companies and governments need the same rights as ordinary people is to make a mockery of the very purpose of our rights. It is to diminish and dismantle human rights, not to extend them.

If a corporation imposes ethical choices upon employees, that's not the corporation protecting its natural rights. That's a person or a gang of people using the magnified power of employment to coerce other people not to follow their own religious beliefs. We've learned to recognize such coercion in the case of sexual harassment, and to understand that there is a responsibility of the powerful in an employment situation not to coerce the behavior of the weak. This is really no different.

The analogy may confuse you if you are comparing religion to sexual harassment, but that's not the right point of view. Both sex and religion can be beautiful things, but only when freely elected. Either forced sex or forced religion is an atrocity. An exercise of power, devoid of joy. A crime.

We allow an employer to use threats of firing to maintain a certain degree of order within a company, but only as long as that order relates to the business. We do not and must never allow employers to use any such threats to coerce behavior outside the scope of the business.

As a free citizen of the United States, you may choose what parts of your religion you like or don't. You can elect to be Jewish and yet perhaps you eat cheeseburgers. And yes, you can be Catholic and still use birth control. These are personal choices you make. Your religious advisors may even be offended. But that's between you and them, not between you and your employer. If your employer is allowed to intervene, even if he thinks he's just exercising his freedom of religion, he's using his magnified power to disallow you from exercising your own.

And that's the crux of it, the meta-rule of religion: Your religious rights stop when they start to infringe mine. We each must leave space for one another. Birth control is a personal choice, and something we each need to decide for ourselves. Employees do not make birth control decisions for their employers, and the same must be true in reverse. Any pretense that the company has a religious need separate from and beyond that of the owners just distracts from the fact that the owner's sphere of personal influence is being allowed to be bigger than by any right it should be.

Moreover, it will not stop there. The issues in question are not about the company being asked to pay for birth control, but merely about a company being asked to pay for access to a company that might pay for birth control. There is already an indirection in place. This indirection is really no different than the fact that the company is paying wages to a person who might pay for birth control, and the next natural step is to allow the company to control what happens with those wages.

It is simply not the company's business in either case. Health care is needed by employees, and it's up to each employee's sense of ethics and religion to elect what is appropriate, within the bounds of the law, to satisfy that need. For a company to dictate more is to either privately dictate a person's ethics and religion or to privately dictate the bounds of law. Either is unacceptable.

Corporations are not people. They do not get offended. Owners of companies get offended. And, if we let them, they'll use their artificial shells of power, like the image of the wizard in the Wizard of Oz, to make their sense of being offended more seem bigger, more important, and more menacing in order to coerce behavior. Corporations might dictate rules that must be followed by employees to keep their jobs. These powers may often be justified as needed for the correct function of the business, and the quality of its product. But there is no correct function of any business in play with the use of birth control—except, ironically, that some businesses might be adversely affected if the people working for them cannot avoid pregnancy and become distracted by an inability to plan the size and timing of their respective families.

Birth control must be the choice of the employee because it is an activity beyond the scope of employment. There is no defensible corporate interest in keeping employees from having control over family matters. It is a naked abuse of power by certain business owners over their employees and a perfect illustration of why corporations must not be accorded some artificially drawn freedom of religion.

Corporate religion is just institutionalized coercion trying to take hold.

We the Flesh-and-Blood People must draw a line.

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Author's Note: If you got value from this post, please “Share” it.

This third and final part of a 3-part series was originally published December 6, 2013 at Open Salon, where I wrote under my own name, Kent Pitman. The first part was Corporations Are Not People. The second part was We The People (and Corporations).

Tags (from Open Salon): politics, incorporation, corporations, corporate personhood, legal personhood, legal person, legal personality, taxation, crimes, punishment, imprisonment, life, death, death penalty, urination, trickle down, census, social security, robbery, slavery, human trafficking, murder, pro-life, childhood, contracts, travel, passport, visa, home country, citizen, citizenship, speech, religion, freedom, freedom of speech, freedom of religion, religious freedom, philosophy, ethics, vote, voter, voting, run for office, running for office, candidate, elect, election, elected, office holder

Footnote

†Note that even if you disagree with me, and think that a corporation really is a distinct person, the problem is that such so-called legal people are veritably required under stockholder theory to behave sociopathically. See my article Fiduciary Duty vs. The Three Laws of Robotics for an elaboration of why. In such cases, where legal people are neither asked nor expected to exhibit other-than-selfish behavior, special restrictions to hold that selfish behavior in check, not special encouragement to be as free as possible in the exercise of that selfish behavior, would seem more appropriate. The notion of a free society is based precisely in the assumption that most of us will not behave sociopathically. It is a calculated gamble that we will tend to do well by each other if allowed the chance. It would be irrational to make such a gamble situations where we do not have such an expectation.

We The People (and Corporations)

Part 1 | Part 2 | Part 3

Corporations are “legal people.” I explained yesterday why this made no sense. But it's our current jurisprudence, which is to say it's how we do things ’round here, and that sad fact dates back to the 19th century to some very old US Supreme Court cases, particularly the 1819 case Trustees of Dartmouth College v. Woodward and the 1886 case Santa Clara County v. Southern Pacific Railroad. So, unfortunately, there's been a lot of time in the interim for this badly conceived legal philosophy to work its ugly tendrils into the fabric of our society.

Before Copernicus figured out that the planets revolve around the Sun instead of the Earth, the orbits of the planets were thought to twist and turn in baroque ways. It wasn't true, but it seemed that way to astronomers of the day because they were building on an inappropriate foundation. The change in law from a “person” being just a person, to a “person” being either a person or something that is really very clearly not a person, is like going back in time to those days when we thought planets didn't revolve around the sun.

Words are the foundation upon which we build our civilization. The specific words we use are arbitrary in origin, but once chosen and used, our brains become wired to have certain memories, associations, and intuitions about them. Although corporate personhood has existed for ages, the practice of asserting it in order to gain far-reaching political power seems more recent. It started out as a way of asserting the legitimacy or manner in which corporations sign contracts or pay taxes, issues one might reasonably want to clarify for corporations, whether they are people or not. But more recently it has been used to imply that we should give rights or make accommodations to corporations simply because “they are people.” After all, people have rights and corporations are people, so—voilà!—corporations have rights, right?

Well, no. Not right. We are wired to react in certain reflexive ways to primitive concepts. We learn and remember a great many lessons and promises in life using words. So if we can change the meaning of word, do all the sentences we've ever spoken using that word still apply?

We know things about “people,” for example. As speakers of English, we come to associate those things we know with the words “person” or “people.” We are taught that “killing” is wrong, but especially the killing of “people” matters. We have laws against killing “people.” We feel uneasy around someone who even might do that. But if learn that a corporation is a person, must we suddenly feel the same kind of revulsion about someone killing a corporation that we have been raised to feel about them killing a person? Should we feel personally at risk sitting at dinner next to someone has killed a corporation? Could we be next?

Words are all we have to describe the rules we've agreed to live by in our society. We guard the text of those agreements carefully, so someone doesn't just edit the words in the night and expect us to comply with a new set of rules. But if the meaning of the words in those agreements can change out from underneath us, we can end up with different rules even without the text of the rules changing. That must not happen.

We must know when shifts of meaning are happening. We must have the right to review and approve the consequences of changes in meaning. It's not sufficient for someone to tell us that such review has already happened under a different understanding of those words. When such tricks are played with words, our gut feelings are easily manipulated.

It occurs to me that I don't know why I'm even bothering to be upset. There's an easy way out of this, much easier than all this fussing. I should just talk to the writers of a few dictionaries and get the definition of “absurdity” changed to mean “brilliant idea” and then the absurdities that characterize the linguistic landscape of Citizens United v. Federal Election Commission, giving freedom of speech to corporations, and Sebelius v. Hobby Lobby, giving freedom of religion to corporations, would magically become brilliant ideas. And then, perhaps, I'll no longer care.

But can embracing and exploiting such drifts in meaning for tactical advantage really be the answer? Is the Dictionary to be our new battleground? It's too hard to control the Supreme Court, so why not just buy a few publishing houses and change the Dictionary? Is this how wars are now to be fought? If so, we need to call a halt to it before we hurt ourselves irreparably. Santa Clara County notwithstanding, this is no way to run a railroad.

And where are the peddlers of original intent when we need them? No doubt they're busy changing the definition of “original” to more flexibly suit some Machiavellian end, and haven't time or interest to help us. Because as it looks now, it's likely to be Scalias of the court, the self-professed keepers of original intent, who seem to me most likely to afford freedom of religion to corporations. What irony, or perhaps just good old-fashioned hypocrisy, in that.

We need to do something. We The People, I mean.

People People. Not corporate people.

If you catch my drift.

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Author's Note: If you got value from this post, please “Share” it.

This second part of a 3-part series was originally published December 4, 2013 at Open Salon, where I wrote under my own name, Kent Pitman. The first part was Corporations Are Not People. The series concludes with Employers of Religion.

Tags (from Open Salon): politics, political, political battleground, santa clara county vs southern pacific railroad, trustees of dartmouth college vs woodward, corporation, incorporate, incorporated, corporate person, corporate personhood, legal person, legal people, copernicus, copernican, pre-copernican, killing a corporation, gut feeling, language, dictionary, original intent, freedom of speech, freedom of religion, corporate speech, corporate religion