Stare Decisis is a joke. We have to face the fact that Stare Decisis, as it applies to the supreme court, is nothing more than saying, "We don't find the case quite compelling enough to change our mind, yet," and the 'we' is always changing.
We were complacent fools for relying on the court's interpretation of the constitution to safeguard our rights. The decisions of the supreme court are no more permanent than the laws written by congress. They are just slower to change because the terms of court justices are far longer. It should have been obvious even then that any guarantees the court offers are limited to about 20 years after a political change of wind.
It looks like time is up. We've got our work cut out for us, but we need to do it right this time. We need to amend the Constitution to make things more permanent this time.
The process starts by now by figuring out what rights need safeguarding in the Constitution, what structural remedies are needed in the government, and what is best left to the law. The sky is not the limit here, we're not talking about a complete metamorphosis of the government but adjustments necessary to keep it working well. That is the purpose of this post and comment thread.
That said, here is the general idea to some amendments I would propose:
- The Right to Privacy: This would seek to sanctify the rights recognized in Griswold and following. This would include, but not be limited to medical decisions (especially as it relates to birth control) and other things I'm not as familiar with.
- The Right to Information: An informed electorate being necessary to avoid tyranny, no government document, communication, action, or business shall be permitted to be kept secret, and shall be made available upon request. The sole exception being if someone's life is on the line, and only for as long as someone's life depends upon that secret. An informed Congress being even more critical, no information whatsoever shall be withheld from them. Exceptions permitted being the personal right to privacy and the 5th Amendment, but they must be invoked.
- Free and Fair Elections: Trustworthy elections also being necessary to maintain freedom, all elections must be audtiable for accuracy and honesty by an average person or an agent working her/his behalf from the "ballot box" onwards, including the operation of the ballot box. The process of counting the votes must also be open to public observation and scrutiny.
- "Personhood" for People: The status of legal personhood, and the rights and responsibilities for actions that entails, shall be limited to actual people. The point being that organizations, like corporations, should not have been granted personhood by the courts over a century ago. I find it rather disturbing, actually, that the court has granted itself that ability - seeing as how it is is concievably possibly for them to someday say, "[Blank] aren't people, and are thus not subject to the protections of..."
It may also be necessary to codify the dividing line of when the personhood of a baby/fetus starts. Correct me if I'm wrong, but this sounds like something that the legal challenge to Roe could be based on, "Oh, well, nobody ever bothered to ask the court of these were persons. That changes everything entirely."
There may also be some minor debate about possible extension of personhood to artificial entities in the future, but I'll leave that for the philosophers.
- Extension of the Elastic Clause: This is a tangled one because I'm not sure exactly where I think the dividing line between state and national powers should be. Suffice it to say that I think that the government should have the explicit power to regulate behaviors that cross state boundaries like air and water pollution, air traffic control, etc. That is, not just those that are commerce related. I'm somewhat dubious of the FCC and such. I'm also supportive of public education. I'm just not sure what the most simple and clear way to put these and other things in the Constitution is.
- Implied Rights: This is essentially a more concrete extension and reaffirmation of the oft neglected tenth amendment. Specifically it should state that the people reserve all previously unrecognized rights to themselves, but most especially those necessary to a continued free and open society and government. The point being that the people have rights necessary for a government as described in the Constitution to function.
There are lots of other issues that I feel could and should be addressed. Copyrights and patents, for instance, are a mess. I just don't know what remedies for them would be appropriate to the Constitution. I'm sure that this list is both lacking in important areas and also probably too expansive in others. I look forward to any help others can offer on this front.
Naturally I don't imagine that even amending the Constitution would be a permanent solution. At best it would only set the bar higher than a Supreme Court decision because it can always be re-amended or ignored. Thus I think that that the most important part of any campaign should be include the message that we are ultimately the ones responsible for safeguarding our own rights - no one else, and certainly no document, can be trusted to do it for us. That is why it should be stressed that this is a recognizing rights that we already have, not a granting of new rights. Enough of this for now - that is for the tactical debate that comes after the initial goal setting stage. Now is the time to clearly formulate our goals and what venue is the best place to fight for them. The tactical stage - how to market our goals and achieve them comes later.
With that, I turn over the podium to you, dear reader.