The Immoral Income Tax and Direct Democracy

 When the income tax was enshrined within our Constitution in 1913, it had already been imposed decades earlier by statutory law. The 16th Amendment essentially granted our government the right to collect income tax whether the source was our labor or our capital and without apportioning its collection so as to reflect the unequal populations within the states.

Between its ratification in 1913 and 1918 the top income tax bracket jumped from 7% to 77%. It then swept lower in the years leading up to World War II; and in 1945 it peaked at 94%. Today it hovers at 35%.

Not surprisingly, the size and scope of government has also ballooned. How big we allow it to swell ought to depend upon many real-world variables: No abstract political ideology, however finely principled, could credibly predetermine that size. The right answer requires an integration of actual criteria — population, availability of natural resources, willingness of humans to share or trade for them, propensity for and capacity of others to expropriate them — birth rates, death rates, climate, etc.

Contrary to purist political ideologies humans are not now held back from an Earthly paradise by government itself. The rule among humans is discord; the exception, cooperation. Thus government remains a necessary evil — if also an enduring sign of human failure.

But how we fund our government certainly ought to reflect our ideals and our eventual goal. There are moral implications in play here: When the government taxes an activity or a product we are discouraged from it. Ought the government then tax work and efficient productivity? Might it not tax activities and products we would be better rid of?

Crime obviously costs society on many levels — prevention, enforcement, adjudication, incarceration, etc. Would it be so unreasonable then if prisoners were made to work, repaying society for those costs? Or when citizens file frivolous lawsuits or defraud federal programs, ought not these activities be discouraged through the imposition of a fee or a tax?

When for that matter foreign governments around the globe call upon our U.S. military to protect their national borders, ought not these countries pay for our American sacrifices? And when multinational or American companies pollute our lands and waters, shouldn’t we consistently and fully discourage this activity, imposing taxes or fees equaling the totality of our present and our future costs?

The theoretical machinery underlying this moral system of taxation is Pavlovian to be sure, but the actual output generated by it is of moral and material benefit. It highlights the potential instructive role of a limited government —  linking the funding of its services to those citizens who make the services necessary in the first place.

We all require government, for instance, for the securing of our safety, our private property, and our state and national territory; so we all should pay a tax or fee in support of the maintenance of the police and military forces who guarantee these things to us.

Finally, under a direct democracy in particular, this moral system of taxation requires that no one voting block may arbitrarily impose expenditures upon another — not solely among different segments of the public in a given year but, perhaps more importantly, between current voters and all future generations of voters.

Therefore, in order to optimize this moral system of taxation, this Constitution must specifically prohibit such transfers of debt:

Amendment X – No law enacted by electoral initiative or otherwise shall establish a debt, project or fiscal program where the financing thereof would obligate future citizens to the financial commitments of current voters. Appropriations shall be drawn from revenues collected within one year of their appropriation through floating debt and the collection of these fees and revenues only:

-Usage fees levied upon persons whose activities degrade or monopolize public property;
-Usage fees levied upon persons enjoying exclusive use of land, in proportion to its acreage and the volume, mass and scarcity of natural resources therein;
-Usage fees levied upon foreign governments for involvement of United States military personnel, equipment or weaponry in operations outside the territory of the United States, at the request of said governments, which would otherwise be the responsibility of any sovereign nation to itself;
-Misusage fees levied upon persons whose activities, whether intentional or negligent, damage public property;
-Misusage fees levied upon persons whose activities damage the private property of another person, or impede its exclusive use by barring lawful access to it, or operation of it; physically altering it or its value; or otherwise converting or making improbable its peaceable, lawful, exclusive enjoyment; thereby necessitating the intervention of law enforcement or courts of law;
-Misusage fees levied upon persons who assume unnecessary risks or file frivolous complaints that require emergency public services or courts of law;
-Sales of forfeited, seized property;
-Sales of goods processed or manufactured by state-confined workers; or revenues from the contracting-out of their services;
-Sales of government property to allies of the United States, upon a two-thirds majority vote among the Governors and a unanimous vote between the President and the Cabinet—or the Defense Cabinet, in the case of military property;
-Duties, imposts and excises;
-Safety-inspection and handling charges;
-Any fiscal-program income deduction annually re-authorized by electoral initiative.

All fees shall reflect the actual duration and costs of use or misuse, so that collections in anticipation of use may necessitate reimbursement.

No law enacted by precinct electoral initiative shall institute or increase an appropriation from revenues derived in part or in full from another precinct, unless with a fifty-one percent consenting vote within the latter precinct, or unless authorized by this Constitution; nor withhold or disburse revenues lawfully collected for and due to a city, county or state government, or the federal government.

The Insanity Defense: A Parody of Justice

 James Holmes, 24, the orange-haired, accused mass killer, has today been charged with two separate counts of first-degree murder for each of the twelve June 20 deaths inside the Aurora movie theater. The first charge alleges his intention to cause harm; the second, his acting with extreme indifference to human life.

Court video of the accused reveals a man clearly struggling to maintain focus upon the ongoing proceeding; though the cause and even the authenticity of his disorientation is yet unknown. Whether his courtroom behavior reflects a pre-trial strategy orchestrated by him and his defense counsel or a genuine manifestation of a mental disorder, odds are good that a plea of not guilty by reason of insanity will be forthcoming.

Need it be said, however, that mental illness is real? And whether suffering from a psychotic episode or from permanent schizophrenia, the severely afflicted experience a partial break from reality. This fact may seem contestable: They navigate among us, still able to perceive both the objects and the people around them, at least superficially communicating and relating.

But beneath the surface, false internal stimuli are blocking them from an ongoing emotional tracking of, or a personalized integration with, the complex yet mundane, subjective world that forms the basis for our daily associations.

We ought not condemn their actions, therefore, as entirely or even predominantly willful, even under tragic circumstances like the Aurora shooting spree.

Our compassion, however, must not extend so far that we release those judged mentally ill, thus not guilty of their crimes, back into the community within a shorter time frame than would be a competent defendant convicted of a similar offense. The protection of the general public is the primary justification for the continued existence of government itself.

Severe mental illness has many treatments but few to none have cures. And our bodies become habituated to even the most powerful medications when taken over longer periods of time; so that even strong anti-psychotic medications likely will lose their full effectiveness. Mental patients, too, once discharged often decide to take themselves off of their prescribed medications.

For the sake of ensuring public safety, then, it would be irresponsible for the government not to confine the offending mentally ill to institutions, either until cures for their disorders are developed; until their conditions naturally remit, or — at a bare minimum — until such time as a competent criminal defendant might himself have been released.

From the presented direct democracy Constitution:

Amendment VI – In all criminal suits the accused shall have the right to be informed of the nature and cause of the accusation upon arrest; to have assigned to the case, upon incarceration, an impartial clerk of the court, at public expense, who shall verify the legitimacy of probable cause by examination of reports and other evidence and a direct, recorded interview of the accused; to attend an information hearing, where said clerk and the accused shall be queried by a judge other than the trial judge, who shall review the evidence and determine which charges, if any, to file; or in the case of an infamous crime, whether to impanel a grand jury and with which indictments pending; to be arraigned before the same court and afforded a plea offer; and, absent a guilty plea, to be informed of the witnesses to and evidence of guilt and afforded a second plea offer; and to be provided sufficient time prior to trial to obtain witnesses and evidence of innocence by compulsory process, with the aid of a publicly funded clerk of the law, while confined or on bail, and at the discretion of the trial judge as to admissibility—to whom any other citizen with probative evidence may submit a request for permission to volunteer the same at trial, after full discovery.

The accused shall enjoy the option of a speedy and public trial, in which the accused alone shall present a defense before an impartial jury of the state and the district wherein the crime shall have been committed; which district shall have been previously ascertained by law.

At any time the accused may waive the right to a trial by jury; or the presiding judge may issue a ruling, upon examination of the accused and with the assent of two mental health physicians, that the accused is incapable of presenting a coherent, effective defense; whereupon the judge may appoint the same clerk of the law to act as a surrogate defendant, enjoying all the rights and privileges of the accused in the presentation of a defense; or may commit the accused to a mental health facility for treatment in preparation for trial.

An examination of prospective jurors and selection of fourteen shall be made by the presiding judge, subject to challenges for cause by the defendant, from among adult citizens whose self-sovereignty never shall have been revoked; and who shall be compensated per hour an amount no less than, but not more than twice, the federal minimum wage, to be determined by the Governors of the states, respectively. The accused shall then dismiss any two of the fourteen jurors by peremptory challenge.

The right to a neutral audience from the jury shall attend the accused; and at the opening of trial the jurors shall be informed of this right and of the nature and cause of the accusation against the defendant; who shall take the witness stand to respond under oath to any germane questions of the presiding judge and the jurors.

The defendant, or the surrogate defendant, shall then call and question witnesses and present evidence, equally subject to the direct examination of the trial judge and the jury, and to the rulings and directives of the former, who shall guide the proceeding in a manner conducive to a full, reasoned and swift finding of fact and law.

Upon the ruling of the court that the defense has exhausted all relevant, material evidence, the judge shall call to the stand for the same full, direct examination any public officer materially engaged in the investigation, arrest or interview of the accused, including the clerk of the court, ending the process similarly with the aforementioned voluntary witnesses and their evidence.

Except in the case of confession the jury shall retire to decide only a general verdict of “not guilty” or “guilty” of the charged, criminal action: All special qualifications and classifications arising from intent or bearing upon sentencing shall be a finding of the presiding judge; who shall follow statutory guidelines in identifying the class and degree of a crime and imposing the designated sentence where applicable; or else exercise the reasonable discretion afforded by law. But no defendant ruled incompetent to present a defense, or having pled insanity as a defense, then found guilty of the criminal action by an impartial jury after a competent defense, shall serve less time in state confinement than could a competent defendant convicted of an equivalent offense.

The inability of more than two jurors among at least nine remaining to assent to the majority verdict after twenty hours of deliberation shall result in a mistrial and a retrial at the earliest, reasonable date. And when, in the judgment of the jury, a material finding of the judge or the sentence imposed is in error or unreasonable, the jury by a unanimous vote may effect the filing of a notice of appeal of the decision, in the name of the defendant.

Healthcare Reform: Reason and Direct Democracy

 The strong and inelastic demand for healthcare in America — our demand for the very latest technological advances in diagnosis and treatment — sends soaring skyward the prices we pay for medical testing and procedures, far above the reach of the average American. Hospitals, to be competitive with one another,  attract the better doctors using generous fee-based pay schemes, whereby doctors, who are always vulnerable to malpractice suits anyway, are financially incentivized to perform services that might not be effective or even necessary.

Hospitals must also recover the costs of multi-million dollar medical equipment that attracts both the finest physicians and the privately insured. So even when existing medical equipment is working well, an innovation in technology imposes pressures upon hospital administrators to update their equipment in order to retain market competitiveness.

But there are other causes for this pricing predicament: Doctrinaire free market advocates would ascribe it to our government’s market interference — its limiting of nationwide insurance competition, its mandating that illegals and the indigent receive treatment, and its insufficient reimbursement models for Medicare and Medicaid.

Doctrinaire liberals, on the other hand, would bewail the corporate, profit-driven denial to Americans of our right to healthcare treatment, carried out through lobbyist influence and the consequent legislative blocking of a universal single-payer system.

But the healthcare issue is far more complex than this.

What if, for example, we Americans had no fear to face either the social stigma of disease or the blank unknown of death? What if we dutifully treated our common illnesses and injuries but accepted the onset of a fatal disease or the infliction of a mortal wound with a selfless dignity rather than with a mortal desperation? And if we refused all expensive, life-extending measures?

The consequent fall in the demand for emergency medical care might be well reflected in lower prices paid by all. So ought we struggle to forestall and overturn the verdict of Nature, even at great cost to family or to society? Is that a civil right?

The human genome is surely devolving in consequence, as diseases that might have killed yesterday’s adults are instead cured by modern medicine. The underlying pathogenic genes responsible for the disease are still passed to the next generation — whereas such genes in past generations would have brought about their own demise. Who knows how this concentration of pathogenic genes will affect future generations?

But is an enlightened attitude toward life, disease and death required in a country whose medical field advances so quickly? It seems quite likely that another century will not pass before genetic therapies have overtaken the spread of disease in humanity. Perhaps then we can “back-engineer” our own human evolution.

For now, unfortunately, we find ourselves caught in a very expensive transition to that medical paradise — that future when perhaps medical costs will have become negligible for everyone — of no import whether universally covered or privately paid.

So, assuming that an enlightened life perspective is out of the question, how do we get there from here? The advancement of medical research and technology must not be slowed; yet the costs of care today ought to be curtailed — or else this, our pricey purgatory, will prevail longer than necessary.

If free market advocates had their way, their resulting open market would not ameliorate the increasingly expensive medical-technology and doctors-fee competition between hospitals: People are so desperate to prolong life, even a few weeks or another month, that the demand for healthcare would remain inelastically high at any price.

And if the liberals prevailed — laying aside the absurdity of one person having a “right” to be treated medically by another human being — at a price point — then presumably a bureaucrat, or a body of bureaucrats, would be officially charged with administering a new universal system. Faced with finite financial resources, they would either make distinctions between those who merit treatment and those who do not; or they would ration resources across all patient care, making little distinction between a patient injured or ill through no fault of his own and one whose actions directly caused his condition, e.g. a chain smoker or a bungee jumper. But such official injudiciousness and arbitrary magnanimity by the state more injuriously debases morality and delegitimizes government than the free market in its fullest operation.

The solution then?

Because demand is inelastic, prices must be kept artificially down. The free market functions for all consumers only when both supply and demand are elastic in relation to price. But to individually set the price of every medical procedure and of all medical equipment would require endless bureaucracy and thus invite unlimited favoritism and red tape.

The real answer requires a broader principle than this.

From libertarians we find an objection to state licensing of professionals because, they argue, such government intervention places artificial limits upon the number of doctors and medical professionals in the field and upon the nature and the number of medical devices and treatments available to all.

But rather than dropping state licensing requirements altogether, why not make explicit the link between state licensing and state price controls?

In other words, if medical professionals and medical suppliers wish to receive the imprimatur of the state and whatever legitimacy accompanies such certification, the value exchanged for this bona fides would include a limitation upon the fees charged by professionals for their services and a limitation upon suppliers for the prices charged to consumers for their products:

No person to whom any of the several states or the United States has granted a license to render a service, or to own or operate a device intended to provide such a service, or to provide a good shall retain the same upon exacting a rate, a fee or a price that exceeds twenty times the federal minimum wage; two times both the actual costs of operation of the device and the resulting marginal dimunition of its functioning life, as applied to its replacement cost; or two times the cost to replace the good, respectively.

(from Amendment XIII)

Under this system the state licensing of professionals might well fall into relative disuse, likely concurrent with an explosion of unlicensed or privately licensed practitioners. The more the merrier, as this greater number of providers would better meet the constant high consumer demand, in this case for medical care, thus lowering the price for the average healthcare consumer. Yet those who retained their state licensing and abided by the fee and price limitations, no doubt true humanitarians, would exercise a secondary price-competition pressure upon unlicensed providers, keeping prices lower across the industry.

And any medical professionals and medical suppliers opting to operate outside of state licensing could still charge private patients, insured or cash payers, whatever the market dictated. Private hospitals could operate with only private licensing, or none at all, perhaps charging for the highest quality care and for the latest technology the fees that only the most affluent could afford. Even so, the technology competition between separate private facilities would fuel medical research and technology advancement and thus extend the progress of medical science for all.

That this state licensing in a direct democracy constitutional amendment was extended to all industries reflects an attempt to avoid legislatively targeting a single industry, avoiding a de facto bill of attainder. As for those citizens who, even with price controls linked directly to state licensing, still could not afford healthcare, they might either rely upon private charities — adopt an enlightened attitude toward life and death — or limit their health risks and unnecessary expenditures, perhaps even their number of children.

Thus, for the greatest number of people we preserve the usefulness of the state and the better elements of the free market system, limiting the ability of state licensed professionals to benefit from state power in exacting from their customers prices that do not reflect their actual costs — the costs that would prevail given full competition among the largest number of suppliers.

And thus we, the People, find ourselves the beneficiaries of more affordable products and services for the foreseeable — and well into the rapidly advancing- future.

Direct Democracy and the Legalization of Drugs

 The United States learned quickly in the 1920’s that the prohibition of alcohol was for all intents and purposes an impossibility, first ratifying and fourteen years later superseding a constitutional amendment to that end. But if the consumption of alcohol were an inherently immoral act, then irrespective of the rise of organized crime and the explosion in alcohol-related arrests, the prohibition of alcohol ought to have been retained.

Morality is a criterion for judging the social adaptiveness of a behavior. What would happen to the world were everyone to engage in a given act? If no appreciable harm would befall others, the act is at worst amoral, but it isn’t immoral. The state of the world would be no worse, even were all people engaged in the act.

Is the question of morality then even relevant when a private citizen ingests a substance? And is the mere possibility that an immoral act might be committed under the influence reason enough to prohibit ingestion altogether? Or do adult citizens retain the freedom to ingest whatever they wish within the safety of their own homes?

Since harming the innocent is by definition an immoral act — for it leaves the world in worse shape afterwards — when ingestion does cause harm, it is immoral. Pregnant women ought not ingest drugs other than those prescribed by a physician. A person under the influence who plows his car into a crowd or an oncoming vehicle, harming innocents, has transgressed what is moral.

The question for society is: Does our government enjoy the right to prohibit amoral behavior in order to preclude immoral behavior? Here we must detour into a discussion of probabilities. Harm is not certain to result from the ingestion of almost any popular drug. But isn’t it much more likely to result under the influence of some substances than others — PCP, bath salts, crack, or meth?

Addictive substances are predominantly harmful: they rob their users of their health, their values, their money, and their independence — all of which often lead to harm to others. And drugs like PCP and perhaps bath salts are predominantly harmful: they induce a psychosis in the user in which his safety and the safety of others is very likely at risk.

But do alcohol or marijuana, or most recreational drugs, fall into either such class — either destructively addictive or psychosis inducing? If the great majority of those polled, users or not, were answering candidly, they would undoubtedly answer: No.

But if our government enjoys any right to exist at all, then the protection of the innocent is the best justification for it. If it did not prohibit the ingestion of substances very likely to bring harm to the innocent — putting aside its harm to the users themselves — then it would at best be an amoral institution and likely an immoral one, one unworthy of further support.

In Amendment XV of this proposed direct democracy constitution, freedom is granted to citizens who wish to ingest those intoxicants that do not fall into the aforementioned categories:

The manufacture, sale, transportation or use by citizens of the United States, twenty-one years of age or older, of any intoxicant which is not likely to induce severe physiological addiction and withdrawal or temporary insanity, as understood by law, is hereby legalized and made subject to all laws respecting regulation of agriculture and commerce.

But the design of this document is only to lay the groundwork for a vast diversity among the American precincts — to solidify only a floor of morality below which no precinct may descend. Should some precincts choose to legalize even addictive and psychotic intoxicants, the proposed amendment does not actually bar them from this. Its purpose instead is to guarantee that inertia alone will not justify the government in continuing to prohibit almost all intoxicants, or even any amoral behavior, simply on the chance that doing so might prevent immoral behavior.

In the same amendment, the aforementioned foundational moral floor for all precincts is then made explicit in the second and third paragraphs:

But the use of any intoxicant, legal or illegal, concurrent with a violation of a federal, state, local or precinct law shall be a felony crime: an offense that suspends the self-sovereignty of the accused before and during trial and revokes it upon conviction; until the accused shall have been exonerated, or shall have served no less than one year in state or federal incarceration.

And the use of any illegal intoxicant by a custodial parent shall be, ipso facto, felony child neglect and cause the immediate loss of custody of all minor children upon arrest; whereupon custody shall be restored only upon exoneration, or completion of sentence and judicial consent.

In other words, even as our right to harmlessly alter reality is enshrined into law, this liberty, like all freedoms, is linked with responsibility to those around us, particularly to innocent children. Any crimes committed under the influence shift the behavioral category of drug use from an amoral behavior to an immoral one and so must be punished.

For we the People, under a new direct democracy, ought to be free to examine life itself so long as we harm no one else in the process while still well protected from others’ recklessness, no matter our chosen political precincts.

Human Nature and Regulation

 When the Founding Fathers within Article 1 Section 8 of the newly signed Constitution granted to Congress the power to regulate commerce, these distinguished gentlemen naturally knew nothing of gasoline, electricity, or bacteria. At the time, workplace and product safety standards constituted for them nary an afterthought. In a nation built upon the backs of slaves this hardly seems surprising.

But after years watching the nation falter under the Articles of Confederation — years of state to state tariff wars, deep recession with dire inflation in state currencies, and both rising debt and unremitted taxes — simply wresting from these foundering states their power to erect tax barriers that impeded foreign and interstate trade was one of their most pressing goals.

Yet in modern America we taxpayers now spend over $2.5 trillion per year footing the bill for both government regulatory enforcement and for public and private compliance.

Possessed of today’s scientific knowledge, would our Founders have designed such an economic burden as a part of their “original intent?”

Must we yet speculate? They died.

We the People must today answer for ourselves which if any measures are necessary and which would best ensure the safety of honest, productive citizens in the free exchange of goods and services — in our daily commerce. No doubt every political ideology will have its own argument for the proper regulator — whether government agencies, private associations — or no regulators at all..

But within both the public and private sectors the one inescapable constant is human nature itself: the power corrupts us; favoritism takes hold; complacency grows; and money talks.  Behold the current global financial crisis. Moody’s Corporation and Standard & Poor’s, two private rating services, were no more trustworthy or reliable than the SEC, a government regulatory agency, in warning Americans of our impending financial securities meltdown.

Fallible human beings man every organization, public and private.

Is the answer then no regulation at all? Ought we discover then only after a high-rise apartment collapsed that the foundation was laid with faulty concrete? Are compensatory lawsuits enough justice, or low rents enough inducement, for the harm visited upon honest, unwitting citizens and their surviving relatives?

Any regulator, public or private, might at any time prove derelict in its duties. But this cannot be reason enough to forsake reasonable public standards, particularly within industries where the public safety is at risk.

In the IT world we see competing models of innovation with widely divergent industry standards: the closed-source operating system and the open-source system. Public safety is nowhere here at risk; and innovation is thriving without such regulation. Let then the hand of the free market and the demand of the consumer determine the course of commerce.

Required is a common-sense rule of thumb, a rule with which to gauge the propriety of imposing a regulation: Does it directly, materially enhance public safety while minimizing costs of compliance — minimized to a degree that would still justify the enterprise in the first place?

But here we return to our human nature: Who shall write such regulations and for which industries? Who shall enforce them? And shall any citizens enjoy immunity from them? What will be the consequences for over-regulation, for under-regulation, and for non-compliance?

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First and most importantly, no one must be immune from the law.

And it would be public employees not private interests or even associations of private interests who surely would make for the most impartial enforcers of public safety regulations.  Private self-governance of public safety, where profit and market share would always be in play, more widely opens a backdoor to our darker human nature.

Industry experts, logically, ought to write the specific standards within their respective fields of mastery. And our own elected representatives, each subject to the recall vote, ought to select such experts as impartially as this our human nature allows.

Finally, we the People, as jurors within the courts of law, will decide both culpability and consequences for the misuse and violation of such regulations.

And the rule of thumb?

No administrative rule or regulation, except those indispensable to the protection of public safety, shall be enforceable where, regarding the regulated, a presumption of malice, neglect, or imbecility inheres to the requirements thereof: But any injury to person or to property, private or public, whose proximate cause is a business or governmental standard or procedure violative of due care and common sense shall nullify the limited liability or the official immunity of the authorizing and enforcing officers, respectively, both in civil and in criminal suits.

(from Amendment XIII)

Some might object here that revocation of the limited liability of CEOs and the official immunity of politicians opens wide the front door to endless litigation. But is this not what hurts us most today — their immunity from accountability?

The broader expansion of citizen accountability — of personal accountability — will serve as the foundation of our collective moral growth. No citizen, and particularly not those in positions of responsibility and power, ought enjoy immunity from our collective judgments and from their own accountability.

So, what then would constitute “due care and common sense?” That would be a definition in our own collective hands, as jurors at trial, to decide — a de facto form of common law for we the People. And this same critical judgment would be brought full circle against ourselves and our own frivolous lawsuits by a provision written as a revenue source into this new direct democracy constitution:

Misusage fees levied upon persons who assume unnecessary risks or file frivolous complaints that require emergency public services or courts of law;

(from Amendment X)

A Schooling on the Electoral College

 In turbulent years the Founding Fathers rose to prominence, within a nation faltering in its efforts to carry out safe trade and carry forth timely news between the former colonies. Each new state had long since developed unique regional interests and established a monied elite, as well as incubating its own darker provincial prejudices. And in the absence of a solid federal government, no national political parties had yet consolidated so as to represent concerns common to all the states. Not surprisingly, then, the smaller states needed special persuading that entry into a stronger federal system would not cost them the better part of their autonomy, as granted them by the Articles of Confederation.

At issue for the Framers, specifically, was how to convince the smaller and the more agricultural states that their lesser populations would not be routinely outvoted by the larger states, in effect leaving them underrepresented in this new federal system. And though the rule of one man, one vote is surely representative, irrespective of voters’ spatial relation to one another, for the smaller states, and for the sake of the new Union, the constitutional pot would have to be sweetened.

The Founders almost uniformly distrusted the common People at this time, in part due to the very absence of a stronger federal system — the consequences of which were a lack of an established national press and thus an uninformed populace, lack of a public school system, and no broadband.

Hence we have the electoral college, a Frankenstein system born of a Roman relic, a hybrid intended primarily to more equally represent the states in the presidential election by guaranteeing some minimum level of importance to all the states via their 538 electors.

The problem — beyond that of pragmatically pandering to smaller and rural states, affording them more electoral weight than their populations should warrant — is that the establishment of a strong federal government has since given rise to remedies for what then prevented the Founders from entertaining the notion of allowing the People to vote directly for their President.

We now have a somewhat pervasive and obnoxious national press, two hyperpartisan and quite entrenched political parties — and also broadband. The electoral college, furthermore, was designed without taking into account the pernicious influence wrought by a two-party system. In a winner-take-all electoral system, where the voters in each state vote, not for the President, but for their electors, the party of the electors who receive the most votes will carry all of that state’s electoral points, a majority of 270 required to win.

In a more parliamentary political system, where multiple parties were in fair competition for a share of all the electors, this would not pose a problem. But today, in our two-party system, it translates into an insurmountable barrier for third party candidates, who often struggle for a plurality of votes in any state, let alone the eleven or so more populous states necessary to carry the election.

Then there’s that other little problem. The Al Gore problem. Al Gore won the popular vote in 2000 but lost the presidential election all the same. Whatever one’s politics, the resulting Florida farce, the hanging-chad/Supreme Court-injunction parody of a vote count, hardly seems worthy of the Founding Fathers’ genius inspiration.

Finally, we are no longer the uneducated, isolated sodbusters that the Framers took us to be. These United States are no longer pitted, one against the other, like private regional interests; such that we ought jealously guard against the empowerment of the one over the other. And our two-party system no longer serves us at all. And then there is the broadband.

One person, one vote. Anything less is beneath us.

In Defense of Guilt: Double Jeopardy and Pleading the Fifth

….nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself….

Today most Americans nominally familiar with the law accept as a settled matter that the above two provisions from the Fifth Amendment of the Constitution are some of the essential linchpins in the machinery of American justice. But many citizens more familiar with the legal system and specifically with criminal law, or even those who more closely follow sensational public trials like those of O.J. Simpson and Casey Anthony, have come to question the wisdom of permitting only one prosecution of an accused party or of allowing the accused to remain silent during a trial intended to be a discovery of the truth.

Undoubtedly state prosecutions at times, particularly in high-visibility cases, are driven more by politics than by any evidence beyond a reasonable doubt. And criminal trials cost the state and often the accused many thousands or tens of thousands of dollars.

But the virtue of sparing those few citizens who were in the wrong place at the wrong time the anxiety and the expense of a second criminal defense must be weighed against the immorality inherent in denying a victim full justice and in failing to protect the community from an active criminal offender. Prohibiting a second prosecution against a previously accused person, even when compelling new evidence establishes probable cause or guilt beyond a reasonable doubt, surely places a check against rogue prosecutors well ahead of the securing of truth, public safety and victim justice.

Furthermore, if the criminal legal system were altered, such that state prosecutors were no more — where only the evidence itself, as gathered by law enforcement and as reviewed by a trial judge, could determine whether or not the accused would ever stand trial — once, twice, or ten times — then the case against double jeopardy would fall apart.

So who would play the role of the prosecutor at trial?

We the People would. We as jurors would, under the direction and with the assistance of the presiding judge, conduct an examination not only of the accused but of the victim and/or of the witnesses to the crime, of the witnesses for the defense, of the public officials involved in the criminal investigation, and of any witnesses who stepped forward in the name of truth.

Then, rather than being an adversarial system with competing and contradictory theories of the case, our criminal justice system would become a more impartial, apolitical, interactive machine of justice.

But there it does not end. For how do we, as active jurors, get to the truth of the matter when the accused presents no defense or offers no testimony?

First, under this system the evidence must already be sufficient, as evaluated by a criminal trial judge, to establish probable cause for arrest and trial. The principle, therefore, of affording the accused a presumption of innocence seems deluded. He would not be put on trial if a judge — and not even the presiding judge — had not previously found his innocence in significant doubt.

Second, the accused would have no defense counsel to speak for him — unless he were ruled incompetent by the judge prior to trial. No alternative theory of events could then be presented except by the defendant himself. Should the accused refuse not only to testify but refuse, even with the aid of the court, to present any defense at all, then the jury would include this in their deliberations, while determining his guilt or his innocence.

The accused could not be forced to testify; but his silence ought to be interpreted as one sign among all available evidence of his guilt in the case. Whether jurors take it as such would be entirely up to them. But to ask them to suspend their judgment here is to ask them to assume that a competent, honest man would sit silently under examination by his fellow citizens, refusing to aid in a search for the truth in the wake of a crime, for fear that the evidence trail might lead mistakenly back to him.

An innocent man need only recall the truth. Finally, the adversarial system and its competing theories from the prosecution and the defense councils would no longer deter us from a finding of facts and of the truth. And the jury, who often perform this function today, would still decide the verdict, only now only a simple verdict of “innocent” or “guilty.” The presiding judge would retain the discretion afforded by law to determine the class and the degree of the crime, as well as the sentence imposed.

Such a reformed legal system would not only aid in the search for truth, by including our voices in the examination of facts and witnesses; but it would cost the state and the accused far less to do so. No longer would ours be a system tilted toward a defense of the guilty, as a fail-safe against the potential abuses of the prosecution. It would finally be a criminal justice system tilted toward the victims, toward the innocent, and toward the truth.