Arguments for my replacement Bill of Rights: The second and third mandates of Congressional Power

The second and third mandates which grant Congress additional powers in my proposed replacement Bill of Rights are as follows:

2. Congress shall, by law, determine when the actions of an individual violate these rights of another and are therefore indicative of a deficit of reason.
3. Congress shall, by law, determine the consequences for such violations of rights up to and including temporary or permanent limitation or revocation of these rights

These mandates grant Congress wide authority to and responsibility for the creation of criminal laws and the various punishments for violations thereof.  The authority to and responsibility for the creation of criminal laws has formerly belonged to the states, with the intent that the various states can determine their own special requirements for justice and legislate to fulfill these needs.  Specifically, it was formerly necessary for states in which the institution of slavery was supported to have special laws regarding slaves.  For instance, in such states, it had to be considered whether the crime of murder needed to apply to cases in which the victim is a slave or if such should fall under some type of arson or destruction of property.  Presently, such considerations for slavery are no longer necessary and the differences between criminal laws among the various states are much smaller, consisting largely of special laws that punish people for not complying with state specific regulations.  For instance, a state in which water shortages are common, and the use of water is regulated, may have criminal laws regarding violations of those water use regulations.

Normal criminal laws such as laws against murder, assault, theft, fraud, rape, and arson all involve direct violations of one or more of the rights to life, liberty, and pursuit of happiness, and as such will be the responsibility of Congress under this proposal.  Since the abolishment of the institution of slavery, it is no longer necessary for any of those laws to differ among states.  Murder is muder and should be treated the same in Oregon as it is in Georgia, as it is in all other states.  Giving the responsibility for criminal law to the federal government in combination with the proposed rights and limitations on the powers of congress ensures that issues in criminal edge cases can be appealed to and decided in the highest court with full consideration for individual rights.  This federalization of criminal law will require significant changes in judicial structure, as the federal courts will have to try many more cases than before.  The laws that Congress will need to make to create the necessary judicial structure are already authorized by the constitution in the original articles.  The responsibility for punishing many more criminals will also fall upon the federal government as a result of this proposal, and as such many prisons will need to be purchased from the states by the federal goverment.

State specific crimes, involving violations of state specific regulations do not directly involve a violation of any of the rights to life, liberty, or pursuit of happiness, and as such will remain the responsibility of the states.  These regulations are usually designed to prevent unwitting violations of the rights of others.  For instance, a state that regulates water usage ostensibly does so because if the use of water is left unregulated then individuals that use too much of the water may unwittingly violate the right to life of others and themselves by denying them access to water when the water runs out.  Another example would be a state that regulates driving speeds in residential neighborhoods because a driver that is going too fast would not be able to decelerate their vehicle in time to avoid hitting unexpected pedestrians and thus would unwittingly violate the pedestrian’s right to life.  These state regulations and the punishments for violating them can and should remain the responsibility of the states. However, the existence of such regulations may be made challengeable on constitutional grounds if they do not by some clear and provable chain of reasoning prevent an unwitting violation of the fundamental rights of others.


Arguments for my replacement bill of rights: Introduction to the new congressional powers and the first mandate thereof

The expansion of congressional power granted in my proposed replacement bill of rights consists of the following three mandates:

  1. Congress shall, by law, grant these rights in a limited or unlimited capacity to any other human or being that they deem to possess reason to such an extent that they are entitled to them.
  2. Congress shall, by law, determine when the actions of an individual violate these rights of another and are therefore indicative of a deficit of reason.
  3. Congress shall, by law, determine the consequences for such violations of rights up to and including temporary or permanent limitation or revocation of these rights.

The First Mandate

The first mandate grants congress the power to extend the rights to other individuals not specified in the proposal itself.  The proposal specifically grants the rights only to humans with ages greater than 18 years, and by granting the power to extend those rights in a limited or unlimited degree to others to congress the proposal empowers congress to apply their powers of reason to identify reason within others.  For instance, in the case of children, if they are viable in the sense that they possess the bodily constitution to reach the age of 18, then thay have the potential to become rightful adults.  As they will someday be a rightful adult, it stands to reason that no one should be allowed to maim them or inflict other permanent injury, because such would be inflicted upon the rightful adult that they would become.  Thus, it is reasonable to conclude that any viable child should have the right to life at least insofar as it applies to permanent injuries.  By continuing this line of reasoning and expanding it to include egregious mental inflictions I arrive at the conclusion that all children (because it is unreasonable to expend the effort to test whether each child is viable) should have the rights to life, liberty, and pursuit of happiness to the extent that they in exercise of their liberty or pursuit of happiness do not risk permanent damage to themselves or risk any violations of the rights of others.  That conclusion would make a good foundation for laws which define and regulate the sorts of things that constitute a risk and/or define and regulate guardians of children to make on the spot judgements regarding such risks.

The first mandate also allows for the contingency of emergence of intelligence in other species, to such an extent that they can comprehend that they must not violate the rights of humans.  Such has not occurred among any free animal population, and may never occur, but if it does, this proposal allows for it.

A drawback of the first mandate as opposed to delineating extensions of rights in the proposal itself is that the congress could potentially do nothing to extend rights to children.  It is presumed in such a case, that the parents of children would see fit to claim their children as, if not property, then still as some part of their own pursuit of happiness and demand protection for them as such.  This would leave defenseless the orphans or children without parents or guardians, and all manner of horrors could befall them.  The worse outcome being that some collective or individual of personal power could gather up and by any cruel means condition those defenseless orphans to be willing to be enslaved by that collective or individual even after their attainment of rights at the age of 18.  It is, by this proposal, the responsibility of congress to impose such extensions of rights as are necessary to prevent the creation of such individuals that desire enslavement, or otherwise desire to be a means onto others.

The first mandate could conceivably be perceived to permit Congress to extend these rights to non-citizens.  However, the proposed amendment specifically grants these rights to all humans above the age of 18, and does not exclude non-citizens nor citizens of foreign nations.  Thus under this proposal, a foreign individual living in a foreign country has the same basic rights as any citizen of the United States, however this does not prevent a reasonable lack of accommodation on behalf of the United States to these rights of foreign individuals.  For instance, if a foreign man is accused of the murder of a another foreign man in a foreign nation, there is no reason for the United States to grant the accused the right to a trial by jury in that foreign nation.  However, if the foreign man accused of such a murder were to flee to the United States, then the United States may, unless otherwise conflicting with a treaty, put the man on trail for the act.  Insofar as foreign enemies to the United States, it may well be reasonable to deem all of the citizens or at least all of the military of a foreign nation to be a credible threat to the right to life of Citizens of the United States or another country, at which time those foreign citizens may be exposed to consequences up to and including revocation of the right to life.  In other words, the United States will still be fully capable of waging war to defend itself despite the extension of these rights to foreign citizens.  However, such war will be challengable on the grounds of constitutionality in the courts of the United States, such that the individuals of the United States, or conceivably even individuals of the enemy nation that come to the United States in peace may employ their reasoning faculties in the attempt to bring about an end or some modification to the conflict.