Building Blocks For A New Constitution

The constitution of a country is the fundamental law that sets out the basic framework of its government. Beginning with the words We the People, the U.S. Constitution, for example, includes provisions that define the powers of the government and the rights of its citizens. When drafting a new constitution, it is important to consider what provisions to include to ensure a fair and just society. This may include provisions on voting rights, the amendment process, the protection of civil liberties, and the separation of powers.

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Voting rights

The Voting Rights Act of 1965 prohibited voter discrimination based on race, colour, or membership in a language minority group, requiring election materials to be provided in languages other than English. It also placed limits on states with a history of voter discrimination, though this was struck down by a Supreme Court decision in 2013. The Voting Accessibility for the Elderly and Handicapped Act of 1984 required polling places to be accessible to people with disabilities. The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) of 1986, and the Overseas Citizens Voting Rights Act of 1976, improved access to voting for military voters and citizens living outside of the U.S.

Despite these expansions of voting rights, the original Constitution's lack of an explicit right to vote has allowed for voter suppression and discrimination, particularly against racial minorities and women. Litigation under state constitutions, which do contain explicit voting rights, could be one strategy to protect voting rights. However, a comprehensive national solution is necessary, such as passing a voting rights amendment to enshrine an explicit right to vote in the U.S. Constitution.

Citizenship

Firstly, the constitution should establish a clear and comprehensive rule for citizenship. This includes defining who is a citizen of the nation and a citizen of a state. The Fourteenth Amendment to the United States Constitution, for example, provides a basic rule that all persons born or naturalized in the United States are citizens of the nation and the state in which they reside. This concept of birthright citizenship, also known as "jus soli," grants citizenship to anyone born within the country's territory, regardless of their parents' citizenship status.

However, there may be exceptions to this rule. For instance, the children of foreign diplomats, tribal members subject to tribal laws, and children born to invading armies are generally not considered automatic citizens under the principle of birthright citizenship. Additionally, the constitution should address the rights and privileges that come with citizenship. This includes fundamental privileges and immunities that are protected against abuses and equal protection under the law.

The constitution should also outline the process of naturalization, which is the legal process by which a person becomes a citizen of a country other than their country of birth. This process typically involves requirements such as a period of continuous residence in the country, a demonstrated ability to integrate into the society and knowledge of the language, history, and laws of the nation.

Furthermore, the constitution can include provisions for dual citizenship, recognizing that an individual may hold citizenship in two or more countries simultaneously. This provision would outline the rights and responsibilities of dual citizens and how potential conflicts of interest or allegiance may be resolved.

Lastly, the constitution should provide a framework for the loss or revocation of citizenship. This may include circumstances such as fraud or misrepresentation during the naturalization process, national security concerns, or prolonged periods of residence outside the country. The process for revocation should include due process, allowing citizens to defend their citizenship and providing a path for reinstatement or appeal.

Government legitimacy

The legitimacy of a government is a key consideration when drafting a new constitution. Max Weber, a German sociologist, argued that a government is legitimate if its citizens consider its rule rightful. Weber identified three types of legitimacy: traditional, charismatic, and rational-legal.

Firstly, traditional legitimacy is based on customary law and tradition rather than a written constitution. Under this form of legitimacy, there is often no clear separation between public funds and the monarch's private funds, and recruitment to the bureaucracy is based on social status or loyalty rather than merit.

Secondly, charismatic legitimacy is based on the ruler's exceptional personal qualities, such as military talent, sanctity, or exemplary character. The tie between the subjects and the ruler is often emotional and based on personal trust. However, charismatic legitimacy is unstable because it depends on the ruler's continued success and ability to provide economic prosperity.

Thirdly, rational-legal legitimacy, as suggested by American philosopher John Rawls, holds that the exercise of political power is legitimate if it is performed in accordance with a just constitution that has been accepted by the majority of citizens. Similarly, scholar Allen Buchanan argues that a government is legitimate only if its holding of political power is morally justified.

In addition to these theories of legitimacy, representational constitutional legitimacy asserts that a constitution is legitimate because it reflects the will, values, and identity of the citizens it governs. This view, grounded in the ideal of self-governance, suggests that a constitution should entrench the shared values of the people and be based on their consent.

Lastly, reason-based legitimacy suggests that a constitution is legitimate if it promotes justice, fairness, and the well-being of the community it governs, regardless of whether it represents the people's current will or values. This concept of legitimacy focuses on the belief that the constitution is "good" or "just" and will lead to positive outcomes for society.

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Judicial review

The inclusion of judicial review in a new constitution is essential to uphold the principles of democracy and maintain a system of checks and balances. It ensures that the government's actions are aligned with the constitution and protects civil rights and liberties. The judiciary's independence from political branches is also crucial, with justices typically holding office for life and their salaries protected during their term.

A new constitution should outline the specific provisions for judicial review, including the scope and limitations of its power. It should establish the criteria for reviewing the constitutionality of government actions and the procedures for challenging and invalidating laws or decisions deemed inconsistent with the constitution. Additionally, the constitution should define the role and authority of the judiciary in interpreting the law and ensuring its compliance with constitutional principles.

To ensure the effectiveness of judicial review, the constitution should also address the selection and appointment process of justices, promoting meritocracy and impartiality. It should outline the qualifications, experience, and ethical standards expected of judicial nominees and the mechanisms for their nomination, confirmation, and removal, if necessary. The constitution should also specify the term lengths and any applicable term limits for justices, ensuring a balance between institutional knowledge and the infusion of new perspectives.

Furthermore, the new constitution should establish a clear framework for the relationship between the judiciary and the other branches of government. It should delineate the boundaries of their interactions and collaborations while upholding the independence of the judiciary. This includes defining the circumstances under which the judiciary can be involved in reviewing laws, interpreting them, and determining their constitutionality. Additionally, the constitution should outline any mechanisms for resolving disputes or conflicts that may arise between the judiciary and other branches, ensuring a harmonious functioning of the government while preserving the judiciary's authority to safeguard the constitution.

National debt

The national debt is the total amount of money owed by the US federal government, accumulated over the nation's history. The US has carried debt since its inception, with debts incurred during the American Revolutionary War amounting to $75 million, borrowed primarily from domestic investors and the French government. The national debt enables the federal government to pay for important programs and services, even if it does not have the funds immediately available.

The US Constitution dictates that a "regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." This is managed by the Bureau of the Fiscal Service, which was created in 2012 and operates under the Department of the Treasury.

The Fourteenth Amendment, passed in 1866 and ratified in 1868, includes a Public Debt Clause, which distinguishes between the national debt of the US and any debts incurred from insurrection or rebellion against the country. This clause also prohibits the use of federal money to pay the Confederacy's war debts or compensate former slave owners.

In recent years, there has been a proposal to use the Public Debt Clause as a method for the president to raise the nation's debt ceiling without congressional approval. However, legal scholars are divided on whether such a move would be legally valid, and no president has attempted it.

To assure creditors, the Articles of Confederation provided that all debts and bills of credit emitted by Congress before the assembling of the United States would be considered a charge against the United States. This assurance was also included in the US Constitution, with the addition that these debts were contracted "before the adoption of this Constitution."

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