A Constitution for Ameriwanks

General Zod

Banned
This thread is meant to be a forum to discuss such changes to the original text of the US Constitution produced by the Consitutional Convention as it may be fitting for Ameriwank timelines.

It is assumed that in such a TL at the end of the American Revolutionary War the United States, besides their OTL territory, at the very least also include Canada, and quite possibly a large part or all of the other former British possessions in the Caribbean and Central America.

It is also assumed that in their subsequent ongoing extension the USA are able to conquer pretty much all the territory of North America and quite possibly a large part or all of South America, or even extensive posessions in other continents. The Civil War may or may not occur but if it does, the Union will win it.

The changes introduced to the Constitution are meant to make its workings more efficient and better adapted to the expansion and growth of the nation, and are assumed to be either the effect of the different set of states, or the result of the Framers having such greater political and constitutional foresight about the subsequent evolution and needs of the USA as it may deemed barely reasonable. Some good inspirations may be ratified or failed Amendments, the legislative production of the early USA, and the Constitution of the Confederacy.

The initial discussion is the continuation of one begun in this thread

https://www.alternatehistory.com/discussion/showthread.php?t=99307&page=2

and moved here so as not monopolize the original thread.
 

General Zod

Banned
Ah, I see your interest now. I'm slightly reluctant, however, to monopolize Lonewulf's thread. Perhaps we should start a new one.

Agreed. And here we are :D


Oh, I think things will indeed go far smoother if the BoR is in the proposed constitution. I see two problems / issues:

1) The manner of incorporation. When first debating the Bill of Rights, Madison initially wanted the amendments to make structural changes (even so far as removing periods and the like) that would be incorporated into the Constitution. It wasn't until the process got to the Senate that the practice of tacking on Amendments to the end of the Constitution was agreed to.

Well, personally I think the method of Amendment Madison proposed only makes better sense, things are much smoother if any Amendments are incorporated to the original text of the Constitution and you can get rid of obsolete provisions instead tacking Amendments like footnotes to the original text. Can we assume that direct incorporation of the Amendments is just another of those leaps of foresight we are granting the framers ?

If the BoR is going to be included in the Constitution from the begining, are its provisions scattered throughout the document--some in Article 4, some in Article 5, some in Article 1 (prohibitions on Congressional power)--or is there a distinct Article to contain them all?

Well, as far as it concerns the original BoR, I think that the method they used in the Confederate Constitution makes a lot of sense: since they are all meant to be checks on the powers of Congress, they end up in Article 1, Section 9, alongside the other limits to the powers of Congress. That also seems an appropriate place for our "domestic institutions and privileges" clausle, the "one bill one issue" clausle, and fiscal responsibility clausle.

The expanded Madison clausle on the limits to states actions, belongs in Article 1, Section 10, with the other prohibitions to states.

More technical clausles, such as the line-item veto, the non-voting seat for Cabinet members, and the limit to Congressional pay raises, look like natural extensions of existing Article 1 clausles about Congressional pay, Presidential veto power, and Congressmen holding federal offices, so they belong in Article 1, Section 7, and Section 6, respectively. And the Presidential firing power of federal employees belongs as a new clausle in Article 2, Section 2, just after the Presidential power of appointments.

Again, as a guide, I'm using wherever possible the Confederate Constitution, to check where the Framers might seen proper to fit new clausles.

And of course, new or expanded clausles about the Powers of Congress belong in Article 1, Section 8.

To some extent, this is mostly a question of syle, but questions of Constitutional style also affect the structure of the Constitution (that Article 1 deals with Congress reflects the belief that Congress would be the pre-eminent branch, for example). I imagine you might see a division--some rights would be included in the Congressional powers section (OTL 27th) will others (OTL 1st Amendment, TTL 9th Amendment) would be included in our new Article 7.

Yes, I've already envisaged this in the draft of the ATL Constitution I'm building from our discussions.

2) Ratification. Including a BoR runs two risks 1) contingent ratification (thus muddying the process) and 2) request for further amendments. OTL the States submitted something like 200 different requests for amendments to the First Congress that were condensed into the BoR. Some were wildly divergent--Virginia, for example, wanted to get rid of compulsory taxation.

Yes, this is a factor, however if the Federalists can show that pretty much all of the concerns that OTL were fulfilled by the BoR are already covered by the Constitution, the vast majority of those requests will die out. And the most loony requests (such as the no-taxation one) can be safely ignored. So far, I'm not aware of any serious request besides the ones fulfilled by the BoR which would require further amendments.

The 11th and 12th Amendments were just timely corrections of honest technical mistakes, so I've just assumed that our very insightful Framers just make the necessary corrections to the text of Article 3, Section 2, i.e.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State where the State is plaintiff;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects; but no State shall be sued by a citizen or subject of any foreign state.

And they just use the text of the 12th Amendment for the clausle of Article 2, Section 1 about Presidential Elections. If we assume they have enough foresight to make all the other changes we have discussed, they also have enough to avoid the technical mistakes that made OTL 11th and 12th necessary. Of course, this means that since the very first Presidential election of the ATL, President and VP will belong to the same party.


Furthermore, if the BoR is included, you'd see a few extra provisions: 1) something regulating representation and 2) OTL's 27th Amendment. The latter is fairly straightforward. The former is pretty tricky. OTL it was rejected for a lot of reasons, primary among which was that it was very complicated and depending on ones interpretation mandated a very large House or a very small one. TTL it might fair better if it's instead a general guarantee of "fair, equitable, and responsible" districts. This might enhance the ability of the judicial branch to redress gerrymandering.

Yep, As I said above, I've already seen the necessity of putting the text of OTL 27th in the clausle about the pay of Congressmen.

As it concerns the one about representation, I agree that the OTL one should still fail to be inserted since it was too complicated and obscure. I also agree that a general garantee of "fair, equitable, and responsible" apportionement of districts would work much better and be easy to instert in the original text. However, so far, I'm a bit stumbled about how to word it in an authentic-sounding phrase, and insert it in the text, even if I assume it should go in Article 1, Section 2.

By the way, I've tentatively worked out the initial numbers of Representatives for Canadian and Florida states:

Quebec six, Nova Scotia two, Saint John’s Island one, Newfoundland one, West Florida one, East Florida one.


If any Caribbean states are in the initial row, I assume any of them should get one, with the exception of Jamaica, which should get one.


Another related issue: if a substantial number of tiny, low-populated Caribbean island states are able to be part of the initial row, it is quite possible that the other states could take issue at this set of micro-states having a disproportionate influence in the Electoral College (the two senators set, being a cornerstone of states' rights would be probably left alone). In another (Big Tex's) Ameriwank TL, the author proposed the idea (the Caribbean Prerogative) of those microstates only getting one vote in the Electoral College. I think it's a good idea, but unfortunately I don't know how to word it.


However, I do think you'd need to explicitly include something about establishing a national bank. One the arguments against the National Bank was not only that Congress didn't have power to regulate the matter, but that if Congress had such a power, it couldn't delegate that power to a different body. Such issues have almost always been decided in favor of Congress possessing this authority.

I agree. That's why I propose an explicit clausle about the Congressional power

To establish and maintain a National Bank;


or should a better language be to "charter" a national bank ? I'm uncertain.

You might create a catch-all by including a Constitutional distinction between an Executive Department and an "independent agency." OTL this distinction exists in statue law and in theory, but not in the Constitution. You might include a Congressional power to "charter agencies to exericise such powers" with potential provisions to guard the independence of those agencies. That might muddle the authority of the executive branch, however.

That would be an excellent idea, but we need a wording that is sufficiently broad in scope to give the authority to create independent agencies on a wide range of fields yet creates a sharp distinction between independent agencies and proper Executive Departments so as not to usurp the authority of the executive branch. How to define what ought to be an independent agency and what ought to be a branch of the Executive power ?

I don't really see the need, especially given the already whopping extent of the Commerce power OTL. Granted it's large OTL because it's expanded in order to increase the scope of Congressional power in general.

True although if we follow the precedent of the national bank it may be better to provide an explicit clausle about the congressional power of subsidies. And from its reports to Congress, Hamilton cared about subsidies to manufacturing almost as much as he cared for a national bank.

That's why I propose an explicit clausle about the Congressional power

To provide for the common defence and promote the general Welfare, by granting for limited Times Bounties to useful Commerce, Manufacturing, and Agriculture;

Notice how I've borrowed the langauge of the copyright clausle, since the spirit of the norm would be similar.

"But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When entering onto the floor of either House, such officers shall be on oath or affirmation and Congress shall have authority to request and require them to produce information appertaining to his department, save that on the advice of the President issues of sensitive import to the national security shall be discussed only in closed session of Congress."


That seems an excellent idea, and I'm going to adopt it in the draft. I agree that the provision for closed session would be necessary. I'm just concerned whether "national security" would be appropriate language for the period. While the framers would easily recognize the opportunity to keep sensitive diplomatic and military matters a secret, probably they would use different terms. Probably "security of the United States" would be better. The wording of the provision may be a bit too stron, see below.

As a note, I think it's better not to quote or proposed text because that makes them harder to use in replies in the thread

OK

I've just made a significant dent in the doctrine of Executive Privilege (hence the proviso for closed session in brackets).

Well, in extreme cases Cabinet members could still protect Executive Privilege by temporarily vacating their non-voting seats in Congress.

I think it's an appropriate counter-part to the concerns I've cited: this passage makes it clear that Executive Officers addressing Congress are subservient to the representative branch and must answer questions if they are posed. The language I've used might be somewhat strong.

I agree about the spirit of your provision. I also share the concern about the langauge. IMO requiring them to take an oath may be excessive (if any, that might be a statutory provision in the law that creates the non-voting seat). A more appropriate wording may be:

"But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request him information appertaining to his department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress."

I imagine the President having to swear an oath (standard testimonial oath) when delivering the State of the Union to Congress, if he's doing so in person. A nice image, I think.

But irrealistic since the State of the Union derives from a wholly different provision of the constitution. Besides, requiring Cabinet members to take an Oath every time they address the House may be really excessive. It may be something that is required by statute when appropriate. Even for upholders of Congrssional supremacy it seems a bit too much.


Perhaps, though if so, we'd need our own thread. Also, we're just scratching the surface!

Yes, and in that spirit I throw you yet another couple of bones I've dig up from my exploration of the Confederate Constitution. About the first provision for fiscal responsibility, the text I've proposed reads:

Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the United States.


Now, except for our provision requriing a lesser supermajority (3/5 instead of 2/3) and dropping the requirement to record the yeas and nays each time, which I deem a bit excessive, the original clausle continues, requiring that


for the payment of claims against the United States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the Government, which it is hereby made the duty of Congress to establish.


Now, I deemed the requirement for such a tribunal to adjudicate a claim, more than a little bizarre, since I assumed claims against the US to mean the national debt, essentially. But it seems the Confederate framers were instead thinking of claims from third parties, like foreign states. If so, such a tribunal might indeed be an example of the independent agencies we were discussing above. But I'm unsure if this provision could bring any real advantage.


Moreover, there is yet another clausle about fiscal responsibility, which reads


All bills appropriating money shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered.

Now, this provision too looks like it might have its definite good uses. But I'm concerned about curbing the appetites of lobbying public contractors who lobby for additional grants might be really too anachronistic in 1787. What do you think ?

I agree. Hence I think we might want to explain them by having the NW Ordinance fail to pass.

It's reasonable. But It's not too difficult to have the NW Ordinance delayed, in the general mess that governance under the Articles of Confederation was. It just means the cis-Mississippi area will be settled in unorganized conditions until the Constitution is ratified.


This is a very good point. The tension and competition will definitely still be there. The question is whether we can errect some methods to diffuse some of the tensions.

True. But it also depends whether in any specific Ameriwank TL the Civil War is meant to be defused or not. In some it will, in others the ACW occurs and the Union still wins it.

E.g. in the TL I'm planning, the latter occurs. Yet, pretty much all of the constitutional changes we have discussed are fine, except I may be in need of a stronger constitutional prohibition for the international slave trade, albeit in a language that would be acceptable for the South.
 
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Agreed. And here we are :D

Ah, and look at all the elbow room!

Well, personally I think the method of Amendment Madison proposed only makes better sense, things are much smoother if any Amendments are incorporated to the original text of the Constitution and you can get rid of obsolete provisions instead tacking Amendments like footnotes to the original text. Can we assume that direct incorporation of the Amendments is just another of those leaps of foresight we are granting the framers ?

Actually, I very much disagree. This would require a new constitutional committee of style to produce a new version of the constitution with every amendment passed. Hence, ratification of each amendment is really ratifying a new version of the Constitution. Amendments would have to specify just what portions of the previous version they changed, down to precise clauses. While on the one hand this does make interpretation easier, it limits the scope of the text. One of the aspects of the US Constitution that makes it last is that it is vague; it allows for enough interpretation to meet changing circumstances. Furthermore, direct incorporation would probably lead to a Constitution that's extremely technical; part of the genius of the US Constitution is that it's short, written in non-technical language, and easily accessible to the entire population. The very fact that you can fit an easy to read copy in your coat pocket make the US Constitution a symbol of the USA and of popular sovereignty.

Furthermore, precedent and history are crucial to understanding the Constitution. The fact that any version of the US Constitution always incoporates aspects of now defunct language points to the need to consider that history. To some extent this does complicate reading the Constitution (and sacrifice the simplicity I cite above), but the balance between accessibility and complexity is usually appriately struck by with italicized text and footnotes. One want's the Constitution to be accessible, but not simplistic ab reductio.

Well, as far as it concerns the original BoR, I think that the method they used in the Confederate Constitution makes a lot of sense: since they are all meant to be checks on the powers of Congress, they end up in Article 1, Section 9, alongside the other limits to the powers of Congress. That also seems an appropriate place for our "domestic institutions and privileges" clausle, the "one bill one issue" clausle, and fiscal responsibility clausle.

The expanded Madison clausle on the limits to states actions, belongs in Article 1, Section 10, with the other prohibitions to states.

More technical clausles, such as the line-item veto, the non-voting seat for Cabinet members, and the limit to Congressional pay raises, look like natural extensions of existing Article 1 clausles about Congressional pay, Presidential veto power, and Congressmen holding federal offices, so they belong in Article 1, Section 7, and Section 6, respectively. And the Presidential firing power of federal employees belongs as a new clausle in Article 2, Section 2, just after the Presidential power of appointments.

That's one way to do things, but then the Constitution doesn't really have a Bill of Rights, does it. Given the concerns of George Mason and the template of the Virigina Declaration of Rights, I think there will be pressure to do create a new Article that gathers all the rights together.

Furthermore, having a handy list of Rights (rather than having them scattered through the document) is a part of the idea of Bill of Rights: that the population should have a short, concise and authoritative list of what their rights are. This is more in line with the practice of state constitutions, which usually have a separate section that expressly lists protected rights.

Accordingly, I think the Framers would collect some of the more important provisions of the Constitution--those they considered essential--and incorporate them into a new Article of the Constitution. I would imagine most of the Rights which have to do with personal guarantees would be incorporated here. Hence, remove writs of habeas corpus from Article I and include it here. The rest are more procedural (i.e. bills of attainder, ex post facto, ban of titles of nobility). Pretty much only the 1st Amendment specifically mentions a denial of power to Congress; the rest are more general. I'd imagine the language of the first amendment might thus be changed. Accordingly, the protection offered by it might increase a tad. Additionally, the 10th Amendment, powers reserved to the states, and our revision to it, would occur in OTL Article IV, which would become TTL's Article V. Article IV would be the Bill of Rights.

Figuring out just what of the provisions to include in such a section might well be iffy, but it could be explained by the speed with which the Framers include it in the Constitution. I imagine a TTL George Mason who gets together with Madison and shows him a draft.

Again, as a guide, I'm using wherever possible the Confederate Constitution, to check where the Framers might seen proper to fit new clausles.

Well, that's one possible guide, but not really definitive, since the Confederate Framers had their own ideas about things. There are some other sources. Larry Sabato has some ideas about a very different Constitution, but they aren't really germane to a differen 1787 Constitution (except for the represenation guarantee). I'd consult the Anti-Federalists as well (there are a couple different collections of Anti-Federalist writings); also, there've been a number of different proposal made to amendment the Constitution OTL. I've made a list of some defects we haven't touched on just yet.

Yes, this is a factor, however if the Federalists can show that pretty much all of the concerns that OTL were fulfilled by the BoR are already covered by the Constitution, the vast majority of those requests will die out. And the most loony requests (such as the no-taxation one) can be safely ignored. So far, I'm not aware of any serious request besides the ones fulfilled by the BoR which would require further amendments.

Well taking away complusory taxation isn't all that looney in 1787; that a country / states that had just fought a very bloody, expensive (both from the colonies point of view, per capita) war to prevent taxation would not less than ten years after winning its independence seek to impose taxes on itself is not an easily deducible development. The vote to ratify in several key states -- Virginia and New York -- was very close. They will want some kind of indiciation that their concerns are being dealt with; the process of proposing the Bill of Rights provided just that OTL.

The 11th and 12th Amendments were just timely corrections of honest technical mistakes, so I've just assumed that our very insightful Framers just make the necessary corrections to the text of Article 3, Section 2, i.e.

I'll grant that for the 11th Amendment, but not for the 12th. The mistake made in creating the process of Presidential and Vice-Presidential selection wasn't just technical: it was that the Founders had no experience with the operation of political parties nor of the role of parties in successful democracies / represenative governments.

The process as initially outlined is an attempt to organize an American political system that the Framers expected would remain focused on individual states. In the abscence of a great man like Washington, the system expects that there wouldn't have been consensus among the states as to the choice of President. Hence, they each get two votes, one to waste on a favorite son, one to chose their favorite non-resident of their state. That's not two (or more) coalitions of ideas and interests contesting the election in order to forward its policies and agenda in governance and law. In many ways, it's more like a system the Ancient Greeks or Roman might have used. The Framers didn't think the VP would be the 'opponent' of the President, just the next most popular, most well-liked, most influential figure. This change is reflected in the fact that in the original version, not only is the Vice-President the runner up, but the House selects from the top 5 candidates, not the top 3.

To have the Framers be more insightful either requires that they acknowledge the function of political parties (an extraordinary, unprecedent insight) or that they stumble into a better arrangement by accident. I'd take the latter route -- the question is how the stumbling might come about and what the system resembles as a result.

I'd also argue that even the system for deadlocked elections created by the 12th Amendment isn't sound. The difficulty and unpredicatablity posed by the House electing by states -- and the inability to form anything like a co-alition -- has provided a singnificant incentive to extraconstitutional practices.

As it concerns the one about representation, I agree that the OTL one should still fail to be inserted since it was too complicated and obscure. I also agree that a general garantee of "fair, equitable, and responsible" apportionement of districts would work much better and be easy to instert in the original text. However, so far, I'm a bit stumbled about how to word it in an authentic-sounding phrase, and insert it in the text, even if I assume it should go in Article 1, Section 2.

Depending on the phrasing, it might go in my proposed Article IV. If it has the air of a right--i.e. a vague guarantee--this should be the case; if it spells out a mechanism, it should go where you suggest.

I'd imagine the phrasing should be something like this: "The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices and should in all cases endeavor to express the free choice of the respective community of electors."

By the way, I've tentatively worked out the initial numbers of Representatives for Canadian and Florida states:

Quebec six, Nova Scotia two, Saint John’s Island one, Newfoundland one, West Florida one, East Florida one.

Six for Quebec? Seems a bit high. Also, the names are liable to be very different here, depending on the exact method of conquest of Canada. Umbric Man has a TL going with 2 different Canadian states.


If any Caribbean states are in the initial row, I assume any of them should get one, with the exception of Jamaica, which should get <<two>>. This seemed like a typo.


Another related issue: if a substantial number of tiny, low-populated Caribbean island states are able to be part of the initial row, it is quite possible that the other states could take issue at this set of micro-states having a disproportionate influence in the Electoral College (the two senators set, being a cornerstone of states' rights would be probably left alone). In another (Big Tex's) Ameriwank TL, the author proposed the idea (the Caribbean Prerogative) of those microstates only getting one vote in the Electoral College. I think it's a good idea, but unfortunately I don't know how to word it.

I haven't read Big Tex's TL, but it seems to me very iffy. Do such states retain the minimum representation in the Senate and the House? Such a method violates the symmetry in the respective weights of the states in electing the President and in forming the Congress. I would have to imagine that such islands would be ammenable to forming groupings in order to form states. Furthermore, how much smaller is the smallest of them than Rhode Island?




I agree. That's why I propose an explicit clausle about the Congressional power

To establish and maintain a National Bank;


or should a better language be to "charter" a national bank ? I'm uncertain.

Probably "charter".

That would be an excellent idea, but we need a wording that is sufficiently broad in scope to give the authority to create independent agencies on a wide range of fields yet creates a sharp distinction between independent agencies and proper Executive Departments so as not to usurp the authority of the executive branch. How to define what ought to be an independent agency and what ought to be a branch of the Executive power ?

Perhaps the following:

Congress shall have power...to charter agencies and institutions, including a National Bank, independent of the executive of the United States, provided that the purpose and activities of such agencies conform with the powers delegated by this Constitution to Congress and do not encroach upon the responsibilites of the Executive of the United States. The establishment of such institutions shall require a three-fifths vote in both Houses of Coungress. The charter of such institutions shall specify a term the institution. The principal officers of such institutions shall serve a term specified in the institution's charter, shall be selected by the Senate upon nomination by the President of the United States, and shall by removed by impeachment by the Congress of the United States, death, or find of permanent disability by a majority vote of the President, Vice-President, and Principal officers of the Executive Departments confirmed by Congress.

This requires, however, having a more detailed assessment of what the Executive is and how Executive Departments are created. Furthremore, it could very easily be taken to far: for example, is the Post Office such a Department?

Perhaps just this: "Congress shall have power to establish agencies and institutions, including a National Bank, in order to carry out its delegated powers. Chartering such institutions shall require a three-fifths vote of both Houses of Congress."

True although if we follow the precedent of the national bank it may be better to provide an explicit clausle about the congressional power of subsidies. And from its reports to Congress, Hamilton cared about subsidies to manufacturing almost as much as he cared for a national bank.

That's why I propose an explicit clausle about the Congressional power

To provide for the common defence and promote the general Welfare, by granting for limited Times Bounties to useful Commerce, Manufacturing, and Agriculture;

Notice how I've borrowed the langauge of the copyright clausle, since the spirit of the norm would be similar.

Well, I suppose if Hamilton wanted it, we might allow it. However, I think he was misguided in supposing it a useful tool of policy. It seems to me like an excuse for state interference and pork barrel.



That seems an excellent idea, and I'm going to adopt it in the draft. I agree that the provision for closed session would be necessary. I'm just concerned whether "national security" would be appropriate language for the period. While the framers would easily recognize the opportunity to keep sensitive diplomatic and military matters a secret, probably they would use different terms. Probably "security of the United States" would be better. The wording of the provision may be a bit too stron, see below.

Well, in extreme cases Cabinet members could still protect Executive Privilege by temporarily vacating their non-voting seats in Congress.

I agree about the spirit of your provision. I also share the concern about the langauge. IMO requiring them to take an oath may be excessive (if any, that might be a statutory provision in the law that creates the non-voting seat). A more appropriate wording may be:

"But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request him information appertaining to his department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress."

I kind of like the idea of the oath: it's really no different than having various Cabinet Secretaries testify before a Congressional Committee, when they also must take an oath. I suppose the difference is that you imainge Congress granting them a formal "seat"; I had merely envisioned floor privileges. Also, the phrase "request and require" I thought important to denote Congressional authority to compel testimony. It's the same phrase used in military orders.


But irrealistic since the State of the Union derives from a wholly different provision of the constitution. Besides, requiring Cabinet members to take an Oath every time they address the House may be really excessive. It may be something that is required by statute when appropriate. Even for upholders of Congrssional supremacy it seems a bit too much.

I'd imagined that it simply became traditional. Furthermore, delivering "information on the State of the Union" and doing so in person to a Joint-Session of Congress are very different. The Constitution requires the former, not the latter. Since Wilson (and before Jefferson) the State of the Union was a floor speech, but it hasn't always been.

Again, Cabinet officers do this all the time when they go before a committee. All they'd be saying is "I swear to tell the truth, the whole truth, and nothing but the truth."


for the payment of claims against the United States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the Government, which it is hereby made the duty of Congress to establish.


Now, I deemed the requirement for such a tribunal to adjudicate a claim, more than a little bizarre, since I assumed claims against the US to mean the national debt, essentially. But it seems the Confederate framers were instead thinking of claims from third parties, like foreign states. If so, such a tribunal might indeed be an example of the independent agencies we were discussing above. But I'm unsure if this provision could bring any real advantage.

I agree. This seems very strange. I'm not even 100% sure of the supermajority clause: it grants a lot of authority to the Executive. A "small government" President, like Jefferson, could easily force a shut down without a Congressional majority. In such an instance, it would be easier to impeach (but not to convict) a sitting President than to increase the budget over his (or his Cabinet officers) advice.

Plus who gets to request a budget for the "Independent Agencies"?



Moreover, there is yet another clausle about fiscal responsibility, which reads

All bills appropriating money shall specify in Federal currency the exact amount of each appropriation and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered.

Now, this provision too looks like it might have its definite good uses. But I'm concerned about curbing the appetites of lobbying public contractors who lobby for additional grants might be really too anachronistic in 1787. What do you think ?


I think it's a bit much. Too many restrictions and / or barriers and you have a new Articles of Confederation, even if the restrictions are well-intentioned.
 
Other potential defects of the 1787 Constitution:

1) Secession: To me this seems to be the big one. Regardless of whether you're trying to avoid the Civil War, the fact that a silence which could conote illegality could also mean legality made for a potent threat in the 19th century. The most potent solution, IMO, is to allow secession, but only under certain conditions: first, a petition by a state convention elected for the purpose; second, a two-thirds vote by Congress; third, a two-thirds vote by another convention and/or referendum. Such a process is complicated enough that I doubt it would ever be successfully used; if it's flouted, rebels have far less ground to stand one.

2) Continuity of Government: Secession laws have changed through US history. There's also the question of Presidential disability. What happens if a majority of Representatives die? What about appointing VPs? What about special elections?

3) Deadlocked Presidential election: as stated previously, even the method used by the 12th Amendment is far from perfect.

4) Fugitive slave clause: caused a ton of trouble with the North resenting slave catchers operating on their soil and the South resenting Northern refusal to enforce constitutional provisions.

5) The extent of the Commerce clause and the power of Federal compulsion of the states (implied by Federal money): anachronistic in the 18th century, we've actually provided something of a bulwark against both in the "domestic institutions" clause.

6) Size of the US House. Sure there's the vague guarantee of fair elections, intended to prevent gerrymandering / rotten borroughs (the Framres would be familiar with the latter). But the actual number of Representatives determines a lot about the nature of government in the USA. The House of Reps is by far on of the smallest lower houses in the Western world today: the House of Commons has well north of 600 members while the Hose of Reps has only 435. Per capita, there's an even large discrepancy. Even in 1788, the size of the House was pretty small. A larger house decreases the marginal authority of each member and thus increases the power of the Speaker and parties (as well as the President).

7) Even the most perfect Constitution for 1787 will still need to change by 1900 for the US to become powerful. For one, it would be hard to have income taxes allowed in 1787 and it'd be equally hard to finance a Great Power government without them (or other such direct taxes). Additionally, if indirect election of Senators persists, the Senate will remain an unpopular body; this could increase the power of the House of Representatives. I for one think getting rid of indirect election isn't that good a thing because a stronger House of Reps would be a good thing and because direct election makes it very, very easy to ignore state politics completely, event though US states do most of the governing.

8) Scope, size, nature, and pay of the US Federal Judiciary and Supreme Court -- easily becomes a pawn of Congressional-Presidential battles, which makes the judiciay less independent.

9) Judicial Review. Not anywhere in the US Constitution, but easily implied by the existence of the Supreme Court and its independence from Congress and the President. Nonetheless, Congress still does much of the work to organize the Judiciary branch by establish lower courts and by establish the jurisdiction of the Supreme Court, save a few Constitutional issues.

10) Flexible minimum limit for jury trials in civil cases.
 

General Zod

Banned
Actually, I very much disagree. This would require a new constitutional committee of style to produce a new version of the constitution with every amendment passed. Hence, ratification of each amendment is really ratifying a new version of the Constitution. Amendments would have to specify just what portions of the previous version they changed, down to precise clauses.

Yes, that would indeed be necessary. But I don't think this would put a significantly higher workload on the Congress. If you look at OTL ratified Amendments, they are typically rather direct in language and scope (although exceptions exist, such as the last clausles of the XIV Amendment) and if directly incorporated, they would either go to be new clausles in the BoR section if they grant new civil rights (e.g. the XIII, first clausle of the XIV, XV, XIX) or go to replace or add whole clausles in Article I or II (e.g. the XVI on income tax, the XVII on direct elections of senators, the XXV on presidential inability). It seems like selecting a place for new text in the original document would be rather straightforward.

While on the one hand this does make interpretation easier, it limits the scope of the text. One of the aspects of the US Constitution that makes it last is that it is vague; it allows for enough interpretation to meet changing circumstances. Furthermore, direct incorporation would probably lead to a Constitution that's extremely technical; part of the genius of the US Constitution is that it's short, written in non-technical language, and easily accessible to the entire population.

I fail to see why direct incorporation would make the Constitution much more technical and narrow-worded than it is OTL. What makes the Amendments remain sufficiently broad and non technical in langauge is that there is the precedent of the original text, and that the amendment is a complex and multi-step process. Amendment attempts that are too narrow-worded or technical would die in the ratification process, in all likelihood. I really fail to see why direct incorporation would move the Congress to use a different kind of approach than the OTL footnotes.

The very fact that you can fit an easy to read copy in your coat pocket make the US Constitution a symbol of the USA and of popular sovereignty.

Sticking the text of the XIV or the XXV in the midst of the original document makes it no less so. So far, the Amendments have gone rather technical only when it was really vital to do so, e.g. tinkering with the details of presidential succession.

Furthermore, precedent and history are crucial to understanding the Constitution. The fact that any version of the US Constitution always incoporates aspects of now defunct language points to the need to consider that history. To some extent this does complicate reading the Constitution (and sacrifice the simplicity I cite above), but the balance between accessibility and complexity is usually appriately struck by with italicized text and footnotes. One want's the Constitution to be accessible, but not simplistic ab reductio.

Precedent and history are important, but direct incorporation strikes a nice balance between the prestige of history, given the load of the mostly unchanged text and the vitality shown by the new bits that are added or changed to keep up with changed circumstances. The simplicity and accessibility factors you cite are very important, and the continuing success of the Constitution is also linked to its vague text that leaves ample margin to adaptable interpretation. However, IMO that is due to three factors: the excellent skill of the Supreme Court to provide interpretation, reducing the need for actual changes, the complexity of the ratification process, which kills hasty changes, and the precedent of the original language. none of these factors would be changed by the lack of obsolete text showing that the original document once sanctioned slavery, or the framers picked a faulty method for electing the President or did not trust the people with electing their senators.

This even more so if we consider that our optimized const. would already incorporate the first 11-12 Amendments and the 27th in the original text, which almost halves their number, and its optimized nature would make a number of ATL ones unnecessary.

That's one way to do things, but then the Constitution doesn't really have a Bill of Rights, does it. Given the concerns of George Mason and the template of the Virigina Declaration of Rights, I think there will be pressure to do create a new Article that gathers all the rights together.

Well, I do understand you concern, and the noticeability of the BoR in the integral text of the Const. may be an important concern. So I would be inclined to agree with you. I am just be mindful that there are several provisions of the OTL text that are as much as fundamental "rights" as the ones found in the BoR. And those are scattered in the text, e.g. in Article I section 9, or Article IV section 2. I am thinking of stuff like:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.
(Article I, section 9)


The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
(Article IV, section 2)

So what are we going to do: put the BoR in its own new article, and leave these in the original places, or move these around, too ?

Furthermore, having a handy list of Rights (rather than having them scattered through the document) is a part of the idea of Bill of Rights: that the population should have a short, concise and authoritative list of what their rights are. This is more in line with the practice of state constitutions, which usually have a separate section that expressly lists protected rights.

Well, I suppose it could be done. Even if I notice that putting the BoR at the end of Article I, section 9 does create such a list, and the Constitution is short and simple-worded enough that finding the BoR list is simple enough whether you have them in their own article or a their own section of another Article.

Accordingly, I think the Framers would collect some of the more important provisions of the Constitution--those they considered essential--and incorporate them into a new Article of the Constitution. I would imagine most of the Rights which have to do with personal guarantees would be incorporated here.

Ok, I suppose it could be done, but where would you put such an article ? It would still end up in the middle of the text, I suppose after Article III or IV (it would be the new Article IV or V) since putting it at the very end after the amendment and ratification procedures would look rather odd.

Hence, remove writs of habeas corpus from Article I and include it here. The rest are more procedural (i.e. bills of attainder, ex post facto, ban of titles of nobility).

Argh. No, on this I radically disagree. Forbiddance of bill of attainder, ex post facto laws and discrimination against citizens of other states are as fundamental garantees of civil rights as freedom of speech and trial by jury. Ex post facto laws make criminal justice as much as tyrannical as an unfair trial or cruel punishments.

Pretty much only the 1st Amendment specifically mentions a denial of power to Congress; the rest are more general. I'd imagine the language of the first amendment might thus be changed. Accordingly, the protection offered by it might increase a tad.

Hmm, a stronger wording of the First ? This looks like very, very interesting. Please post what are you thinking of. I'm all ears and eyes. Just we have to be mindful that a really stronger protection here might well need to be reflected in Madison's Amendment on the states (and the clausle on territorial government).

Anyway, if we start meddling with the BoR, I would have some adjustments of mine to propose. E.g. I would deem a rather important improvement to reword the 8th to read:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and excessive punishments inflicted.

Removing the "unusual" provision would close the current loophole that makes whatever abysmally unfair punishment constitutional as long as a sufficient numner of states mandates it.

Well, technically all the BoR is a denial of power to Congress, hence the choice of putting it in Article I, Section 9, just like Madison' Amendment and the XIV are a denial of power to the states. But I suppose it could be done this way, too.

However, setting up a new article for citizens' rights require going through the Const's text with a fine comb and picking up all the stuff that looks like a right. Tentatively, I propose the following as the content of the new article:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; 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, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and excessive punishments inflicted.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Rights protected by the constitutions of the several States, including their domestic institutions and privileges, are not to be infringed by this Constitution or any law of the United States.

No State shall violate the equal rights of conscience nor the freedom of speech or of the press nor the trial by jury in criminal cases nor shall any state deprive a person of life, liberty, or property, without due process of law.


The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

Additionally, the 10th Amendment, powers reserved to the states, and our revision to it, would occur in OTL Article IV, which would become TTL's Article V. Article IV would be the Bill of Rights.

Possibly, but in the framers' minds, at least pur "domestic institutions" clausle would look like a civil rights garantee, too, as well as Amend 10 (IMO these two provisions look best as separate, if consecutive, clausles. Keeps the text simpler). So IMO it works best if you stuff it all together, as in my above list.

Well, that's one possible guide, but not really definitive, since the Confederate Framers had their own ideas about things.

Indeed. I've just used them as a possible example of how to incorporate the BoR in the text of the constitution, and as a source of possible good ideas for genuine efficiency improvements as they may result from in-period hindsight (or ITTLs, prophetic insight on the part of the 1787 framers).

There were several other innovations of them, such as making slaveholding the most ironclad "right" of the constitution, or forbidding protectionist tariffs or expenses for infrastructure improvements or denying voting rights to non-citizens, which look like the Southerners venting off their own pet peeves, and not a genuine efficiency improvement of the political process or the nation's welfare or something the framers as a whole would agree a compromise upon. So I left them strictly alone. By the way, by looking at their own constitution, the lie is put to the confederate apologists' claim that their own revolution was to safeguard states' rights and not to safeguard slavery. Very few additional rights are given to states, whileas you find a truckload of new clausles making slavery sacrosanct.

The only other innovation of them that has questionable merit is a Presidential six-year one-term limit, but term limits to Presidents in 1787 opens so big a can of worms (or better, butterflies) that I'd prefer to leave discussion of that when we have pretty much exausted most other topics.

There are some other sources. Larry Sabato has some ideas about a very different Constitution, but they aren't really germane to a differen 1787 Constitution (except for the represenation guarantee).

Hmm, I don't have the actual book, but I'm presently reviewing the shorthand list his proposed changes on wikipedia. His proposals certainly deserve further reflection on my part, and further discussion from both of us, but indeed several ideas of him, while very useful would simply look too anachronistic in 1787.

Anyway, to make a very cursory review for now :

Expand the Senate to 136 members to be more representative: Grant the 10 most populous states 2 additional Senators, the 15 next most populous states 1 additional Senator, and the District of Columbia 1 Senator.

The 1787 framers wouldn't likely touch this with a 10-foot lead pole. Equal number of Senators was a cornerstone of the Great Compromise.

Appoint all former Presidents and Vice Presidents to the new office of “National Senator.”

Hmm, this may have a good precedent in the Roman Senate, so it may be something that would occur to the classic-minded Framers. But we need more detail on the workings. How much would the term of a national senator would last ? the usual six years ?

Mandate non-partisan redistricting for House elections to enhance electoral competition.

An anti-gerrymandering provision. We are already concocting something about it, and it's something the Framers might think of, given the "rotten boroughs" problem of the British Parliament. We are already working on this.

Lengthen House terms to 3 years (from 2) and set Senate terms to coincide with all Presidential elections, so the entire House and Senate would be elected at the same time as the President.

Hmm, I'm doubtful on this. It would contrast the framers' intent to slow the pace radical political change would sweep through the government. Your opinion ?

Expand the size of the House to approximately 1,000 members (from current 435), so House members can be closer to their constituents, and to level the playing field in House elections.

Hmm, a clausle that gives an upper size limit to the population of districts and/or mandates roughly equal population size in districts ? This is quite interesting. Not something that would be an immediate concern to the FF of a sparsely populated country, but since they are going to have excellent foresight, this could occur to them as part of making district redistribution fair. So this ought to become part of the representation clausle. We only need to be mindful that in this kind of TLs, the USA is going to become way bigger than OTL (at the very least, pretty much all of North America, and quite possibly South America, Australia, etc.) so the House needs to become manageable. The biggest working OTL legislature is about 600-700 members.

Establish term limits in the House and Senate to restore the Founders’ principle of frequent rotation in office.

Quite possible, but this really needs to be discussed together with Presidential term limits.

Add a Balanced Budget Amendment to encourage fiscal fairness to future generations.

A very worthy concern, and one that would give a big efficiency boost to the constitution, but we are already tackling some of that issue with our own fiscal responsibility procedure. True, that won't check the case of Congress and President working together to expand the deficit. This is mainly a modern concern (the USA didn't got a deficit till the 20th Century, IIRC) but it is also something that might come to the attention of fiscally-minded, foresighted framers. Do you think we should tackle the issue now ?

Create a Continuity of Government procedure to provide for replacement Senators and Congresspeople in the event of extensive deaths or incapacitation.

This only becomes a vital concern with the invention of WMDs. I have difficulty envisaging how this could become a concern for the framers. It would require them being worried about a successful invasion that captures most of the government (although, this almost happened in the War of 1812).

Establish a new 6-year, 1-time Presidential term with the option for the President to seek 2 additional years in an up/down referendum of the American people.

Presidential term limits, that eternally-controversial topic. Oh well, if we really need to tackle that issue now, my own proposal is for a six-year term with the prohibition of consecutive reelection (so as not to deprive the country of the option to seek the expertise of elder statesmen if the need arise). Likewise, any hard limit to congressional terms should only forbid consecutive reelections. That breaks the power advantage of the incumbent, but leaving the nation the freedom of recalling expert statesmen is very useful.

Limit some Presidential war-making powers and expand Congress’s oversight of war-making.

This is another concern that only became real in modern times. All US wars in the first century and half were fought after a Congressional DoW, and admittedly, all major US wars have been fought after Congressional approvation, effectively equivalent to a DoW in all but name. The most that could be done about it is to constitutionalize the War Power Act requirement that the President needs Congressional approvation to commit US troops in a long-term engagement. Any more than that and it would destroy the President's power to react effectively to sudden threats. It is not the constitution's fault that the Congress may lack the spine to force the President to pull the plug on hopeless or unpopular military commitments.

Give the President a line-item veto.

We have already covered that. :D

Allow men and women not born in the U.S. to run for President or Vice President after having been a citizen for 20 years.

That's wholly doable. That's the kind of foresight that could have easily occurred to the Framers.

Eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.

Grant Congress the power to set a mandatory retirement age for all federal judges.

Apparently not a bad idea, but I admit I lack expertise on this issue. Your opinion ?

Expand the size of the Supreme Court from 9 to 12 to be more representative.

Give federal judges guaranteed cost of living increases so pay is never an issue.

Thees two don't need any change in the constitution.

Write a new constitutional article specifically for the politics of the American system.

:confused:

Adopt a regional, staggered lottery system, over 4 months, for Presidential party nominations to avoid the destructive front-loading of primaries.

Totally anachronistic. Primaries didn't even exist as a concept in 1787.

Mend the Electoral College by granting more populated states additional electors, to preserve the benefits of the College while minimizing the chances a President will win without a majority of the popular vote.

This is tricky, given that it impinges on the integrity of the Connecticut Compromise, but it might be wholly doable. It would probably require that several mini-states belong in the original row.

Reform campaign financing by preventing wealthy candidates from financing their campaigns, and by mandating partial public financing for House and Senate campaigns.

Another wholly anachronistic provision.

Adopt an automatic registration system for all qualified American citizens to guarantee their right to vote is not abridged by bureaucratic requirements.

Hmm, this might on a stretch be part of equal representation, but how to word the issue in a form recognizable to 1787 people ?

Create a Constitutional requirement that all able-bodied young Americans devote at least 2 years of their lives in service to the country.

No. In the Framers' mind, this would be sanctioning military draft, something abhorrent in their experience.

I'd consult the Anti-Federalists as well (there are a couple different collections of Anti-Federalist writings);

Kindly point me up to sources of thse that are accessible online, or post what you would like as genuine worthy ideas of theirs ?

also, there've been a number of different proposal made to amendment the Constitution OTL.

Hmm, several of these concern stuff that we have been discussing or might just start to, such as line-item veto, fiscal responsibility, balanced budget, presidential and congressional term limits. etc. Much of the remaining stuff has been just banner-waving in the culture wars, or wholly anachronistic in 1787 (e.g. child labor, the ERA).

Now, there are some glaring omissions in the Constitution whose addition would be a genuine improvement.

E.g. I've always thought that the original document could have been much improved by adding to the BoR the essential provisions of the XIV Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, to a degree we have already incorporated part of it (the due process) in the expanded form of Madison's Amendment, but it would be very nice if we could find a way to add the "privileges and immunities" and "equal process" garantees to the BoR (although the latter would likely need a rewording so that it does not apply to slaves).

Moreover, I'm always thought that the Constitution would be much improved if the BoR would contain an explict protection of privacy. I find myself struggling to provide a wording that would protect that and 1787 people would acknowledge as a worthy concern.

I've made a list of some defects we haven't touched on just yet.

By all means, please post them straightforward.


Well taking away complusory taxation isn't all that looney in 1787; that a country / states that had just fought a very bloody, expensive (both from the colonies point of view, per capita) war to prevent taxation would not less than ten years after winning its independence seek to impose taxes on itself is not an easily deducible development.

Nonetheless, the fact the framers saw fit to grant Congress a very broad power to tax shows how vital to the well-functioning of government they acknowledged it (esp, after the experience of the Articles of Confederation). Tax resistance has been a long-standing undercurrent of the fringes of American political thought, but I really don't see the issue ever getting enough momentum as to put a serious block in the ratification process. Notice how easily the newborn federal government dispersed the Whiskey Rebellion.

The vote to ratify in several key states -- Virginia and New York -- was very close.

In all likelihood, incorporating the BoR will make them rather more favourable to ratification, as the main objection is taken away.

They will want some kind of indiciation that their concerns are being dealt with; the process of proposing the Bill of Rights provided just that OTL.

This assumes that their objections to the Constitution are still so substantial that they would still want some changes be made as the price of their ratification, even if the BoR concern is already satisfied. I'm quite doubtful of that. Which would such concerns and changes be ?

I'll grant that for the 11th Amendment, but not for the 12th. The mistake made in creating the process of Presidential and Vice-Presidential selection wasn't just technical: it was that the Founders had no experience with the operation of political parties nor of the role of parties in successful democracies / represenative governments.

True, however, it's far from impossible for them to become aware of the danger of putting together a mutually-hostile P and VP in the same Administration. They might hearken to the experience of Ancient Greece and Rome. E.g. one of them might compare it to "putting Caesar and Silla in the same government".

The process as initially outlined is an attempt to organize an American political system that the Framers expected would remain focused on individual states. In the abscence of a great man like Washington, the system expects that there wouldn't have been consensus among the states as to the choice of President. Hence, they each get two votes, one to waste on a favorite son, one to chose their favorite non-resident of their state. That's not two (or more) coalitions of ideas and interests contesting the election in order to forward its policies and agenda in governance and law. In many ways, it's more like a system the Ancient Greeks or Roman might have used. The Framers didn't think the VP would be the 'opponent' of the President, just the next most popular, most well-liked, most influential figure. This change is reflected in the fact that in the original version, not only is the Vice-President the runner up, but the House selects from the top 5 candidates, not the top 3.

This is all true, but I would point out that you can still envisage this kind of system, but also be mindful of the risk of electing mutually-hostile influential figures, even in the lack of a true party system. Creating independent scrutinies for P and VP still allows the selection of the next most popular and influential figure as VP, but ensures you don't elect two sworn enemies. And this may occur even in the lack of parties. You indeed sacrifice a bit of the opportunity to waste a vote on a favorite son, but you are garanteed a more efficient government, even if ytou lack parties. So I deem they would have chosen the separate ballot, if just the thought of the issue had occurred to them.

or that they stumble into a better arrangement by accident. I'd take the latter route -- the question is how the stumbling might come about.

See my point above, they could have just thought that " we must not elect Caesar and Pompeus together".

I'd also argue that even the system for deadlocked elections created by the 12th Amendment isn't sound. The difficulty and unpredicatablity posed by the House electing by states -- and the inability to form anything like a co-alition -- has provided a singnificant incentive to extraconstitutional practices.

You are right that such a system isn't very efficient. However, just like the Electoral College, it was a serious nod to states' rights.

Hmm, tentatively, how about we strike the House electing by states, and we create a double majority:

But in choosing the President, a quorum for this purpose shall consist of two-thirds of the whole number of Representatives from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.


Depending on the phrasing, it might go in my proposed Article IV. If it has the air of a right--i.e. a vague guarantee--this should be the case; if it spells out a mechanism, it should go where you suggest.

I'd imagine the phrasing should be something like this: "The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices and should in all cases endeavor to express the free choice of the respective community of electors."

A nice wording. I suppose this would also be easily interpreted as to mandate districts roughly equal in size. Do you think it would also be strong enough as to mandate automatic registration of voters, and to forbid disenfranchisement of felons ?

Tentatively, IMO it looks more like a garantee on electoral fairness than a civil right, so I'd put it in Article I. But I'm open to contrary arguments.

Six for Quebec? Seems a bit high. Also, the names are liable to be very different here, depending on the exact method of conquest of Canada. Umbric Man has a TL going with 2 different Canadian states.

That's quite right, but for simplicity I was assuming here that the Canadian colonies simply join the bandwagon of the Revolution since 1775. As for Quebec, I was giving them as many representatives as New York.


I haven't read Big Tex's TL, but it seems to me very iffy. Do such states retain the minimum representation in the Senate and the House? Such a method violates the symmetry in the respective weights of the states in electing the President and in forming the Congress. I would have to imagine that such islands would be ammenable to forming groupings in order to form states. Furthermore, how much smaller is the smallest of them than Rhode Island?

Well, in his TL all the British North American colonies join the Revolution from the start, and so they lobby to enter the Union each island as a separate state. That means:

Original Colonies
1. Quebec
2. Nova Scotia
3. St. John's Island (OTL Prince Edward Island)
4. Newfoundland
5. Massachusets
6. New Hampshire
7. Rhode Island
8. Connecitcut
9. New York
10. Pennsylvania
11. Delaware
12. Maryland
13. Virginia
14. North Carolina
15. South Carolina
16. Georgia
17. East Florida
18. West Florida
19. New Jersey
20. The Bahamas
21. St. Lucia
22. St. Kitts
23. Jamaica
24. Honduras (British Honduras, OTL Belize)
25. Barbados
26. Nevis
27. St. Vincent and Grenadines
28. Montserrat
29. Antigua
30. Anguilla
31. Mosquito Coast (Includes the Bay Islands)
32. Virgin Islands
33. Cayman Islands
34. Dominica
35. Grenada
36. Rupert's Land
37. Tobago
38. Barbuda

Now, in any Ameriwank TL where the USA manage to include most of the above in the 1783 row, we have a problem about the undue influence of micro-states on the Electoral College (and the Senate, too, but that's probably unavoidable). Of course, that could be avoided if you could persuade the Caribbean island microstates to from groupings of properly-sized states, but what is more feasible, to do so or to make exceptions to state equality ? I dunno. But the problem exists in any TL where Ameriwank conquers the Caribbean before the Constitutional Convention.

Probably "charter".

And so charter will be.

Perhaps the following:

Congress shall have power...to charter agencies and institutions, including a National Bank, independent of the executive of the United States, provided that the purpose and activities of such agencies conform with the powers delegated by this Constitution to Congress and do not encroach upon the responsibilites of the Executive of the United States. The establishment of such institutions shall require a three-fifths vote in both Houses of Coungress. The charter of such institutions shall specify a term the institution. The principal officers of such institutions shall serve a term specified in the institution's charter, shall be selected by the Senate upon nomination by the President of the United States, and shall by removed by impeachment by the Congress of the United States, death, or find of permanent disability by a majority vote of the President, Vice-President, and Principal officers of the Executive Departments confirmed by Congress.

This requires, however, having a more detailed assessment of what the Executive is and how Executive Departments are created. Furthremore, it could very easily be taken to far: for example, is the Post Office such a Department?

Perhaps just this: "Congress shall have power to establish agencies and institutions, including a National Bank, in order to carry out its delegated powers. Chartering such institutions shall require a three-fifths vote of both Houses of Congress."

The latter wording seems more proper for the generally borad provisions of the Constitution. But I would really add some bulwark for the executive.

Hmm, what about a really general provision that covers both independent agencies and executive departments, and mandates co-decision between legislative and executive, so the political process can sort out what is what ?

"Congress shall have power to charter independent agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such agencies, institutions, or departments shall require a three-fifths vote of both Houses of Congress and the assent of the President. The charter of the independent agencies and institutions shall specify a term to them ".

Creating a pocket veto exception ensures that the responsibilities of the President cannot be easily usurped. However, it might even theoretically work without the absolute veto, just the ordinary veto, so:

"Congress shall have power to charter agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such agencies, institutions, or departments shall require a three-fifths vote of both Houses of Congress. The charter of the independent agencies and institutions shall specify a term to them".

What do you prefer ?

Anyway, the main difference between agencies and departments shall become that the former are not subject to the President's power of firing, only Congressional impeachment. But the wording about their nominees rather belong in Article II.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, heads of independent Agencies, Institutions, and Executive Departments, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Agencies, Institutions, or Departments.

The clausle about the Presidential power of firing shall clarify the nature of the independent agencies, thus striking their main difference with Executive Departments.

The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor. The principal officers of independent agencies and institutions shall serve a term specified in the charter of the agency or institution, except in cases of impeachment. Congress may by Law vest the removal of the other civil officers in such agencies and institutions, as they think proper, in the President, in the Courts of Law, or in the Heads of their Agencies or Institutions, when the officers' services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor .

Well, I suppose if Hamilton wanted it, we might allow it.

Yes, he wanted it as much as he wanted a protectionist tariff and a national bank. Both the tariff and the subsidies were equal parts of his master plan to create and American manufacturing industry. Check his "Report on Manufacturers" to Congress.

However, I think he was misguided in supposing it a useful tool of policy. It seems to me like an excuse for state interference and pork barrel.

Well, it would make some New Deal programs less contentious. Not all subsidies to industry need to be wasteful. In modern times, this would cover subsidies to research, too. This would also probably cover things like relief from natural disasters.

And we are putting a lot of anti-pork-barrel checks in this improved Constitution, anyway. :D


I kind of like the idea of the oath: it's really no different than having various Cabinet Secretaries testify before a Congressional Committee, when they also must take an oath. I suppose the difference is that you imainge Congress granting them a formal "seat"; I had merely envisioned floor privileges. Also, the phrase "request and require" I thought important to denote Congressional authority to compel testimony. It's the same phrase used in military orders.

Indeed I thought of this provision giving Cabinet Secretaries a full non-voting seat in the House, albeit limited to discussing things related to their Department. I envision them being able both to address the whole House, and testify before its Committees. That's why I thought of the oath as a bit odd, when they speak in the House. It seems to me a bit too humiliating for heads of Departments, to take an Oath before they can speak, even under a theroy of congressional supremacy. OTL, the oath is requires becasue they are assimilated to any other congressional testimony. What about we keep the whole "request and require" phrase, as a hallmark of Congressional authority, and we drop the oath ?

But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

A thought: should this provision cover the heads of independent agencies, too ?

If so, it becomes

But Congress may, by law, grant to the principal officer in each of the Independent Agencies and Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his agency or department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his agency or department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

I'd imagined that it simply became traditional. Furthermore, delivering "information on the State of the Union" and doing so in person to a Joint-Session of Congress are very different. The Constitution requires the former, not the latter. Since Wilson (and before Jefferson) the State of the Union was a floor speech, but it hasn't always been.

Hmm, I really doubt any such tradition would take root. I can see early Presidents protesting that they already took an Oath when entering the office, and that suffices, thank you very much.

Again, Cabinet officers do this all the time when they go before a committee. All they'd be saying is "I swear to tell the truth, the whole truth, and nothing but the truth."

That because OTL they don't have flooe privileges, so they have to be treated like any other congressional testimony. I assume that if the Congress really cares, they can write the Oath requirement in the legislation creating the non-voting seat and the floor privileges, but there is already going to be the "request and require" provision to establish congressional supremacy, why should Framers be so much worried that Secretaries are going to lie to Congress to write an Oath requirement in the very Constitution ?


I agree. This seems very strange. I'm not even 100% sure of the supermajority clause: it grants a lot of authority to the Executive. A "small government" President, like Jefferson, could easily force a shut down without a Congressional majority. In such an instance, it would be easier to impeach (but not to convict) a sitting President than to increase the budget over his (or his Cabinet officers) advice.

Three-fifths isn't such a difficult supermajority to achieve, if the Congress really cares about some program over the President's objections.

Plus who gets to request a budget for the "Independent Agencies"?

Good catch.

Now, about the budget of the Independent Agencies, the issue is whether we (and the Framers) think that as a rule there would be sufficient cooperation between these agencies and the President as to submit them to the Presidential power of fiscal restraint, or if it would be better to make them budgetary independent. Therefore, I propose you two wordings:

Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of agencies, institutions, and departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the United States.


OR

Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies and those of its institutions and agencies; or for the payment of claims against the United States.

No wording is perfect: the former creates the risk of the President purposefully trying to starve an agency he doesn't like by withholding his budget from Congress, which would require the supermajority to fund. The latter gives an easy-spending Congress a huge loophole to exploit. All in all, I would deem the former wording preferable. Make the agency's budget be requested by agency's head and transmitted through the President to Congress, and use the 3/5 supermajority in the case there is political conflict between the Agency and the President.
 
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Precedent and history are important, but direct incorporation strikes a nice balance between the prestige of history, given the load of the mostly unchanged text and the vitality shown by the new bits that are added or changed to keep up with changed circumstances. The simplicity and accessibility factors you cite are very important, and the continuing success of the Constitution is also linked to its vague text that leaves ample margin to adaptable interpretation. However, IMO that is due to three factors: the excellent skill of the Supreme Court to provide interpretation, reducing the need for actual changes, the complexity of the ratification process, which kills hasty changes, and the precedent of the original language. none of these factors would be changed by the lack of obsolete text showing that the original document once sanctioned slavery, or the framers picked a faulty method for electing the President or did not trust the people with electing their senators.

This even more so if we consider that our optimized const. would already incorporate the first 11-12 Amendments and the 27th in the original text, which almost halves their number, and its optimized nature would make a number of ATL ones unnecessary.

The more I think about it, the more I think that TTL the practice will be to insert changes of amendments in the text. This probably better satisfies the open and accessible criteria I brought up, but it's also heavily influenced by having the BoR in the Constitution.


Well, I suppose it could be done. Even if I notice that putting the BoR at the end of Article I, section 9 does create such a list, and the Constitution is short and simple-worded enough that finding the BoR list is simple enough whether you have them in their own article or a their own section of another Article.

Ok, I suppose it could be done, but where would you put such an article ? It would still end up in the middle of the text, I suppose after Article III or IV (it would be the new Article IV or V) since putting it at the very end after the amendment and ratification procedures would look rather odd.

Personally, I'd imagine that you have a new Article IV. Hence, you have Articles I-III concern the structure of the Constitution, Article IV dealing with the Bill of Rights, Article V dealing with the states and so on. Having a lengthy list in Article I Section IMO begins to distract from that section.

Argh. No, on this I radically disagree. Forbiddance of bill of attainder, ex post facto laws and discrimination against citizens of other states are as fundamental garantees of civil rights as freedom of speech and trial by jury. Ex post facto laws make criminal justice as much as tyrannical as an unfair trial or cruel punishments.

I quite agree. I hadn't mean to say they weren't rights. I had been using a loose criterion: in general, aspects of the Constitutions protecting rights sometimes simply protect a right (X shall not be infringed) but also sometimes protect a right by erecting a barrier to power (such as ex post facto laws). The later however also are guides to correct procedure of government: they don't stop the government from directly violating a right, but they stop the government from taking an action which would more often than not lead to such a violation. Plus just because we put something in Article IV / the incorporated Bill of Rights doesn't mean it's not still going to provide the same Constitutional protection. If anything else, I'd imagine the distinction to flow from the proposal that gets the BoR into the Constitution (smart framer X has a good list and it pretty much gets into the document per OTL).

I'd imagine that the guarantee of fair representation should go in the BoR, since its talking about citizens' rights.

Hmm, a stronger wording of the First ? This looks like very, very interesting. Please post what are you thinking of. I'm all ears and eyes. Just we have to be mindful that a really stronger protection here might well need to be reflected in Madison's Amendment on the states (and the clausle on territorial government).

How about this:

"Freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended."

By mentioning the phrase "freedom of conscience" it connects to the territorial rights we've already craft. Also, the very term "freedom of conscience" is about as close to a right of privacy as you're likely to find in a 1787 Constitution.

Anyway, if we start meddling with the BoR, I would have some adjustments of mine to propose. E.g. I would deem a rather important improvement to reword the 8th to read:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and excessive punishments inflicted.

Removing the "unusual" provision would close the current loophole that makes whatever abysmally unfair punishment constitutional as long as a sufficient numner of states mandates it.


What about "illberal" rather than the second excessive you propose / OTL's unusual?

However, setting up a new article for citizens' rights require going through the Const's text with a fine comb and picking up all the stuff that looks like a right. Tentatively, I propose the following as the content of the new article:

I'd actually argue for introducing a bit more structure on things. I'd argue that the following provisions should go in an expanded OTL Article IV / TTL Article V (dealing with states and admission of new ones). Furthermore, the text of OTL Article I, Section 10 should go there as well.


No State shall violate the equal rights of conscience nor the freedom of speech or of the press nor the trial by jury in criminal cases nor shall any state deprive a person of life, liberty, or property, without due process of law.


The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This Article should be organized thusly, 1) the rights of states, 2) the prohibitions on states, 3) the interaction of states, 4) the admission of new states.

Hmm, I don't have the actual book, but I'm presently reviewing the shorthand list his proposed changes on wikipedia. His proposals certainly deserve further reflection on my part, and further discussion from both of us, but indeed several ideas of him, while very useful would simply look too anachronistic in 1787.

Well, that's a whole separate discussion. On the whole, Sabato's proposals are crafted for the present, not the US in 1787. I would point out that the US had a national debt in 1787 (that amassed by the states under the Confederation to pay for the ARW and transfered to the US Gov't by Hamilton).

The most interesting changes are term limits, the guarantee of fair districts, and national Senators. Term limits I'll discuss later. Fair districts we've discussed. I like the concept of national Senators--Sabato actually has these a lifetime posisitions, with some provisions, governed by the retirement age for the Supreme Court.

The ability of non-US citizens to become President and the term limit for the Supreme Court probably work. The latter would certainly help to meet concerns of the day.

E.g. I've always thought that the original document could have been much improved by adding to the BoR the essential provisions of the XIV Amendment

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Now, to a degree we have already incorporated part of it (the due process) in the expanded form of Madison's Amendment, but it would be very nice if we could find a way to add the "privileges and immunities" and "equal process" garantees to the BoR (although the latter would likely need a rewording so that it does not apply to slaves).

Well, the big change made by the equal protection clause is to extend the privileges and immunities clause of Article IV. An equal protection clause that doesn't mention any person is liable to 1) directly introduce the term slave into the Constitution and 2) muddy the question of Indian rights. I think we're pretty far enough along already with adding new rights to the OTL, plus we've gone even further than the equal protection clause in stipulating certain rights to be protected by the states.

This assumes that their objections to the Constitution are still so substantial that they would still want some changes be made as the price of their ratification, even if the BoR concern is already satisfied. I'm quite doubtful of that. Which would such concerns and changes be ?

If you essentially grant the Bill of Rights, then you make the debate about ratification almost explicitly about accepting a bigger federal government and making the states submit to the authority of the states. This may push the debate to one side or the other. In large part though I'd image you're correct. It's just not a guarantee.


True, however, it's far from impossible for them to become aware of the danger of putting together a mutually-hostile P and VP in the same Administration. They might hearken to the experience of Ancient Greece and Rome. E.g. one of them might compare it to "putting Caesar and Silla in the same government".

This is all true, but I would point out that you can still envisage this kind of system, but also be mindful of the risk of electing mutually-hostile influential figures, even in the lack of a true party system. Creating independent scrutinies for P and VP still allows the selection of the next most popular and influential figure as VP, but ensures you don't elect two sworn enemies. And this may occur even in the lack of parties. You indeed sacrifice a bit of the opportunity to waste a vote on a favorite son, but you are garanteed a more efficient government, even if ytou lack parties. So I deem they would have chosen the separate ballot, if just the thought of the issue had occurred to them

A good point. It occurred to me as well that they Framers could pretty easily blunder into separate ballots.

You are right that such a system isn't very efficient. However, just like the Electoral College, it was a serious nod to states' rights.

Hmm, tentatively, how about we strike the House electing by states, and we create a double majority:

But in choosing the President, a quorum for this purpose shall consist of two-thirds of the whole number of Representatives from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.

A nice solution. I think it might also be nice if the House 1) also chose the VP and 2) in cases when the Presidency was disputed, chose even if there was a majority in the Electoral College. This means that in the case of a deadlock, the election can go to House and some kind of coalition deal can more readily be struck.

A nice wording. I suppose this would also be easily interpreted as to mandate districts roughly equal in size. Do you think it would also be strong enough as to mandate automatic registration of voters, and to forbid disenfranchisement of felons ?

Tentatively, IMO it looks more like a garantee on electoral fairness than a civil right, so I'd put it in Article I. But I'm open to contrary arguments.

Thanks. I think the strength of the passage would depend on the times: in the 18th century automatic registration would be absurd. By the 20th century, I'd imagine the broadness of the fairness guarantee could well encompass that.

As to placement, I think this should go in TTL Article IV, since it's essentially confirming voting rights. The language is also broad and reads more like a right (the method shall be fair) rather than a dictate of procedure.

Additionally, it occurred to me that we could further strengthen matters by including a new Congressional power:

"Congress shall have power to...uphold and enforce the rights, freedoms and guarantees stipulated by this Constitution and such other privileges as they may establish by law."

On the one hand, this immediately allows the Federal government to police state enforcement of rights, if they so chose. This might emerge from a desire to make sure all of these sundry people in Canada (and perhaps the Caribbean) act rightly, in the eyes of the Framers. However, it's also very hard to prevent such a power from implying Congress doesn't have the power to grant other lesser rights and/or protections; the part in italics is an attempt to prevent that. It would also be prevented by the OTL 10th Amendment, wherever incorporated in the Constitution, but I thought it an important point to clarify. I've also used the language to distinguish between the "rights, freedoms, and guarantees" of the Constitution and the "privileges" granted by Congress.

That's quite right, but for simplicity I was assuming here that the Canadian colonies simply join the bandwagon of the Revolution since 1775. As for Quebec, I was giving them as many representatives as New York.

Did NY and Quebec have similar populations at the time? That seems strange to me.

Well, in his TL all the British North American colonies join the Revolution from the start, and so they lobby to enter the Union each island as a separate state. That means:

Now, in any Ameriwank TL where the USA manage to include most of the above in the 1783 row, we have a problem about the undue influence of micro-states on the Electoral College (and the Senate, too, but that's probably unavoidable). Of course, that could be avoided if you could persuade the Caribbean island microstates to from groupings of properly-sized states, but what is more feasible, to do so or to make exceptions to state equality ? I dunno. But the problem exists in any TL where Ameriwank conquers the Caribbean before the Constitutional Convention.

Well, as I said earlier, I'd be interested to compare the population of those islands with Rhode Island. Furthermore, I'm fairly certain that many of them when governed by the British had some relationships and groupings already. I would imagine that you'd need to find a way around the problem at the Convention. It wouldn't be a bad idea for the islanders to form a single state (or two-three).

The latter wording seems more proper for the generally borad provisions of the Constitution. But I would really add some bulwark for the executive.

Hmm, what about a really general provision that covers both independent agencies and executive departments, and mandates co-decision between legislative and executive, so the political process can sort out what is what ?

"Congress shall have power to charter agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such institutions shall require a three-fifths vote of both Houses of Congress and the assent of the President".

Creating a pocket veto exception ensures that the responsibilities of the President cannot be easily usurped. However, it might even theoretically work without the absolute veto, just the ordinary veto, so:

"Congress shall have power to charter agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such institutions shall require a three-fifths vote of both Houses of Congress".

I suppose the latter. However, we've introduced so many instances where Congress votes by 3/5 majority, I fear that some one might read those instances as places not subject to Presidential veto, because they're not normal "laws"--as is the case with the Congress recommending Constitutional amendments.

Additionally, an important difference between agencies and departments is sometimes that the former's heads have specified terms (i.e. the FEC, the Fed) while Department heads serve until fired by the President / they resign. This would need to be in this provision.

Anyway, the main difference between agencies and departments shall become that the former are not subject to the President's power of firing.

Yes, a neat result of the clause you introduced previously.

Well, it would make some New Deal programs less contentious. Not all subsidies to industry need to be wasteful. In modern times, this would cover subsidies to research, too. This would also probably cover things like relief from natural disasters.

And we are putting a lot of anti-pork-barrel checks in this improved Constitution, anyway. :D

I suppose it might also make some of the tariff politics easier: you could have a lower tariff, with some modest subsidies and thus not affect some goods as much. However, you'd probably want to introduce some kind of clause to guarantee Congress couldn't grant subsidies in a preferential way among the states (i.e. every free state gets free money or vice versa).

Indeed I thought of this provision giving Cabinet Secretaries a full non-voting seat in the House, albeit limited to discussing things related to their Department. I envision them being able both to address the whole House, and testify before its Committees. That's why I thought of the oath as a bit odd, when they speak in the House. It seems to me a bit too humiliating for heads of Departments, to take an Oath before they can speak, even under a theroy of congressional supremacy. OTL, the oath is requires becasue they are assimilated to any other congressional testimony. What about we keep the whole "request and require" phrase, as a hallmark of Congressional authority, and we drop the oath ?

But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

A fair compromise.

Three-fifths isn't such a difficult supermajority to achieve, if the Congress really cares about some program over the President's objections.

It isn't difficult to achieve, but it will drastically increase the power of individual congressman and of small groupings of them. It will also make political parties harder to maintain. Imagine some version of Britain's Irish National Party holding the deciding vote. Also, think of how often the balance of power in the House or Senate is very, very slim.

Good catch. This opens a bigger question: who nominees the heads of the independent agencies. If we follow the OTL example, it's still the President, with the Senate's consent, but what differentiates them is that they are not subject to the President's power of removal (much like the federal judges). I assume we can follow the same model here, by adding

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, heads of Agencies, Institutions, and Executive Department, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Agencies, Institutions, or Departments.

The clausle about the Presidential power of firing does not purposefully mention independent agencies, thus striking their main difference with Executive Departments.

Seems good to me.

Now, about the budget of the Indenpedent Agencies, the issue is whether we (and the Framers) think that as a rule there would be sufficient cooperation between these agencies and the President as to submit them to the Presidential power of fiscal restraint, or if it would be better to make them budgetary independent. Therefore, I propose you two wordings:

Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of agencies, institutions, and departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the United States.


OR

Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies and those of its institutions and agencies; or for the payment of claims against the United States.

No wording is perfect: the former creates the risk of the President purposefully trying to starve an agency he doesn't like by withholding his budget from Congress, which would require the supermajority to fund. The latter gives an easy-spending Congress a huge loophole to exploit. All in all, I would deem the former wording preferable. Make the agency's budget be requested by agency's head and transmitted through the President to Congress, and use the 3/5 supermajority in the case there is political conflict between the Agency and the President.


This is part of what I see as the problems with the supermajority requirement. Not only can the President starve agencies if he controls "the opening bid" of their budgetary process, but the Congress can nibble away at the President's power if they control the budgetary process.

Because the starting point carries such an enhanced position under the supermajority rule, there'd be inherent tension either way. That tension would be vastly reduced without that provision.

As to which is more stable, I agree with your choice.
 
It's a slow day at work. And so, I give you a rough draft:

Black text is OTL
Red text is proposed
Brown text are changes taken from the Confederate Constitution
Blue text are changes taken from Madison's writings
Green text are changes introduced from OTL's 11-26th Amendments.
Italics denote text that was changed by an OTL Amedment, but that for some reason probably would remain as originally written. Usually these have to do with slavery.

And the bold titles are of course editorial aspects of this edition of the US Constitution; they aren't in any way part of the text.

BTW, a great site for info on the US Constitution: www.usconstitution.net


The <<OPTIMIZED>> Constitution of the United States

Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


Article. I. - The Legislative Branch

Section 1 - The Legislature
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2 - The House
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

[Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3 - The Senate
The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; (and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.)

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4 - Elections, Meetings
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall (be on the first Monday in January,) unless they shall by Law appoint a different Day. The term of Senators and Representatives shall commence_____________[the 20th Amendment not only clarified when terms started but also thereby clarified that the newly elected Congress judged the qualification of the incoming President].

Section 5 - Membership, Rules, Journals, Adjournment
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6 - Compensation and Seats for Cabinet Officers
(The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.) They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

Section 7 - Revenue Bills, Legislative Process, Presidential Veto
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. All bills for the approval of new states shall originate in the Senate; but the House of Representatives may propose of concur with Amendments as on other Bills.

Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.


Section 8 - Powers of Congress


The Congress shall have Power:
  • To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  • To borrow money on the credit of the United States;
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  • To provide for the common defence and promote the general Welfare, by granting for limited Times Bounties to useful Commerce, Manufacturing, and Agriculture;
  • To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • To coin Money, emit Bills of Credit, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  • To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  • To establish Post Offices and Post Roads;
  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  • To constitute Tribunals inferior to the supreme Court;
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
  • To charter agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such institutions shall require a three-fifths vote of both Houses of Congress;
  • To uphold and enforce the rights, freedoms and guarantees stipulated by this Constitution and such other privileges as they may establish by law; And
  • To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Section 9 - Limits on Congress
Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of agencies, institutions, and departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the United States.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. [moved]

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.)

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.


Article. II. - The Executive Branch

Section 1 - The President
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, together with the Vice-President chosen for the same Term. The term of the President and Vice-President shall commence at noon of the fourth day of March.

Section 2 - The Election of the President and Vice-President.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted, referring judgment on the returns to a majority vote of both Congress in joint session.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, a quorum for this purpose shall consist of two-thirds of the whole number of Representatives from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.

These italics potentially changed if VP selection automatically granted to House upon deadlocked selection of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.


If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 3 - Disability and Succession
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a three-fifths vote of both Houses of Congress.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4 - Qualifications, Compensation, and Oath of Office
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. And no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 3 - Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, heads of Agencies, Institutions, and Executive Department, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Agencies, Institutions, or Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session; but no person rejected by the Senate shall be reappointed to the same office during their ensuing recess.

Section 4 - State of the Union, Convening Congress
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 5 - Disqualification
The President, Vice President and judges of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ["all civil officers of the US" removed].

The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other officers of the Executive Departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.

The principal officers of other Agencies and Institutions established under the laws of the United states shall serve for terms specified in the charter of their respective institution and shall be removed from Office by impeachment or finding of disability by majority vote of Congress.


Article III. - The Judicial Branch

Section 1 - Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State where the State is plaintiff;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects; but no State shall be sued by a citizen or subject of any foreign state.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 - Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


Article IV - The Bill of Rights

1 - Freedom of Religion, Press, Expression.
Freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended.

2 - Electoral Fairness Guaranteed.
The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices and should in all cases endeavor to express the free choice of the respective community of electors.

3 - Right to Bear Arms.
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. [note: two commas deleted]

4 - Ban on Aristocracy.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

5 - Freedom from abritary laws and arrest.
That no person under the United States should come to harm by result of abritary or otherwise tyrannical law, no Bill of Attainder or ex post facto Law shall ever be passed. The right of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

6 - Quartering of Soldiers.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

7 - Search and Seizure. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

8 - Trial and Punishment, Compensation for Takings.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

9 - Right to Speedy Trial, Confrontation of Witnesses.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

10 - Trial by Jury in Civil Cases.
In Suits at common law, where the value in controversy shall exceed an amount not less than twenty dollars and determined by Congress by three fifth vote, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

11 - Cruel and Illiberal Punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or otherwise illiberal punishments inflicted.

12 - Construction of Constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [language of OTL 9th and 10th consolidated]



Article V. - The States
Section 1 - Federal Guarantees and Supremacy
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. [religious test clause moved]

The Rights protected by the constitutions of the several States, including their domestic institutions and privileges, are not to be infringed by this Constitution or any law of the United States, provided that no State shall violate the equal rights of conscience nor the freedom of speech or of the press nor the trial by jury in criminal cases nor shall any State deprive a person of life, liberty, or property, without due process of law.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 - Powers prohibited of States
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Section 3 - Citizens of states
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

(No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.)

Section 4 - New States and Territories
New States may be admitted into this Union by a majority vote of both Houses of Congress. The same vote shall also be required for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government.


Article. VI. - Amendment

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate; and that such concurrence of the states shall occur within seven years of the submission of the proposed Amendments to the states by either Congress or Convention, as certified by the Supreme Court.

[Note: OTL Article VI has been placed throughout the text]

Article. VII. - Ratification

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names.
 
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Also, Zod, did you see my list of potential defects? It's the 4th post in this thread, I think. With posts of such great length, it's easy to get confused.
 

General Zod

Banned
Looks quite fine for the most part. I only make some little additions and tweaks.

Black text is OTL
Red text is proposed
Brown text are changes taken from the Confederate Constitution
Blue text are changes taken from Madison's writings
Green text are changes introduced from OTL's 11-27th Amendments.
Italics denote text that was changed by an OTL Amedment, but that for some reason probably would remain as originally written. Usually these have to do with slavery.


The <<OPTIMIZED>> Constitution of the United States

Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.


Article. I. - The Legislative Branch

Section 1 - The Legislature
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 2 - The House
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

[Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3 - The Senate
The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; (and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.)

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4 - Elections, Meetings
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall (be on the first Monday in January,) unless they shall by Law appoint a different Day. The term of Senators and Representatives shall commence_____________[the 20th Amendment not only clarified when terms started but also thereby clarified that the newly elected Congress judged the qualification of the incoming President].

Section 5 - Membership, Rules, Journals, Adjournment
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two-thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6 - Compensation
The Senators and Representatives shall receive a Compensation for their Services, to beascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

But Congress may, by law, grant to the principal officer in each of the Executive Departments and other Agencies and Institutions established under the laws of the United states a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department or agency, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

Section 7 - Revenue Bills, Legislative Process, Presidential Veto
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. All bills for the approval of new states shall originate in the Senate; but the House of Representatives may propose of concur with Amendments as on other Bills.

Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.


Section 8 - Powers of Congress






The Congress shall have Power:
  • To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  • To borrow money on the credit of the United States;
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  • To provide for the common defence and promote the general Welfare, by granting for limited Times Bounties to useful Commerce, Manufacturing, and Agriculture; but all Bounties shall be uniform among elegible recipients throughout the United States.
  • To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • To coin Money, emit Bills of Credit, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  • To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  • To establish Post Offices and Post Roads;
  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  • To constitute Tribunals inferior to the supreme Court;
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;
  • To charter agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such institutions shall require a three-fifths vote of both Houses of Congress;
  • To uphold and enforce the rights, freedoms and guarantees stipulated by this Constitution and such other privileges as they may establish by law, according to their other powers; And
  • To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Section 9 - Limits on Congress
Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of agencies, institutions, and departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the United States.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. [moved]

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.)

No Tax or Duty shall be laid on Articles exported from any State except by a vote of two-thirds of both Houses.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.


Article. II. - The Executive Branch

Section 1 - The President
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, together with the Vice-President chosen for the same Term. The term of the President and Vice-President shall commence at noon of the fourth day of March.

Section 2 - The Election of the President and Vice-President.
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted, referring judgment on the returns to a majority vote of both Congress in joint session.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, a quorum for this purpose shall consist of two-thirds of the whole number of Representatives from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.

These italics potentially changed if VP selection automatically granted to House upon deadlocked selection of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.


If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 3 - Disability and Succession
In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a three-fifths vote of both Houses of Congress.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Section 4 - Qualifications, Compensation, and Oath of Office
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States. And no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section 3 - Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States or any State, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, heads of Agencies, Institutions, and Executive Department, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Agencies, Institutions, or Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session; but no person rejected by the Senate shall be reappointed to the same office during their ensuing recess.

Section 4 - State of the Union, Convening Congress
He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section 5 - Disqualification
The President, Vice President and judges of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. ["all civil officers of the US" removed].

The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other officers of the Executive Departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.

The principal officers of other Agencies and Institutions established under the laws of the United states shall serve for terms specified in the charter of their respective institution and shall be removed from Office by impeachment or finding of disability by majority vote of Congress. Congress may by Law vest the removal of the other civil officers in such agencies and institutions, in the Heads of their Agencies or Institutions, or other Authorities, as they think proper, when the officers' services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor .



Article III. - The Judicial Branch

Section 1 - Judicial powers
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State where the State is plaintiff;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects; but no State shall be sued by a citizen or subject of any foreign state.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section 3 - Treason
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


Article IV - The Bill of Rights

1 - Freedom of Religion, Press, Expression.
Freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended.

2 - Electoral Fairness Guaranteed.
The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices and should in all cases endeavor to express the free choice of the respective community of electors.


3 - Right to Bear Arms.
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. [note: two commas deleted]

4 - Ban on Aristocracy.
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

5 - Freedom from arbitary laws and arrest.
That no person under the United States should come to harm by result of arbitary or otherwise tyrannical law, no Bill of Attainder or ex post facto Law shall ever be passed. The right of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

6 - Quartering of Soldiers.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

7 - Search and Seizure. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

8 - Trial and Punishment, Compensation for Takings.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

9 - Right to Speedy Trial, Confrontation of Witnesses.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

10 - Trial by Jury in Civil Cases.
In Suits at common law, where the value in controversy shall exceed an amount not less than twenty dollars and determined by Congress by three fifth vote, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

11 - Cruel, Excessive, and Illiberal Punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel, excessive, or otherwise illiberal punishments inflicted.

12 - Construction of Constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [language of OTL 9th and 10th consolidated]



Article V. - The States
Section 1 - Federal Guarantees and Supremacy
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution. [religious test clause moved]

The Rights protected by the constitutions of the several States, including their domestic institutions and privileges, are not to be infringed by this Constitution or any law of the United States, provided that no State shall violate the equal rights of conscience nor the freedom of speech or of the press nor the trial by jury in criminal cases nor shall any State deprive a person of life, liberty, or property, without due process of law.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 - Powers prohibited of States
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Section 3 - Citizens of states
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

(No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.)

Section 4 - New States and Territories
New States may be admitted into this Union by a majority vote of both Houses of Congress. The same vote shall also be required for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law.


The Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several Sates; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into this Union.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government.


Article. VI. - Amendment

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate; and that such concurrence of the states shall occur within seven years of the submission of the proposed Amendments to the states by either Congress or Convention, or the extension of the same term by a three-fifths vote of both Houses of Congress, as certified by the Supreme Court.

[Note: OTL Article VI has been placed throughout the text]

Article. VII. - Ratification

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth. In Witness whereof We have hereunto subscribed our Names.
 
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General Zod

Banned
Note: this answer is somewhat obsolete by your posting of the draft and my own tweaks to it. I only keep it so you can check on my arguments for some changes and discussion of further points.

How about this:

"Freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended."

Almost perfect, but I'd rather prefer freedom of conscience to get explicit protection. What about:

"No establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended."

This will give ampler space to the Supreme Court to interpret in favor of a non-religious freedom of conscience (thus giving full protection to rights like conscentious objection or privacy).

By mentioning the phrase "freedom of conscience" it connects to the territorial rights we've already craft. Also, the very term "freedom of conscience" is about as close to a right of privacy as you're likely to find in a 1787 Constitution.

Indeed, well done.

What about "illberal" rather than the second excessive you propose / OTL's unusual?

Hmm, what about "cruel, excessive, or illiberal punishments" ? (I do care a lot about a direct standard of proportionality in criminal justice being put in the BoR, since IMO this is one of most glaring constitutional loopholes about civil rights).

I would point out that the US had a national debt in 1787 (that amassed by the states under the Confederation to pay for the ARW and transfered to the US Gov't by Hamilton).

You are quite right, but I meant a budget deficit. which is what OTL proposed balanced budget amendments address, IIRC.

The most interesting changes are term limits, the guarantee of fair districts, and national Senators. Term limits I'll discuss later. Fair districts we've discussed. I like the concept of national Senators--Sabato actually has these a lifetime posisitions, with some provisions, governed by the retirement age for the Supreme Court.

Our fair representation clausle indeed covers districts nicely. I think lifetime ex-POTUS or ex-VPOTUS Senators might theoretically be doable, because the Framers would be highly mindful of the Roman Senate. It would be more than a bit controversial (beacue it would also call the House of Lords and the College of Cardinals to mind) but it might be doable.

Term limits we should indeed tackle last, since more so than anything else we discussed so far, it would have the potential for significant historical changes very soon in the TLs.

The ability of non-US citizens to become President and the term limit for the Supreme Court probably work. The latter would certainly help to meet concerns of the day.

Well, they are relatively simple to implement and require little exceptional foresight on Framers' part. Only it is necessary that both POTUS and Congress, and Supreme Court and federal judges, take comparable term limits, to keep things balanced. OK, a couple more things to put in our drafts. Do we use the actual limits Sabato suggested ? I don't have the book.


Well, the big change made by the equal protection clause is to extend the privileges and immunities clause of Article IV. An equal protection clause that doesn't mention any person is liable to 1) directly introduce the term slave into the Constitution and 2) muddy the question of Indian rights. I think we're pretty far enough along already with adding new rights to the OTL, plus we've gone even further than the equal protection clause in stipulating certain rights to be protected by the states.

You are probably right. Our reworked Madison's clausle pretty much makes the full extension of the BoR to states straightforward anyway.


If you essentially grant the Bill of Rights, then you make the debate about ratification almost explicitly about accepting a bigger federal government and making the states submit to the authority of the states. This may push the debate to one side or the other. In large part though I'd image you're correct. It's just not a guarantee.

Nothing is. But I feel fairly confident in assuming that if you steal the Anti-federalists main argument about a tyrannical government, you weaken their appeal much more than not.

A good point. It occurred to me as well that they Framers could pretty easily blunder into separate ballots.

Indeed. Differently from the even more technical XX and XXV Amendment, which would essentially require the test of experience. Or better, all the nice stuff of the XXV, which really covers some rather big omissions of the Constitution, is something that they could have easily come on their own, if only they had purposefully meant for the President to become the all-important supreme center of decision of a global power it evolved into. Which we have assumed they only rather partially meant.

OTOH, since we are assuming this is going to be an "improved" constitution, but for typical use in Ameriwank TLs, too, it is quite possible that the equivalent of the XXV (including the parts of the XX that cover the Presidential selection, too) will be put in the Constitution rather more swiftly than OTL, the first time a POTUS or VPOTUS dies or gets a lingering disease or disability in office. A more quicker and extensive rise of the USA to great/global power status will make the rise of the Presidency to supremacy all the more swifter, and the vital necessity to have Presidents in top-notch conditions.

A nice solution. I think it might also be nice if the House 1) also chose the VP

I suppose it would be nice, but wouldn't some kind of political balance between Houses suggest throwing VP slection to the Senate ? Just a thought, I see reasons for going either way. In practice, putting everything in the same House much reduces the risk of contrasting selections made by Houses with different majorities, so it would be much preferable, I dunno if this kind of concern would be clear to the Framers enough to let them be loathe to appease the Senate throwing VP selection to them. In short, I'm all for your suggestion, if we can find a good reason to mollify the Senate's and states' righters' pride.

and 2) in cases when the Presidency was disputed, chose even if there was a majority in the Electoral College. This means that in the case of a deadlock, the election can go to House and some kind of coalition deal can more readily be struck.

Please explain what do you mean here. How can the Presidency be disputed, if there's a majority in the Electoral College ?

Also, are we letting the Electoral College as it is ? It's a rather faulty mechanism.

Thanks. I think the strength of the passage would depend on the times: in the 18th century automatic registration would be absurd. By the 20th century, I'd imagine the broadness of the fairness guarantee could well encompass that.

As to placement, I think this should go in TTL Article IV, since it's essentially confirming voting rights. The language is also broad and reads more like a right (the method shall be fair) rather than a dictate of procedure.

OK, in agreement about both points.

Additionally, it occurred to me that we could further strengthen matters by including a new Congressional power:

"Congress shall have power to...uphold and enforce the rights, freedoms and guarantees stipulated by this Constitution and such other privileges as they may establish by law."

On the one hand, this immediately allows the Federal government to police state enforcement of rights, if they so chose. This might emerge from a desire to make sure all of these sundry people in Canada (and perhaps the Caribbean) act rightly, in the eyes of the Framers. However, it's also very hard to prevent such a power from implying Congress doesn't have the power to grant other lesser rights and/or protections; the part in italics is an attempt to prevent that. It would also be prevented by the OTL 10th Amendment, wherever incorporated in the Constitution, but I thought it an important point to clarify. I've also used the language to distinguish between the "rights, freedoms, and guarantees" of the Constitution and the "privileges" granted by Congress.

Oh, Oh, a broad standing Congressional power of enforcement. I like it enormously. How could I not have thought of it ? Good catch. Only, in order to ppease the states' rights champions, I'd slightly reword it:

"Congress shall have power to...uphold and enforce the rights, freedoms and guarantees stipulated by this Constitution and such other privileges as they may establish by law according to their other powers."

Which means just the same thing, but looks less intrusive to states' rights. ;)

Did NY and Quebec have similar populations at the time? That seems strange to me.

Well, as I said earlier, I'd be interested to compare the population of those islands with Rhode Island.

Well, admittedly I was relying on someone else's work here.

Furthermore, I'm fairly certain that many of them when governed by the British had some relationships and groupings already. I would imagine that you'd need to find a way around the problem at the Convention. It wouldn't be a bad idea for the islanders to form a single state (or two-three).

I suppose that would be the smoothest solution. But they would still try to enter as separate isles, if they can pull off. It remains to be seen if they are more amenable to accept merger statehood, or an exception to equality of state representation.

I suppose the latter. However, we've introduced so many instances where Congress votes by 3/5 majority, I fear that some one might read those instances as places not subject to Presidential veto, because they're not normal "laws"--as is the case with the Congress recommending Constitutional amendments.

Well, the case for the amendments is strenghtened by the fact it's already a 2/3 majority. But the Constitution is otherwise very clear on this: "Every Bill (...) Order, Resolution, or Vote" is subject to the veto.

Additionally, an important difference between agencies and departments is sometimes that the former's heads have specified terms (i.e. the FEC, the Fed) while Department heads serve until fired by the President / they resign. This would need to be in this provision.

Yes. And as you may notice I've created a provision for the removal of inferior officers in independent agencies, too.

Congress may by Law vest the removal of the other civil officers in such agencies and institutions, in the Heads of their Agencies or Institutions, or other Authorities, as they think proper, when the officers' services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor .

I suppose it might also make some of the tariff politics easier: you could have a lower tariff, with some modest subsidies and thus not affect some goods as much. However, you'd probably want to introduce some kind of clause to guarantee Congress couldn't grant subsidies in a preferential way among the states (i.e. every free state gets free money or vice versa).

That's probably good. What about:

To provide for the common defence and promote the general Welfare, by granting for limited Times Bounties to useful Commerce, Manufacturing, and Agriculture; but all Bounties shall be uniform among elegible recipients throughout the United States.

It isn't difficult to achieve, but it will drastically increase the power of individual congressman and of small groupings of them. It will also make political parties harder to maintain. Imagine some version of Britain's Irish National Party holding the deciding vote. Also, think of how often the balance of power in the House or Senate is very, very slim.

True, but at least as it concerns Ameriwank TLs, there's going to be a rather larger House or Senate, which will reduce the influence of small groupings somewhat.

Also another couple bits I've salvaged from the Confederate Consitution:

the possibility to use export taxes in extreme circumstances:

No Tax or Duty shall be laid on Articles exported from any State except by a vote of two-thirds of both Houses.

and this provision on territorial government that IMO complements nicely the territorial government guidelines we concocted on our own:


"New States may be admitted into this Union by a majority vote of both Houses of Congress. The same vote shall also be required for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law.

The Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several Sates; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into this Union.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government."



I've also checked your adding of the seven-years limit for the ratification of Amendments. While I agree that leaving half-ratified Amendments lingering forever and a day is indeed rather dangerous, I also deem that an absolute 7-year limit is far too rigid, and providing the means for the extension of the term by Congress should be allowed.

Hence:

and that such concurrence of the states shall occur within seven years of the submission of the proposed Amendments to the states by either Congress or Convention, or the extension of the same term by a three-fifths vote of both Houses of Congress, as certified by the Supreme Court.

Another little concern of mine. I've always felt a glaring omission that the President, as supreme magistrate, cannot concede a pardon for offenses against the States. Just like the judicial review power of the US Supreme Court is set above and in addition to the one of state Supreme Courts, so the pardon power of the President should be set up above and in addition to the one of any Governor.

and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States or any State, except in Cases of Impeachment
 
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Note: this answer is somewhat obsolete by your posting of the draft and my own tweaks to it. I only keep it so you can check on my arguments for some changes and discussion of further points.

I'll keep these comments relatively brief and then start a new post about issues we haven't dealt with (like term limits).

Almost perfect, but I'd rather prefer freedom of conscience to get explicit protection. What about:

"No establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended."

This will give ampler space to the Supreme Court to interpret in favor of a non-religious freedom of conscience (thus giving full protection to rights like conscentious objection or privacy).

Well, the wording you propose lumps in "equal rights of conscience" with all the religious freedoms. If you do so, then conscience will probably be read with a narrow meaning: having the phrase introduce both religious and other rights however suggests that it has a broader meaning. Indeed, the very problem with a "right to privacy" is that the phrase itself is to broad, requiring legal defintion and precedent. It can apply to issues of conscience -- such as an abortion -- but it can aslo apply to inviolability of the home and personal correspondence. It's actually quite hard to supplement the language already given by the constitution without creating infeasible legal restrictions.

However, I have two ideas that supplement my phrasing thusly:
Thefreedom conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended. And so too the privacy of the public post and of the home shall not be impugned, but upon oath or affirmation and by due process of law. In all cases and instances where the public safety be not endangered nor the rights of other persons be not threatened shall the free exercise of conscience commannd the utmost respect and deference under the laws of the United States.

This does a few things. Firstly, the addition of several clauses all acting in concert makes a good case to read this section as defending several different kinds of rights of conscience. Secondly, the specific privacy of the post is actually something that will be useful, since it was something that 1) southerners particularly feared and 2) Hamilton routinely abused.

I'm not sure, however, of including the last cluase "In all cases and instances" but it does suggest a broad range of other rights of conscience not defined in the preceeding protections. Accordingly, you might well see higher standard of proof develop than simple "probable cause" in some cases of extracting a warrant.

Hmm, what about "cruel, excessive, or illiberal punishments" ? (I do care a lot about a direct standard of proportionality in criminal justice being put in the BoR, since IMO this is one of most glaring constitutional loopholes about civil rights).

Quite elegant fix, I think, and an elegant turn of phrase.

Our fair representation clausle indeed covers districts nicely. I think lifetime ex-POTUS or ex-VPOTUS Senators might theoretically be doable, because the Framers would be highly mindful of the Roman Senate. It would be more than a bit controversial (beacue it would also call the House of Lords and the College of Cardinals to mind) but it might be doable.

It would be very controversial, given the precedents you cite. It has more of a burden in the present context, since Sabato points out that this would make them accountable to all the Senate ethics rules. It also violates the equality of Senate represenation (Sabato is okay with that because he proposes to modify it already). Overall, we might simply allow Congress a broader power to grant non-voting, advisory seats, as they do to Cabinet officers:

But Congress may, by law, grant to the principal officer in each of the Executive Departments and other Agencies and Institutions established under the laws of the United states as well as such other persons as they may judge usefull, including former Presidents and Vice-Presidents of the United States in good standing...

Alternatively, these seats might require a confirmation vote of some kind. It is also less important in an age where, as you note, the POTUS is not the hyperpower, globe-trotting person he has become in the 20th Century.

Indeed. Differently from the even more technical XX and XXV Amendment, which would essentially require the test of experience. Or better, all the nice stuff of the XXV, which really covers some rather big omissions of the Constitution, is something that they could have easily come on their own, if only they had purposefully meant for the President to become the all-important supreme center of decision of a global power it evolved into. Which we have assumed they only rather partially meant.

OTOH, since we are assuming this is going to be an "improved" constitution, but for typical use in Ameriwank TLs, too, it is quite possible that the equivalent of the XXV (including the parts of the XX that cover the Presidential selection, too) will be put in the Constitution rather more swiftly than OTL, the first time a POTUS or VPOTUS dies or gets a lingering disease or disability in office. A more quicker and extensive rise of the USA to great/global power status will make the rise of the Presidency to supremacy all the more swifter, and the vital necessity to have Presidents in top-notch conditions.

The holes addressed by the 20th and 25th Amendments can be pretty big, at times. The replacement of a VPOTUS is particularly tricky (and seems to come up a lot in AH). I do think though that some of these passages may need to be reworked and compressed, given 18th century time horizons.

Please explain what do you mean here. How can the Presidency be disputed, if there's a majority in the Electoral College ?

I meant that if a candidate for President lacks a clear (and confirmed) majority of votes in the Electoral College, then Congress selects both the Vice-President and the President, even if there is a clear electoral winner for the Vice-Presidency. With a clear conception of ticket voting, it doesn't seem like this would happen, but in 1824 precisely that happened: Calhoun was clearly VP, but the Presidency was deadlocked -- a testament to the political chaos of that year caused by the uncertain nature of the political parties at the time. In our case it explicitly allows Congress to form fusion administrations.

I suppose it would be nice, but wouldn't some kind of political balance between Houses suggest throwing VP slection to the Senate ? Just a thought, I see reasons for going either way. In practice, putting everything in the same House much reduces the risk of contrasting selections made by Houses with different majorities, so it would be much preferable, I dunno if this kind of concern would be clear to the Framers enough to let them be loathe to appease the Senate throwing VP selection to them. In short, I'm all for your suggestion, if we can find a good reason to mollify the Senate's and states' righters' pride.

One way would be to have the Senate and House vote in joint session as a single body (with explicit provision that this be the only time they are allowed to do so). When so assembled, they are exactly the numerical composition of the Electoral College (since before granting DC votes, that's how the EC is calculated). The same provision you outlined would apply to this body, that is a majority of votes and a majority of states -- this is actually a higher threshold than in the EC itself, thus mandating compromise.

I would point out, however, that there's an equal argument to engineer a situation where the VP becomes a separate role in and of itself, like the lieutenant governor of many states, in which it's completely feasible to allow a VP of a different party, as is the practice in many states. Because of the example of Jefferson and Adams and because the VP was denied any power as President of the Senate (by Senate rules and because the First Senate didn't like John Adams), the VP's main function is to be the "spare" President. I would argue that such an arrangement is not necessarily less efficient than a single ticket, it simply results in a non-unitary executive. We've already introduced something of that with Congress' power to create independent agencies. Nevertheless, it's a more substantial departure.

Also, are we letting the Electoral College as it is ? It's a rather faulty mechanism.

Well, if you highlight the fact that Congress gets to judge the validity of the electoral votes (which the OTL Constitution leaves very vague) and if you provide a more predicatable means to solve a deadlock, then I would disagree.

Nevertheless, in the context of the 18th and 19th centuries, it's quite relevant: many states had widely varying practice regarding presidential selection. South Carolina didn't have public election for electors for the Presidency until after the Civil War, IIRC.

Furthermore, the EC does 1) increase the likelihood of an emergence of a fully national two party system, making TTL's incorporation of more land easier by providing incentive to political absorption and 2) isolate electoral disputes to specific states.

Additionally, with a larger House of Reps than we currently have, the less likely the EC returns a differeing result from the popular vote.


"Congress shall have power to...uphold and enforce the rights, freedoms and guarantees stipulated by this Constitution and such other privileges as they may establish by law according to their other powers."

Which means just the same thing, but looks less intrusive to states' rights. ;)

A good change.


Well, the case for the amendments is strenghtened by the fact it's already a 2/3 majority. But the Constitution is otherwise very clear on this: "Every Bill (...) Order, Resolution, or Vote" is subject to the veto.

I had forgotten that part. Oops.

Yes. And as you may notice I've created a provision for the removal of inferior officers in independent agencies, too.

Congress may by Law vest the removal of the other civil officers in such agencies and institutions, in the Heads of their Agencies or Institutions, or other Authorities, as they think proper, when the officers' services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor .

That's fine, but who gets to remove the Heads of Independent Agencies and for what?

Also, since this effectively creates protection for a civil service, should we provide a Constitutional power for Congress to create a Civil Service exam?

That's probably good. What about:

To provide for the common defence and promote the general Welfare, by granting for limited Times Bounties to useful Commerce, Manufacturing, and Agriculture; but all Bounties shall be uniform among elegible recipients throughout the United States.

Sounds good, though as you pointed out it would be otherwise covered in the blanket provision to this effect in Section 9.

Also another couple bits I've salvaged from the Confederate Consitution:

the possibility to use export taxes in extreme circumstances:

No Tax or Duty shall be laid on Articles exported from any State except by a vote of two-thirds of both Houses.

Well, it's always nice to have the option, but why would an export tariff be a good policy? Plus, it's another encroachement on states' rights. We probably have enough of those already. :rolleyes:

and this provision on territorial government that IMO complements nicely the territorial government guidelines we concocted on our own:

"New States may be admitted into this Union by a majority vote of both Houses of Congress. The same vote shall also be required for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law.

The Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several Sates; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into this Union.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government."

Well, just adding it to ours seems repetitive to me. It does suggest some better phrasing though:

"The Congress shall have Power to dispose of, acquire, and make all needful rules and regulations for the Territory or other Property belonging to the United States, lying without the limits of the several Sates*, provided that no such rule or regulation shall infringe upon the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rule or regulation deprive a person** of life, liberty, or property, without due process of law.***

New States may be admitted into this Union by a majority vote of both Houses of Congress, either from the territory of the United States or by the inclusion, upon application, of foreign republics and parts thereof. The same vote shall also be sufficient for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government."

*Include this phrase might substanitally limit the ability of the Federal government to control federal property within established states, which includes things like naval and army bases. Probably it shouldn't be included.

**It occurs to me this might grant Native Americans a lot more Constitutional protection than they might otherwise have. Probably a good thing in the long run, I suppose.

***Might we want to expressly incorporate a requirement that Congress only create territorial governments in so far is they accord with and respond to the "authority which follows from the consent of the governed." It also occurs to me that the current phrasing isn't really what we intended. All the provisions we list flow from the Bill of Rights, which would limit Congress in all of these instances as much as it would in any other. Rather what we mean to do is tie Congress' hands in meddling with the internal constitutions and popular sovereignty of established territoires.



I've also checked your adding of the seven-years limit for the ratification of Amendments. While I agree that leaving half-ratified Amendments lingering forever and a day is indeed rather dangerous, I also deem that an absolute 7-year limit is far too rigid, and providing the means for the extension of the term by Congress should be allowed.

Hence:

and that such concurrence of the states shall occur within seven years of the submission of the proposed Amendments to the states by either Congress or Convention, or the extension of the same term by a three-fifths vote of both Houses of Congress, as certified by the Supreme Court.

Seems reasonable.

Another little concern of mine. I've always felt a glaring omission that the President, as supreme magistrate, cannot concede a pardon for offenses against the States. Just like the judicial review power of the US Supreme Court is set above and in addition to the one of state Supreme Courts, so the pardon power of the President should be set up above and in addition to the one of any Governor.

and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States or any State, except in Cases of Impeachment

I disagree.

Firstly, OTL the Supreme Court's power of judicial review only comes into play when there's an issue requiring federal courts; the SCOTUS doesn't have plenary power of judicial review but only in so far as a particular case arises out of Federal law. OTL the scope of federal law is very large so in practice the SCOTUS has wide powers of review.

Secondly, the power of pardon and reprieve really needs to be paired closely with power over prosecution. The President does not have power over the prosecution of State crimes, nor should he IMO. Furthermore, the judicial process at a local level is one of the core responsbilities left up to the states. We've already begun by expressly stating a Bill of Rights that will have cause to expressly apply against the states from the start.

Thirdly, if you're trying to create a more efficient Federal government to allow the Ameriwank to procede, it would seem to me that the last thing you'd want is to allow the President to have power to meddle in such a small issue.
 
Term Limits

[A separate post. It seems to me like it might be easier to deal with more changes on an issue by issue basis.]

1) Sabato unfortunately dodges the issue in his book. His primary concern is to evaluate the effect of term limits. His analysis suggests that frequently they don't have the effect intended, because they mean that legislative expereince is lost. However, neither do they have great deleterious effect either. They seem to have little effect, in practice. However, polls and a large body of opinion seems to suggest that the American public likes the idea. The Framers' principle of "frequent rotation in office" supports the notion as well.

2) I agree with you that the limit should be mostly about the number of consecutive terms that may be served, not on the total number.

3) I'd imagine that the limits need to be real (particularly for the President) but at the same time long enough to permit substantial influence.

What about this:

No more than 10 years in any 12 for Presidents
No more than 12 years in any 18 for Senators
No more than 14 years in any 20 for Representatives

18 year, non-reeligible term for members of the federal judiciary

The style is also that used by the Articles of Confederation (which stipulated that members of Congress couldn't serve more than three years in any six).

4) The notion of a six year non reeligble term might also work for Presidents, but IMO it introduces a very important difference: the President doesn't ever run for a second term. This does a lot to change the nature of the Presidency and to increase the importance of Congress as the more political of the two branches. It may very well change the nature of political parties.

To avoid losing any notion of validating a President's policies by re-election is the reason that Sabato introduces a fusion concept: the President's default term is 6 years, but in the 5th year he can run for a 2 year extension in an plebiscite (up or down vote). If he wins, he serves a total of 8 years; if not, than a new primary process begins to elect his successor. Nevertheless, such a system is more suited to the 21st Century US than for the Framers to invent in the 18th.
 
Also, there have been 425+ views of this thread. I figured not many people would participate given the wankish purpose and the arcane details, but no other posters but me and Zod? Someone has to disagree with us.

Let fly with your criticism! Let the slings and arrows of outrageous comments purify our alt-Constitution in a wave of glorious witticism and incessant word-play!
 

General Zod

Banned
Well, the wording you propose lumps in "equal rights of conscience" with all the religious freedoms. If you do so, then conscience will probably be read with a narrow meaning: having the phrase introduce both religious and other rights however suggests that it has a broader meaning. Indeed, the very problem with a "right to privacy" is that the phrase itself is to broad, requiring legal defintion and precedent. It can apply to issues of conscience -- such as an abortion -- but it can aslo apply to inviolability of the home and personal correspondence. It's actually quite hard to supplement the language already given by the constitution without creating infeasible legal restrictions.

A very good point.

The freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States. Likewise, the freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended. And so too the privacy of the public post and of the home shall not be impugned, but upon oath or affirmation and by due process of law. In all cases and instances where the public safety be not endangered nor the rights of other persons be not threatened shall the free exercise of conscience command the utmost respect and deference under the laws of the United States


An excellent wording, I heartily commend it. I deem that all of the above may be really useful to build a broad-ranged freedom of conscience and expression garantee. I approve to put it in the draft in the present wording (I just corrected some spelling).


I was just worrying, since the clausle has got a bit long, wouldn't the Framers care to split it ? E.g.


1 - Freedom of Religion
The freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States.


2 - Freedom of the Press and Expression
The freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended.


3 - Right to Privacy
The privacy of the public post and of the home shall not be impugned, but upon oath or affirmation and by due process of law. In all cases and instances where the public safety be not endangered nor the rights of other persons be not threatened shall the free exercise of conscience command the utmost respect and deference under the laws of the United States.

This brings the total clausles of the BoR to 14. Still a nice, round number.

I mean 14 because I've noticed we have accidentally cut the clausle about Electoral fairness from the BoR.

This does a few things. Firstly, the addition of several clauses all acting in concert makes a good case to read this section as defending several different kinds of rights of conscience. Secondly, the specific privacy of the post is actually something that will be useful, since it was something that 1) southerners particularly feared and 2) Hamilton routinely abused.

I'm not sure, however, of including the last cluase "In all cases and instances" but it does suggest a broad range of other rights of conscience not defined in the preceeding protections. Accordingly, you might well see higher standard of proof develop than simple "probable cause" in some cases of extracting a warrant.

Good reasoning, and well done for finding a definition of privacy compatible with the period.

Overall, we might simply allow Congress a broader power to grant non-voting, advisory seats, as they do to Cabinet officers:

But Congress may, by law, grant to the principal officer in each of the Executive Departments and other Agencies and Institutions established under the laws of the United states as well as such other persons as they may judge usefull, including former Presidents and Vice-Presidents of the United States in good standing...


Good idea. Of course, it requires some tweaking of the wording:


But Congress may, by law, grant to the principal officer in each of the Executive Departments and other Agencies and Institutions established under the laws of the United states, as well as such other persons as they may judge usefull, including former Presidents and Vice-Presidents of the United States in good standing, a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department, agency, or expertise. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department, agency, or expertise, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

This also allows the Congress to expand Congressional testimony into a broad-based power to recruit temporary advisory members on a wide range of subjects, from scientists to generals. I don't see this as controversial, since the elected, full members can always revoke the privilege as they see fit. Although tradition will quickly make the seat of the former POTUS and VPOTUS effectively permanent, out of deference.

The holes addressed by the 20th and 25th Amendments can be pretty big, at times.

So very true. :eek:

The replacement of a VPOTUS is particularly tricky (and seems to come up a lot in AH).

What use a Presidential Succession, if you never use it ? ;)

I do think though that some of these passages may need to be reworked and compressed, given 18th century time horizons.

Your turn, if you care. My style skills are insufficient to the task. Some passage are kinda verbose, but this is among the most technical (and delicate) parts of the Constitution. A delicate balance between power vacuum and legal coup d' etat is required.

Anyway, when we assume the equivalent of the 20th and 25th are written in the Constituion ? From the start ? Or first time POTUS has serious lingering illness or VPOTUS dies in office ?

I meant that if a candidate for President lacks a clear (and confirmed) majority of votes in the Electoral College, then Congress selects both the Vice-President and the President, even if there is a clear electoral winner for the Vice-Presidency. With a clear conception of ticket voting, it doesn't seem like this would happen, but in 1824 precisely that happened: Calhoun was clearly VP, but the Presidency was deadlocked -- a testament to the political chaos of that year caused by the uncertain nature of the political parties at the time. In our case it explicitly allows Congress to form fusion administrations.

A nice idea in theory, but wouldn't people cry foul and be outraged if the EC's choice of a VP is overruled ? I may like the idea, but I worry that overruling the VP's normal choice would be too controversial for such a politically-charged occurrence as a deadlock.

One way would be to have the Senate and House vote in joint session as a single body (with explicit provision that this be the only time they are allowed to do so). When so assembled, they are exactly the numerical composition of the Electoral College (since before granting DC votes, that's how the EC is calculated). The same provision you outlined would apply to this body, that is a majority of votes and a majority of states -- this is actually a higher threshold than in the EC itself, thus mandating compromise.

Good solution. Then it becomes:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives and the Senate in joint session and voting as one body shall choose immediately, by ballot, the President. But in choosing the President, a quorum for this purpose shall consist of two-thirds of the whole number of Representatives and Senators from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.

These italics potentially changed if VP selection automatically granted to Congress upon deadlocked selection of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the House of Representatives and the Senate in joint session and voting as one body shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Representatives and Senators from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.


I would point out, however, that there's an equal argument to engineer a situation where the VP becomes a separate role in and of itself, like the lieutenant governor of many states, in which it's completely feasible to allow a VP of a different party, as is the practice in many states. Because of the example of Jefferson and Adams and because the VP was denied any power as President of the Senate (by Senate rules and because the First Senate didn't like John Adams), the VP's main function is to be the "spare" President. I would argue that such an arrangement is not necessarily less efficient than a single ticket, it simply results in a non-unitary executive. We've already introduced something of that with Congress' power to create independent agencies. Nevertheless, it's a more substantial departure.

Oh, it's quite possible that the VP may grow to exploit the position of President of the Senate, and not just be the ineffectual "spare" president. But I still assume that in the vast majority of cases, the evolution of the party system will still cause same-party tickets to happen.

Well, if you highlight the fact that Congress gets to judge the validity of the electoral votes (which the OTL Constitution leaves very vague) and if you provide a more predicatable means to solve a deadlock, then I would disagree.

Nevertheless, in the context of the 18th and 19th centuries, it's quite relevant: many states had widely varying practice regarding presidential selection. South Carolina didn't have public election for electors for the Presidency until after the Civil War, IIRC.

Furthermore, the EC does 1) increase the likelihood of an emergence of a fully national two party system, making TTL's incorporation of more land easier by providing incentive to political absorption and 2) isolate electoral disputes to specific states.

Additionally, with a larger House of Reps than we currently have, the less likely the EC returns a differeing result from the popular vote.

Good points, and convincing enough that we can leave the EC alone as things look at present.

That's fine, but who gets to remove the Heads of Independent Agencies and for what?

Well, we have written that they may be removed by impeachment or finding of disability by majority vote of Congress , but a case may be done that impeachment is just too slow and cumbersome (even if I assume that the Framers had not a full realization of how impeachment could become terribly time-wasting to the legislative body of a superpower), in comparison to the swift stroke of a pen a President may remove a Cabinet Secretary. A Congressional supermajority could become an effective and acceptable substitute. I'm uncertain whether to make it 2/3 or 3/5, although. Probably the latter.

The principal officers of other Agencies and Institutions established under the laws of the United states shall serve for terms specified in the charter of their respective institution and shall be removed from Office by a vote of three-fifths of both Houses of Congress.

Also, since this effectively creates protection for a civil service, should we provide a Constitutional power for Congress to create a Civil Service exam?

Sure, as long as it is a dormant power to be eventually rediscovered and not a mandate from the start. The spoils system must be allowed to flourish somewhat, in order to foster the growth of the parties.

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Agencies, Institutions, or Departments, and establish reasonable and fair criteria of merit for the selection of elegible candidates.

Searching for a broad, flexible definition here, which would allow Congress to pick merit system or spoils system as they see fit.

Sounds good, though as you pointed out it would be otherwise covered in the blanket provision to this effect in Section 9.

Yes although I think it would be less controversial to provide a specific provision here.

Well, it's always nice to have the option, but why would an export tariff be a good policy? Plus, it's another encroachement on states' rights. We probably have enough of those already. :rolleyes:

I thought that since the free-trade, states' rights champions Confederate Framers thought fit to give themselves the option, it was reasonably safe for the federal constitution, too.

Well, just adding it to ours seems repetitive to me. It does suggest some better phrasing though:

"The Congress shall have Power to dispose of, acquire, and make all needful rules and regulations forthe Territory or other Property belonging to the United States, lying without the limits of the several Sates*, provided that no such rule or regulation shall infringe upon the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rule or regulation deprive a person** of life, liberty, or property, without due process of law.***

New States may be admitted into this Union by a majority vote of both Houses of Congress, either from the territory of the United States or by the inclusion, upon application, of foreign republics and parts thereof. The same vote shall also be sufficient for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government."

*Include this phrase might substanitally limit the ability of the Federal government to control federal property within established states, which includes things like naval and army bases. Probably it shouldn't be included.

**It occurs to me this might grant Native Americans a lot more Constitutional protection than they might otherwise have. Probably a good thing in the long run, I suppose.

***Might we want to expressly incorporate a requirement that Congress only create territorial governments in so far is they accord with and respond to the "authority which follows from the consent of the governed." It also occurs to me that the current phrasing isn't really what we intended. All the provisions we list flow from the Bill of Rights, which would limit Congress in all of these instances as much as it would in any other. Rather what we mean to do is tie Congress' hands in meddling with the internal constitutions and popular sovereignty of established territoires.


An improvement, but it suggest to me a further rewording that may be even better:

The Congress shall have Power to acquire, dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law.

The Congress shall have power to provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several States, with authority which follows from the proper consent of the governed, according to the precedent of this Constitution.

New States may be admitted into this Union by a majority vote of both Houses of Congress, either from the territory of the United States or by the inclusion, upon application, of foreign republics and parts thereof. The same vote shall also be sufficient for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government."

Secondly, the power of pardon and reprieve really needs to be paired closely with power over prosecution.

Does so ? Do Governors have such a close scrutiny and strict control voer state prosecution, or POTUS over federal prosecution ?

Furthermore, the judicial process at a local level is one of the core responsbilities left up to the states.

Pardon cannot be properly described as an integral part of the judicial process IMO.

Thirdly, if you're trying to create a more efficient Federal government to allow the Ameriwank to procede, it would seem to me that the last thing you'd want is to allow the President to have power to meddle in such a small issue.

Well, it is not always a small issue. Sometimes, international relationships or national security may well require that the national government be allowed to brush away a state offense quickly and efficiently, without need to lobby a state government to do the same. True, it is quite of an extreme resort, but rather handy sometimes.
 
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General Zod

Banned
Truly sorry, I only have noticed this just now.:eek:

Other potential defects of the 1787 Constitution:

1) Secession: To me this seems to be the big one. Regardless of whether you're trying to avoid the Civil War, the fact that a silence which could conote illegality could also mean legality made for a potent threat in the 19th century. The most potent solution, IMO, is to allow secession, but only under certain conditions: first, a petition by a state convention elected for the purpose; second, a two-thirds vote by Congress; third, a two-thirds vote by another convention and/or referendum. Such a process is complicated enough that I doubt it would ever be successfully used; if it's flouted, rebels have far less ground to stand one.

Hmm, we could use a similar procedure as for constitutional amendment. It would require the consent of the state population, the Congress, and the supermajority of the various states. What about: first, a petition by a state convention elected for the purpose; second, a two-thirds vote by Congress; third, the assent of the two-thirds of the states' legislatures or conventions; fourth, two-thirds vote by another convention and/or referendum.

Any such provision, however, should be accompanied by another declaring the Constitution of the United States to be established in perpetuity, to use Lincoln's turn of words.

These three provisions could form Article VI.

2) Continuity of Government: Secession laws have changed through US history.

I assume you mean Presidential Succession. :p

Anyway, yes, they have changed several times, and personally I deem it worthwhile changes to current law would be to:

  1. Amend Section 19 to eliminate the requirement that statutory successors resign their posts before assuming the Acting Presidency.
  2. Amend Section 19 to allow a senior cabinet officer under a temporary disability to assume the Acting Presidency from a more junior cabinet officer.
  3. Remove the Speaker and President pro tempore from the line of succession, along with the less important cabinet offices. It should begin with the Secretary of State, and continue on with the Secretary of Defense, the Secretary of the Treasury, the Attorney General, and the Secretary of Homeland Security (in that order). It should follow with the federalized Governors, in order of theoir State's population.
  4. By statute, allow the President to appoint, with the advice and consent of the Senate, additional, non-cabinet statutory successors (First, Second, Third Assistant Vice Presidents).
  5. A constitutional amendment that allows the President to nominate, subject to Senate confirmation, statutory presidential successors (in addition to the cabinet) who are not “Officers” of the United States, but nevertheless are eminently qualified, to act as President, and eliminates other uncertainties in the succession mechanism, such as whether the confirmation of a Vice President nominated under the 25th Amendment operates to displace a statutory Acting President who made the nomination.
There's also the question of Presidential disability.

What about appointing VPs?

This the text of the 25th covers adequetely.

What happens if a majority of Representatives die?

Good question. I've found various proposals of constitutional amendments to fill the vacancy

“Congress shall have power to regulate by law the filling of vacancies that
may occur in the House of Representatives in the event that a substantial
number of members are killed or incapacitated.”

‘‘SECTION 1. Congress may by law provide for the appointment of temporary members of
the House of Representatives to serve during any period in which one-fourth or more of the seats ofthe House of Representatives are vacant due to death or incapacity.
‘‘SECTION 2. Any temporary member appointed pursuant to a law enacted to carry out this
article shall serve until a member is elected to fill the vacancy in accordance with the applicable laws
regarding special elections in the State involved.’’

"Section 1. During a period subsequent to a declaration of war, or hostilities authorized by Congress, or national emergency proclaimed by the President under this article, the executive authority in each state may temporarily appoint otherwise qualified individuals to fill vacancies (due to death, resignation, or permanent incapacity) in the representation of the State in the House of Representatives until such time as such vacancies are filled pursuant to a writ of election.
"Section 2. Congress may provide by law the manner by which each House shall determine the permanent or temporary incapacity of its members at any period, including the procedure by which determination of temporary incapacity may be removed, and the quorums required during such wars, hostilities, or national emergencies.
"Section 3. During such war, hostilities, or national emergency, whenever vacancies occur among the justices of the Supreme Court, the President may assign, in order of seniority, active judges from the highest level of inferior courts, to such vacancies, such assignments to terminate at the end of the next session of the Senate.
"Section 4. Persons holding such temporary positions shall retain all rights, privileges, and compensation of their original offices under the United States or any State, notwithstanding any prohibition against their holding simultaneously offices of profit or trust under the United States and any State. They shall receive no additional compensation by the United States, except for expenses as provided by law.

"Section 5. During such war, hostilities, or national emergency, Congress may declare, by a two-thirds vote of each House, that the Government of a State is no longer able to function in a manner as provided by the constitution of that State. Congress may by law provide for the temporary governance of that State and for the full restoration of government by the people of that State as soon as feasible.
"Section 6. Congress may terminate any national emergency declared under this article."

Personally I deem the first proposal would be more true to the intent of the 1787 framers. They would most likely think of the issue, if at all, in case of invasions or insurrections, and probably the details to statute.

3) Deadlocked Presidential election: as stated previously, even the method used by the 12th Amendment is far from perfect.

Yes, but I think we have been improving it satisfactorily. We just need to decide whether the VP-elected gets overruled for Congressional election when the EC is deadlocked over the President.

4) Fugitive slave clause: caused a ton of trouble with the North resenting slave catchers operating on their soil and the South resenting Northern refusal to enforce constitutional provisions.

This is so very true. I've always thought the Framers were very unwise not to provide for the possibility of just compensation, and slave-catchers being bound by die process of law.

Proposal:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour without just compensation, or shall fail to be delivered up on Claim of the Party to whom such Service or Labour may be due, as the State receiving the escapee may deem fit, upon oath or affirmation and by due process of law.

The provisions covering extradition should be amended in consequence:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime, upon oath or affirmation and by due process of law.

5) The extent of the Commerce clause and the power of Federal compulsion of the states (implied by Federal money): anachronistic in the 18th century, we've actually provided something of a bulwark against both in the "domestic institutions" clause.

Indeed.

6) Size of the US House. Sure there's the vague guarantee of fair elections, intended to prevent gerrymandering / rotten borroughs (the Framres would be familiar with the latter).

And that settles gerrymandering nicely.

But the actual number of Representatives determines a lot about the nature of government in the USA. The House of Reps is by far on of the smallest lower houses in the Western world today: the House of Commons has well north of 600 members while the Hose of Reps has only 435. Per capita, there's an even large discrepancy. Even in 1788, the size of the House was pretty small. A larger house decreases the marginal authority of each member and thus increases the power of the Speaker and parties (as well as the President).

This is a very good point. For a start, a provision should be insterted in the Constitution that each district should be as mathematically equal as reasonably possible. A solution might be to amend the Equal Fairness BoR clausle as follows:

13 – Guarantee of Electoral Fairness.
The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices nor the equality of each elector and should in all cases endeavor to express the free choice of the respective community of electors.


Equally-sized districts ameliorates representation somewhat, but in order to settle the issue for good, a minimum number of Representatives realtive to the population must be enshrined just like a maximum one is. Now if we want to be true to period, the framers almost made it constitutional a limit of 1:50,000 in the BoR, in an Amendment that failed to be ratified because a mathematical defect was inserted at the last minute (actually the Amendment mandated a complex three-tiered scheme to adjust for growing population sizes from a 1:30,000 ratio to 1:50,000, but let's skip it).

This would yield a staggering 6,000 Representatives with the about 300M OTL USA population. Even rather more in the typical Ameriwank, which would add pretty much all of North America's about 500M population, to 10,000 representatives. Adding Spanish South America would mean another 200M people, for 14,000 Representatives. Almost the same for adding Brazil. Obviously the Framers cared a lot about keeping the House close to the people, but had no idea how crowded the country could become.

Now, looking for comparable numbers for lower house sizes around the world, a pattern seems to emerge that typical ratio range from 1:100,000 to 1:200,000, with China and India as the only notable exceptions. The latter was also the ratio last time the HoR was expanded. Even the European Parliament, which probably best compares to a proper HoR for a typical Ameriwank , stages 785 MoP for 342 M people.

Now, differently from some of the enthusiastic proposers of the original rule on the net, I happen to harbor some doubts of the manageability of a 10,000 legislative body, as desirable as "human size" districts may be. Nonetheless, increasing the number of the Representatives would be highly desirable, as it would reduce the appeal of lobbies and special interests' money, and make the HoR more close to the people.

I believe that a reasonable solution would be put the 1:50,000 ratio in the Constitution, to be true to period, and then assume that it gets amended sometime in the 2oth Century, when it grows unwieldy, to 1:200,000, if we assume they will seek more manageable numbers, or 1:100,000 if they seek to be as representative as possible.

Hence


The Number of Representatives shall not exceed one for every thirty Thousand, nor be less than one Representative for every fifty thousand persons, but each State shall have at Least one Representative.
[later amended to a nor be less than one Representative for every two hundred thousand persons]

7) Even the most perfect Constitution for 1787 will still need to change by 1900 for the US to become powerful. For one, it would be hard to have income taxes allowed in 1787 and it'd be equally hard to finance a Great Power government without them (or other such direct taxes).

Heh, no doubt the 16th Amendment was pretty much unavoidable as both the economic base and its great power commitments would expand. It is pitiful that the 18th Century thought was so obfuscated by its rightful hate of poll taxes as to fail to perceive the fairness and advisability of keeping a proper balance between excises, wages income taxes, and property taxes. Nonetheless, I fail to find a wording that would have acceptable in 1787 and would have made the 16th unnecessary.

Additionally, if indirect election of Senators persists, the Senate will remain an unpopular body; this could increase the power of the House of Representatives. I for one think getting rid of indirect election isn't that good a thing because a stronger House of Reps would be a good thing and because direct election makes it very, very easy to ignore state politics completely, event though US states do most of the governing.

Anyway, I do believe that expecting direct elections of Senators in 1787 would probably be too much. It would truly be against too much of Framers intent, both to give state interest a powerful federal representation, and to create a check to unsrestrained popular passions.

The 13th-19th are truly about issues that will only become relevant rather later in the nation's history.

8) Scope, size, nature, and pay of the US Federal Judiciary and Supreme Court -- easily becomes a pawn of Congressional-Presidential battles, which makes the judiciay less independent.

9) Judicial Review. Not anywhere in the US Constitution, but easily implied by the existence of the Supreme Court and its independence from Congress and the President. Nonetheless, Congress still does much of the work to organize the Judiciary branch by establish lower courts and by establish the jurisdiction of the Supreme Court, save a few Constitutional issues.

Hmm, I pass making comments on the issue for lack of proper insight.

10) Flexible minimum limit for jury trials in civil cases.

This I believe we have settled satisfactorily.
 
An excellent wording, I heartily commend it. I deem that all of the above may be really useful to build a broad-ranged freedom of conscience and expression garantee. I approve to put it in the draft in the present wording (I just corrected some spelling).

I was just worrying, since the clausle has got a bit long, wouldn't the Framers care to split it ? E.g.

1 - Freedom of Religion
The freedom of conscience being essential to a free state, no establishment or preference of religion shall be permitted under this Constitution, nor shall the free exercise of religion be impaired, nor the equal rights of conscience be infringed, nor shall any religious test or qualification ever be required for any office or public trust under the United States.

2 - Freedom of the Press and Expression
The freedom of speech and of the press, the right of the people peaceably to assemble and to petition the Government for a redress of grievances shall not be infringed, impaired, or temporarily suspended.

3 - Right to Privacy
The privacy of the public post and of the home shall not be impugned, but upon oath or affirmation and by due process of law. In all cases and instances where the public safety be not endangered nor the rights of other persons be not threatened shall the free exercise of conscience command the utmost respect and deference under the laws of the United States.
I agree that it's pretty long, but so are the OTL 5th and 6th Amendments. Plus it's best to have them all as one unit because then it's clear that it's an attempt to define several different equal rights of conscience. If they're split, then the opening proviso will only appear with religious freedoms and the meaning of conscience thus will still be restricted.

This brings the total clausles of the BoR to 14. Still a nice, round number.

I mean 14 because I've noticed we have accidentally cut the clausle about Electoral fairness from the BoR.
No, it's No. 2 in TTL's BoR. Plus if you keep TTL's 1st Amendment as one unit, you have 12 Amendments. TTL's Framers can talk about "a new Twelve Tables to defend Liberty in the New World."

Good idea. Of course, it requires some tweaking of the wording:

But Congress may, by law, grant to the principal officer in each of the Executive Departments and other Agencies and Institutions established under the laws of the United states, as well as such other persons as they may judge usefull, including former Presidents and Vice-Presidents of the United States in good standing, a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department, agency, or expertise. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department, agency, or expertise, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.

This also allows the Congress to expand Congressional testimony into a broad-based power to recruit temporary advisory members on a wide range of subjects, from scientists to generals. I don't see this as controversial, since the elected, full members can always revoke the privilege as they see fit. Although tradition will quickly make the seat of the former POTUS and VPOTUS effectively permanent, out of deference.
Seems good to me. I do wonder how using this might make the evolution of the committee system different TTL.

Anyway, when we assume the equivalent of the 20th and 25th are written in the Constituion ? From the start ? Or first time POTUS has serious lingering illness or VPOTUS dies in office ?

A nice idea in theory, but wouldn't people cry foul and be outraged if the EC's choice of a VP is overruled ? I may like the idea, but I worry that overruling the VP's normal choice would be too controversial for such a politically-charged occurrence as a deadlock.
If it's the system from the beginning then I think the alt-Federalists Papers might well explain the reasoning for throwing out the change: the desire to ensure a cohesive administration. Nonetheless, I'm not that wedded to the idea since I'd rather the VP develop a bit more independence anyway. It also posses a bigger problem for explaining who takes the Presidency when a choice is deadlocked past March 4th / January 20th.

Oh, it's quite possible that the VP may grow to exploit the position of President of the Senate, and not just be the ineffectual "spare" president. But I still assume that in the vast majority of cases, the evolution of the party system will still cause same-party tickets to happen.
True. Mostly depends on the proceedings of the First Senate.

Well, we have written that they may be removed by impeachment or finding of disability by majority vote of Congress , but a case may be done that impeachment is just too slow and cumbersome (even if I assume that the Framers had not a full realization of how impeachment could become terribly time-wasting to the legislative body of a superpower), in comparison to the swift stroke of a pen a President may remove a Cabinet Secretary. A Congressional supermajority could become an effective and acceptable substitute. I'm uncertain whether to make it 2/3 or 3/5, although. Probably the latter.

The principal officers of other Agencies and Institutions established under the laws of the United states shall serve for terms specified in the charter of their respective institution and shall be removed from Office by a vote of three-fifths of both Houses of Congress.
Well, I think you'd want to clarify that the removal is for specific reasons (probably those given to remove lower officers of departments).

Sure, as long as it is a dormant power to be eventually rediscovered and not a mandate from the start. The spoils system must be allowed to flourish somewhat, in order to foster the growth of the parties.

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Agencies, Institutions, or Departments, and establish reasonable and fair criteria of merit for the selection of elegible candidates.
Agreed. Probably add "equitable": "establish fair, equitable, and reasonable criteria of merit." At first this might be envisioned as a basic minimum but it's just the kind of opening one would need to establish a civil service exam.

Yes although I think it would be less controversial to provide a specific provision here.
Agreed.

I thought that since the free-trade, states' rights champions Confederate Framers thought fit to give themselves the option, it was reasonably safe for the federal constitution, too.
I agree with your reasoning, but that very dynamic makes me think they Confederate framers may have had something specific in mind to tax. Furthermore, the Southerners might fear that the Federal gov't, with sufficient votes in Congress, could place huge tariffs on the transport of slaves to territories of the USA.

An improvement, but it suggest to me a further rewording that may be even better:

The Congress shall have Power to acquire, dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law.

The Congress shall have power to provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several States, with authority which follows from the proper consent of the governed, according to the precedent of this Constitution.

New States may be admitted into this Union by a majority vote of both Houses of Congress, either from the territory of the United States or by the inclusion, upon application, of foreign republics and parts thereof. The same vote shall also be sufficient for the purchase of any territory to be added to that of the United States.

No new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State, or of any territory petitioning to become a state; nor shall any petitioning territory be denied entrance into the Union unless it shall fail to qualify by pre-established limit of population, by its proposed extent, or by lack of a republican form of government."
Nice change. I do think that we may need to alter this clause: "provided that no such rules or regulations infringe the equal rights of conscience or of property or the freedom of the press or the trial by jury in criminal cases nor shall any such rules and regulations deprive a person of life, liberty, or property, without due process of law."

Originally I had meant this to restrict the ability of Congress to determine the status of slavery in the territories. However, in the case of an originally and directly incorporated Bill of Rights, such a provision could be dangerously construed. I think the phrase you suggested about "the authority which follows from the proper consent of the governed" is closer to the mark.

Hence, I'd propose this revision:

The Congress shall have Power to acquire, dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rule or regulation shall unduly affect or prejudice the domestic institutions of the communities therein; Nevertheless, the laws, customs, and practices of these communities shall not infringe the equal rights of conscience [which IMO should encompass freedom of the press] or of property, nor restrict the trial by jury in criminal cases, nor deprive a person of life, liberty, or property without due process of law. The Congress shall also have power to provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several States, provided that such governments arise with the authority which justly derives [references the Declaration of Independence] from the consent of the governed, according to the precedent of this Constitution and of proper Republican principles of government.
Does so ? Do Governors have such a close scrutiny and strict control voer state prosecution, or POTUS over federal prosecution ?
IMO, executive power implies full power over prosecution. It's the essence of enforcing and thus of executing the law. At the Federal level, the Attorney General controls this directly but is answerable to the President. There are times when the control of the executive over the prosecution power has been tampered--particularly the Ind'pt Prosecutor Statute (which is part of why it was viewed as constitutionally dubious).

At the state level, the same general theory would still hold: that prosecution is an executive power. However, many states have expressly divided executives, with independently elected governors, lieutenant governors and other positions. Nonetheless, the power of pardon and reprieve is usually a prerogative of the governor; however, in some cases that power is tampered by mandatory deference to a pardon review board. This is the case in Texas, for example: the Governor retains the power of pardon and reprieve, but can only exercise that power when the Pardon Review Board judges appropriate. Such divided executive powers are usually the legacy of constitutional attempts either to mandate a weak government: in Texas and much of the South, they stem from Reconstruction and the legacy of the "liberal" reaction against the Republican state governments of the era. A nice way of saying that in some cases there's racial reason for a divided executive.

Pardon cannot be properly described as an integral part of the judicial process IMO.
How is it not? It deals with appropriate punishment and the like. It's the a primary mechanism for altering the outcome of a trial if direct appeal fails. Furthermore, it can only be exercised in specific cases, the essential limitation on the judicial power (the reason the SCOTUS can't issue advisory opinions, for example).

Well, it is not always a small issue. Sometimes, international relationships or national security may well require that the national government be allowed to brush away a state offense quickly and efficiently, without need to lobby a state government to do the same. True, it is quite of an extreme resort, but rather handy sometimes.
At times, yes, but there are really two such cases 1) involving diplomats which is addresses both by Article IV and the custom of diplomatic immunity and 2) cases where a foreign national has committed a crime in the US and therefore is subject to punishment under US law. The later instance might lead to such controversies (and has over the years, particularly in death penalty cases in the modern era), but local nature of the judicial process I would call an enshrined right of the customary of English common law and confirmed by OTL's 6th Amendment. At the most, you might make a case for granting a federal reprieve for such cases, but not a pardon (i.e. commuting a death sentence, but not setting a person free). I'd also think it important to tie the use of such power to some kind of Senate consent. Madison did consider a Senate / Congressional veto on State laws as part of the original Virginia Plan, but that was met with extraordinary concern.

IMO the need might well be precluded by the expanded Bill of Rights and an earlier incorporation of the Bill of Rights against the States. I should point out though that I'd imagine an earlier incorporation would start out as a weaker one in the early 19th century.
 
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Truly sorry, I only have noticed this just now.:eek:

It's the problem with such long posts. C'est la vie. Did you see my post on term limits?

Hmm, we could use a similar procedure as for constitutional amendment. It would require the consent of the state population, the Congress, and the supermajority of the various states. What about: first, a petition by a state convention elected for the purpose; second, a two-thirds vote by Congress; third, the assent of the two-thirds of the states' legislatures or conventions; fourth, two-thirds vote by another convention and/or referendum.

Any such provision, however, should be accompanied by another declaring the Constitution of the United States to be established in perpetuity, to use Lincoln'sturn of words.

It seems like we're in basic agreement. The primary question is whether to include secession provisions in the original document or not. Including it will make any future secession more difficult (though not impossible). More importantly that secession is contemplate by the document proves the Constitution recognizes some form of sovereignty, whether limited or latent, in the states. Nevertheless, our provision would mandate Congressional assent to secession, confirming the supremacy of the Union. Lastly, such a dissolution clause doesn't really solve the contract vs compact debate of the Early Republic: contracts frequently spend a lot of time discussion dissolution.

Nevertheless, even Jefferson and Madison might demure at actually including a provision for legal secession. Some scholars posit that the Constitution's most basic protection of liberty is to maintain a continental Union and prevent military conflict among the states. Hence, the Constitution would ipso facto change the strategic reality of the American experience be removing the likelihood of a continent of waring states, which would create the kind of tension that erodes inherently erodes liberty.

This provision instead might flow from something like a South Carolina Nullification incident -- a common AH mechanism to make secession illegal and unconstitutional before the tensions of the Civil War become definite.
I assume you mean Presidential Succession. :p

Dop! <<FACEPALM>> Yes, I meant succession. :p

Anyway, yes, they have changed several times, and personally I deem it worthwhile changes to current law would be to:

  1. Amend Section 19 to eliminate the requirement that statutory successors resign their posts before assuming the Acting Presidency.
  2. Amend Section 19 to allow a senior cabinet officer under a temporary disability to assume the Acting Presidency from a more junior cabinet officer.
  3. Remove the Speaker and President pro tempore from the line of succession, along with the less important cabinet offices. It should begin with the Secretary of State, and continue on with the Secretary of Defense, the Secretary of the Treasury, the Attorney General, and the Secretary of Homeland Security (in that order). It should follow with the federalized Governors, in order of theoir State's population.
  4. By statute, allow the President to appoint, with the advice and consent of the Senate, additional, non-cabinet statutory successors (First, Second, Third Assistant Vice Presidents).
  5. A constitutional amendment that allows the President to nominate, subject to Senate confirmation, statutory presidential successors (in addition to the cabinet) who are not “Officers” of the United States, but nevertheless are eminently qualified, to act as President, and eliminates other uncertainties in the succession mechanism, such as whether the confirmation of a Vice President nominated under the 25th Amendment operates to displace a statutory Acting President who made the nomination.
I'd elaborate further (I disagree with some of these ideas), but I don't think their discussion quite necessary. Firstly, actual line of Succession is detailed in the Act of Succession (the current law is from 1947). Secondly, allowing the appointment of a new VP essentially fixes the problem unless you either have a very strange string of deaths or a mass death.

IMO incorporating much of the 25th into the Constitution in 1787 makes sense. It's clear that the Founders did attempt to outline what would happen, but the clause in OTL 1787's Constitution is so brief that it creates the aforementioned holes plugged by the 25th: the 25th explains how disability is to be determined (it's referred to by the unamended text). The primary innovation besides that clarification was the ability to appoint a VP.



Good question. I've found various proposals of constitutional amendments to fill the vacancy

“Congress shall have power to regulate by law the filling of vacancies that
may occur in the House of Representatives in the event that a substantial
number of members are killed or incapacitated.”

‘‘SECTION 1. Congress may by law provide for the appointment of temporary members of
the House of Representatives to serve during any period in which one-fourth or more of the seats ofthe House of Representatives are vacant due to death or incapacity.
‘‘SECTION 2. Any temporary member appointed pursuant to a law enacted to carry out this
article shall serve until a member is elected to fill the vacancy in accordance with the applicable laws
regarding special elections in the State involved.’’

Personally I deem the first proposal would be more true to the intent of the 1787 framers. They would most likely think of the issue, if at all, in case of invasions or insurrections, and probably the details to statute.

I agree. We don't need much, just enough to allow the enactment of a legitimate contingency plan. I'd imagine a fusion of the two passages above would suffice.

"Congress shall have power to provide by law for the filling of vacancies that may occur in the House of Representatives in the event of the death or incapacity of a substantial number of members arising out a duly recognized threat to the security of the United States. Any acting member appointed under this provision shall serve until a member is elected to fill the vacancy in accordance with the applicable laws regarding special elections in the State involved."

Yes, but I think we have been improving it satisfactorily. We just need to decide whether the VP-elected gets overruled for Congressional election when the EC is deadlocked over the President.

Quite. In my opinion, it's largely a question of whether we prefer to give further constitutional weight to the "VP as spare President" or maintain his potential to be more independent than VPs have been OTL. I'm ambivalent between those options.

This is so very true. I've always thought the Framers were very unwise not to provide for the possibility of just compensation, and slave-catchers being bound by die process of law.

Proposal:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour without just compensation, or shall fail to be delivered up on Claim of the Party to whom such Service or Labour may be due, as the State receiving the escapee may deem fit, upon oath or affirmation and by due process of law.

I don't think the South would go for a "just compensation". It has the potential to create an even bigger fear of what fugitive slaves might do than OTL. This fear seems to me to be a recipe for an earlier Civil War. Nevertheless, it might be something to incorporate if we can figure out how to place the jurisdiction. Also, it further points to the fact that such persons aren't just "held to labor" but are considered property, thus making the issue of slavery and personhood very cloudy.

As to the second, it brings up the primary problem: in whose jurisdiction is the issue of a fugitive slave. IMO, it's best to explicitly make it an issue for the federal judiciary. The phrasing "as the State receiving the escapee may deem fit" would undermine that practice: OTL the matter was I believe referred to federal tribunals.

Rather than introduce these phrase (into an admittedly rather convoluted sentence already), I propose we add the following to the OTL text:

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due, unless that Party shall prefer and accept an offer of just compensation. Such claim shall be only be judged valid upon oath or affirmation and if established by due process of law and if no such procedure may infringe upon the domestic institutions either of the states at issue."

The provisions covering extradition should be amended in consequence:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime, upon oath or affirmation and by due process of law.

I don't really see that being necessary. The phrase "demand of the executive Authority" requires due process of law. Introducing a further qualifier to require due process would only cloud the restriction and allow the state in which the person had fled to potentially find grounds to refuse.


This is a very good point. For a start, a provision should be insterted in the Constitution that each district should be as mathematically equal as reasonably possible. A solution might be to amend the Equal Fairness BoR clausle as follows:

2 – Guarantee of Electoral Fairness.
The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices nor the equality of each elector and should in all cases endeavor to express the free choice of the respective community of electors


I would change the phrase to be "nor the equal franchise of each elector." Simply saying equality can be too vague.


Equally-sized districts ameliorates representation somewhat, but in order to settle the issue for good, a minimum number of Representatives realtive to the population must be enshrined just like a maximum one is. Now if we want to be true to period, the framers almost made it constitutional a limit of 1:50,000 in the BoR, in an Amendment that failed to be ratified because a mathematical defect was inserted at the last minute (actually the Amendment mandated a complex three-tiered scheme to adjust for growing population sizes from a 1:30,000 ratio to 1:50,000, but let's skip it).

This would yield a staggering 6,000 Representatives with the about 300M OTL USA population. Even rather more in the typical Ameriwank, which would add pretty much all of North America's about 500M population, to 10,000 representatives. Adding Spanish South America would mean another 200M people, for 14,000 Representatives. Almost the same for adding Brazil. Obviously the Framers cared a lot about keeping the House close to the people, but had no idea how crowded the country could become.

Now, looking for comparable numbers for lower house sizes around the world, a pattern seems to emerge that typical ratio range from 1:100,000 to 1:200,000, with China and India as the only notable exceptions. The latter was also the ratio last time the HoR was expanded. Even the European Parliament, which probably best compares to a proper HoR for a typical Ameriwank , stages 785 MoP for 342 M people.

Now, differently from some of the enthusiastic proposers of the original rule on the net, I happen to harbor some doubts of the manageability of a 10,000 legislative body, as desirable as "human size" districts may be. Nonetheless, increasing the number of the Representatives would be highly desirable, as it would reduce the appeal of lobbies and special interests' money, and make the HoR more close to the people.

I believe that a reasonable solution would be put the 1:50,000 ratio in the Constitution, to be true to period, and then assume that it gets amended sometime in the 2oth Century, when it grows unwieldy, to 1:200,000, if we assume they will seek more manageable numbers, or 1:100,000 if they seek to be as representative as possible.

Hence


The Number of Representatives shall not exceed one for every thirty Thousand, nor be less than one Representative for every fifty thousand persons, but each State shall have at Least one Representative.
[later amended to a nor be less than one Representative for every two hundred thousand persons]

Well, I had originally eschewed such a mechanism because it's bound to need change as the USA evolves. It also occurs to me, however, that such a a wording might blur the 3/5s clause. Does persons in this context include the 3/5s? I suppose the Framers didn't think such a concern valid because I've never seen it cited as a reason for the amendment's rejection OTL.

I might however include language which at least advises the amendment of that issue on some future time scale in order to avoid any argument that the Framers though that ratio had some specific importance or majesty. Another way to make the change, though, is to simply increase the number of people in the First Congress by increasing the total number used in the allocation enumerated in the Constitution. This might well be easier since it would "grandfather" in a larger starting point, from which Congress could set new ratios as it saw fit. If you expressly set the number of the First Congress at around 400 or so, you'd be well on your way to getting a 600-800 person House by the 20th Century.

Heh, no doubt the 16th Amendment was pretty much unavoidable as both the economic base and its great power commitments would expand. It is pitiful that the 18th Century thought was so obfuscated by its rightful hate of poll taxes as to fail to perceive the fairness and advisability of keeping a proper balance between excises, wages income taxes, and property taxes. Nonetheless, I fail to find a wording that would have acceptable in 1787 and would have made the 16th unnecessary.

Well, it's possible that the interpretation of the Constitution doesn't disallow the original use of income taxes: OTL they were employed in the Civil War but declared unconstitutional of potential violations of the proportionality to which an income tax was allocated. In theory, an income tax is charged equally to everybody, but income isn't equal and thus the actual amount of tax charge wouldn't be proportional to population. I wonder though if you could have a sales or value added tax combined with a flat income tax manage to skirt pass the hurdle. Even if either could, it would probably be open to judicial changes and the need to safeguard finances would necessitate amendment. A long-winded way of saying: yes, I agree.

Anyway, I do believe that expecting direct elections of Senators in 1787 would probably be too much. It would truly be against too much of Framers intent, both to give state interest a powerful federal representation, and to create a check to unsrestrained popular passions.

I agree.

The 13th-19th are truly about issues that will only become relevant rather later in the nation's history.

And potentially the 23rd, 24th (though perhaps not depending on the scope of TTL's 2nd Amendment), and 26th.

Hmm, I pass making comments on the issue for lack of proper insight.

Marshal derived judicial review thusly: the essential function of a judge is to say what the law is. In the case of a trial judge, he tells the jury what the law requires and allows. In the case of an appellate judge, he often must clarify what a general law means with respect to a certain situation. Furthermore, because the Constitution is explicitly the highest law of the land, if a judge finds there to be a contradiction between a law and the Constitution, the Constitution must take precedence. If the judge cannot hold a law unconstitutional, then he cannot uphold the constitution.

Nonetheless, federal judicial review of state law required yet another leap, but it was essentially the same logic. I've given an alt-judge a bit more ground and guidelines in this regard with the "domestic institutions" clause and provision of the bill of rights (or at least some of them) against the states.
 

General Zod

Banned
I agree that it's pretty long, but so are the OTL 5th and 6th Amendments. Plus it's best to have them all as one unit because then it's clear that it's an attempt to define several different equal rights of conscience. If they're split, then the opening proviso will only appear with religious freedoms and the meaning of conscience thus will still be restricted.

Good argument. I yield to your wisdom here.

No, it's No. 2 in TTL's BoR. Plus if you keep TTL's 1st Amendment as one unit, you have 12 Amendments. TTL's Framers can talk about "a new Twelve Tables to defend Liberty in the New World."

Nice turn of phrase for propaganda for the schoolchildren. :D Sorry for getting confused between drafts.

Seems good to me. I do wonder how using this might make the evolution of the committee system different TTL.

I assume that committee system will still become the fundamental tool for the work of Congress, since the HoR is poised to become way bigger under this Constitution, and an Ameriwank TL will make the Senate swell considerably. If anything, congressional testimony will lose much of its trial resemblance, and look more like parliamentary discussion.

Anyway, when we assume the equivalent of the 20th and 25th are written in the Constituion ? From the start ? Or first time POTUS has serious lingering illness or VPOTUS dies in office ?

Big question. On one hand, the provisions of the 20th and 25th are nothing but good pre-emptive common sense precautions that the Framers could have thought of themselves. Even if they did not foresee the Imperial Presidency, still leaving the Chief Magistrate lingering incapacitated in a bed without speedy substitution is terribly inconvenient, especially during a war, even in the more balanced system they foresaw. Since the whole point of this endeavor is that the Framers are rather more insightful and have a little more time on their hands, we might as well as that they put it in the original document. Certainly we ought to make so if we put provisions for emergency refilling of the HoR as well. And anywway, debilitating weakness of the POTUS or early death of the VPOTUS are poised to happen very soon in most TL (it first happened with Washington's influenza in 1790 OTL) so we must assume that first time it happens, most of those rather more insightful Framers (Hamilton _if he doesn't die in the duel_, Jefferson, Madison, etc.) would still be around and hurriedly and successfully lobby the Congress to cover the dangerous hole in the Constitution.

Therefore, in the end it does not change much and we could put it in the Constitution the provisions of the 20th and 25th from the start for simplicity. At least what it concerns the sections 3 and 4 of the 20th.

Sections 1 and 2 are a more tricky issue. As I understand it, long lapses between the election of the new Legislative and Executive and the beginning of their terms were a practical necessity during the 18th century, at which time a newly elected official might need several months to put his affairs in order and then undertake the arduous journey from his home to the national capital. Of course, that will become a serious burden and an impediment to the functioning of government in the modern age. I think we can assume those parts shall be revised as soon as technology (railroad and telegraph) makes long lapses unnecessary and inconvenient, and the first serious crisis unfolding in the lapses occurs (most likely ATL Civil War).

Nonetheless, I'm not that wedded to the idea since I'd rather the VP develop a bit more independence anyway. It also posses a bigger problem for explaining who takes the Presidency when a choice is deadlocked past March 4th / January 20th.

The deadlock is a very good reason why we should let the VP-elect take charge.

Well, I think you'd want to clarify that the removal is for specific reasons (probably those given to remove lower officers of departments).

Ok. Then the whole clausle becomes:

The principal officers of other Agencies and Institutions established under the laws of the United states shall serve for terms specified in the charter of their respective institution and shall be removed from Office by a vote of three-fifths of both Houses of Congress, for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty. Congress may by Law vest the removal of the other civil officers in such agencies and institutions, in the Heads of their Agencies or Institutions, or other Authorities, as they think proper, when the officers' services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.

And I think this settles the issue of Independent Agencies for good.

Agreed. Probably add "equitable": "establish fair, equitable, and reasonable criteria of merit." At first this might be envisioned as a basic minimum but it's just the kind of opening one would need to establish a civil service exam.

Agreed.

I agree with your reasoning, but that very dynamic makes me think they Confederate framers may have had something specific in mind to tax. Furthermore, the Southerners might fear that the Federal gov't, with sufficient votes in Congress, could place huge tariffs on the transport of slaves to territories of the USA.

Ok, let's remove it.


The Congress shall have Power to acquire, dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rule or regulation shall unduly affect or prejudice the domestic institutions of the communities therein; Nevertheless, the laws, customs, and practices of these communities shall not infringe the equal rights of conscience [which IMO should encompass freedom of the press] or of property, nor restrict the trial by jury in criminal cases, nor deprive a person of life, liberty, or property without due process of law. The Congress shall also have power to provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several States, provided that such governments arise with the authority which justly derives [references the Declaration of Independence] from the consent of the governed, according to the precedent of this Constitution and of proper Republican principles of government.


A very nice wording. I was just wondering, would it not better if we word Madison's limit on the states and territories as:


shall not infringe the equal rights of conscience, or of expression, nor restrict the trial by jury in criminal cases, nor deprive a person of life, liberty, or property without due process of law.

Expression has a broader sense than press, and conscience and expression together incorporate the 1st BoR better than conscience alone.

About the property bit:

I think that the wording we are concocting, ought to give territorial governments equal rights to abolish or to protect slavery, if they so choose (the same standard of the territories). I think that popular sovreignity is a standard that the 1787 Framers can easily agree about, but I don't think we ever ought to produce a document where the Congress is bound to protect slavery in the territories, notwithstanding the wishes of the communities. For this reason, I would gladly retain the protection for the "domestic institutions" bit, but strike the explicit protection for "property" rights, other than the "due process of law" bit. I really do not think that Northern states would ever agree on a Constitution where the Congress is bound to enforce slavery in the territories by force.

Therefore, I propose:

The Congress shall have Power to acquire, dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States, provided that no such rule or regulation shall unduly affect or prejudice the domestic institutions of the communities therein; Nevertheless, the laws, customs, and practices of these communities shall not infringe the equal rights of conscience, or of expression, nor restrict the trial by jury in criminal cases, nor deprive a person of life, liberty, or property without due process of law. The Congress shall also have power to provide governments for the inhabitants of all territory belonging to the United States, lying without the limits of the several States, provided that such governments arise with the authority which justly derives from the consent of the governed, according to the precedent of this Constitution and of a proper Republican form of government.


The phrase "proper Republican form of government" mirrors ATL Article V, Sec. 1, although I worry whether we should put the "proper" adjective there, too, use it for territories only, or drop it here, too; states and territories should have the same standard.

At times, yes, but there are really two such cases 1) involving diplomats which is addresses both by Article IV and the custom of diplomatic immunity and 2) cases where a foreign national has committed a crime in the US and therefore is subject to punishment under US law. The later instance might lead to such controversies (and has over the years, particularly in death penalty cases in the modern era),

Your other good arguments, which I've cut for space, would have otherwise convinced me, except for your case 2) above, which is the main reason I proposed the clausle in he first place. The controversies you mention have been the source of some serious international embarassment for the USA in the modern age, and I really wished to create presidential pardon and reprieve as an extreme remedy in such circrumstances.

Maybe as you suggested tie it to some kind of Senate consent. I've got an idea: we could use Senate overruling as a way to balance an expanded pardon power, e.g.

and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States or any State, except in Cases of Impeachment or when any such Pardon or Reprieve will be overruled by a two-thirds vote of the Senate.


This puts a nice check on really controversial presidential pardons, and gives the POTUS freedom to overrule local courts when it would be really expedient to superior national interest (esp. in case of foreign nationals). I would make it so that Senate has the option to overrule a pardon after it's granted, rather than giving a preliminary consent, which would narrow the power of pardon too much and take the Senate's time for trivial cases.

The other post I got a cursory glance but I need a bit more time to answer, and yes I did notice your post over limits, but I need further reflection on that, as I'm divided over the whole issue.
 
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General Zod

Banned
It's the problem with such long posts. C'est la vie. Did you see my post on term limits?

Yes, I did but I have not yet made up my mind over the whole issue. :confused:

It seems like we're in basic agreement. The primary question is whether to include secession provisions in the original document or not. Including it will make any future secession more difficult (though not impossible). More importantly that secession is contemplate by the document proves the Constitution recognizes some form of sovereignty, whether limited or latent, in the states. Nevertheless, our provision would mandate Congressional assent to secession, confirming the supremacy of the Union. Lastly, such a dissolution clause doesn't really solve the contract vs compact debate of the Early Republic: contracts frequently spend a lot of time discussion dissolution.

Excellent exposition of the issues at stake.

Nevertheless, even Jefferson and Madison might demure at actually including a provision for legal secession. Some scholars posit that the Constitution's most basic protection of liberty is to maintain a continental Union and prevent military conflict among the states. Hence, the Constitution would ipso facto change the strategic reality of the American experience be removing the likelihood of a continent of waring states, which would create the kind of tension that erodes inherently erodes liberty.

For this reason, I would say that a secession clausle really ought not to go in the original Constitution.

This provision instead might flow from something like a South Carolina Nullification incident -- a common AH mechanism to make secession illegal and unconstitutional before the tensions of the Civil War become definite.

In those TLs where Northern and Southern leaders can agree about the kind of constitutional compromise like the clausle we have been discussed about. That's not a given by any means, even in the 1830s. Also notice that such a provision makes a propaganda argument in the South more dififcult, but not impossible. A sufficiently PO South about its fears might claim recourse to open revolution according to the Declaration of Independence precedent.

I think we should chart a middle course about secession and slavery, neither make the Constitution so uncofrtable to the South that it chooses secession early, nor make it so confortable that it never thinks of leaving. Our optimized constitution should be fine both for Ameriwank TL where ACW is averted, and ofr those where it happens nonetheless.

I'd elaborate further (I disagree with some of these ideas), but I don't think their discussion quite necessary. Firstly, actual line of Succession is detailed in the Act of Succession (the current law is from 1947). Secondly, allowing the appointment of a new VP essentially fixes the problem unless you either have a very strange string of deaths or a mass death.

Agreed. Presidential succession beyond the appointment of a new VP is stuff for a statute, not the Constitution.

IMO incorporating much of the 25th into the Constitution in 1787 makes sense. It's clear that the Founders did attempt to outline what would happen, but the clause in OTL 1787's Constitution is so brief that it creates the aforementioned holes plugged by the 25th: the 25th explains how disability is to be determined (it's referred to by the unamended text). The primary innovation besides that clarification was the ability to appoint a VP.

Agreed about that. And the VP appointment is something that can easily be logically derived from the presidential power of appointment. I would also say that sections 3 and 4 of the 25th can be almost as easily derived from period precedents about abdications and monarch disability (the Cabinet taking the place of the Privy Council here). The only other logical alternative, putting the initiative for declaring a presidential disability in the hands of the Senate, would violate separation of powers too much. And as a matter of fact, as far as I know, the 25th has been remarkably little controversial in its genesis.

For these reasons, I think we should proceed to put the 25th and sections 3 ad 4 of the 20th in the original constitution.

I agree. We don't need much, just enough to allow the enactment of a legitimate contingency plan. I'd imagine a fusion of the two passages above would suffice.

"Congress shall have power to provide by law for the filling of vacancies that may occur in the House of Representatives in the event of the death or incapacity of a substantial number of members arising out a duly recognized threat to the security of the United States. Any acting member appointed under this provision shall serve until a member is elected to fill the vacancy in accordance with the applicable laws regarding special elections in the State involved."

Your wording gets my seal of approval. I assume we should put this in Article 1, Section 2, as follows:

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. Congress shall have power to provide by law for the filling of vacancies that may occur in the House of Representatives in the event of the death or incapacity of a substantial number of members arising out a duly recognized threat to the security of the United States. Any acting member appointed under this provision shall serve until a member is elected to fill the vacancy in accordance with the applicable laws regarding special elections in the State involved.

Quite. In my opinion, it's largely a question of whether we prefer to give further constitutional weight to the "VP as spare President" or maintain his potential to be more independent than VPs have been OTL. I'm ambivalent between those options.

Me, too, but the argument that to greenlight the VP-elect anyway gives the country rather more of a quickly available replacement in case of a relly nasty presidential deadlock makes me think this would be the better option in the mind of the Framers.

I don't think the South would go for a "just compensation". It has the potential to create an even bigger fear of what fugitive slaves might do than OTL. This fear seems to me to be a recipe for an earlier Civil War. Nevertheless, it might be something to incorporate if we can figure out how to place the jurisdiction. Also, it further points to the fact that such persons aren't just "held to labor" but are considered property, thus making the issue of slavery and personhood very cloudy.

As to the second, it brings up the primary problem: in whose jurisdiction is the issue of a fugitive slave. IMO, it's best to explicitly make it an issue for the federal judiciary. The phrasing "as the State receiving the escapee may deem fit" would undermine that practice: OTL the matter was I believe referred to federal tribunals.

Your arguments have merit.

Rather than introduce these phrase (into an admittedly rather convoluted sentence already), I propose we add the following to the OTL text:

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due, unless that Party shall prefer and accept an offer of just compensation. Such claim shall be only be judged valid upon oath or affirmation and if established by due process of law and if no such procedure may infringe upon the domestic institutions either of the states at issue."

I acknowledge that your wording is definite impovement upon mine. However, I think it may be improven even more. First, I object to the formula "prefer and accept", it makes the receiving state sound too much subordinate and deferential to the slaveholder, whereas the two parties ought to be on an equal footing. "Accept" quite suffices here. Moreover, I'm not a native English speaker, but woyuld not the last phrase read better "would infringe upon the domestic institutions in either of the states at issue" ?

Hence I propose:

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due, unless that Party shall accept an offer of just compensation. Such claim shall be only be judged valid upon oath or affirmation and if established by due process of law and if no such procedure would infringe upon the domestic institutions in either of the states at issue."



I don't really see that being necessary. The phrase "demand of the executive Authority" requires due process of law. Introducing a further qualifier to require due process would only cloud the restriction and allow the state in which the person had fled to potentially find grounds to refuse.

OK.


I would change the phrase to be "nor the equal franchise of each elector." Simply saying equality can be too vague.

Good idea. Noted and approved.

Well, I had originally eschewed such a mechanism because it's bound to need change as the USA evolves.

Yes, it's unavoidable. The Framers could have no idea of how populous their country could really become (even more so in an Ameriwank).

It also occurs to me, however, that such a a wording might blur the 3/5s clause. Does persons in this context include the 3/5s? I suppose the Framers didn't think such a concern valid because I've never seen it cited as a reason for the amendment's rejection OTL.

My reaosning also, so I'd say such a concern would be a non-issue.

I might however include language which at least advises the amendment of that issue on some future time scale in order to avoid any argument that the Framers though that ratio had some specific importance or majesty.


Yes. I'll try some something:

The Number of Representatives shall not exceed one for every thirty Thousand, nor be less than one for every fifty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three. Congress shall have power by a two-thirds vote to change the ratio of representatives to the population, should the population of the United States significantly change in size, to garantee an orderly form to the House of Representatives, provided the ratio is kept as close to the one provided in this Constitution as reasonably possible.


My only worry about giving the Congress power to change the ratio is that it may abuse it to change the number of Representatives artificially low, as it did OTL, and that the Supreme Court would not dare to strike the law down, deeming it a "political" question. Would the language I've used be sufficiently strong (and would it be in-period) ? 20th Century history has shown that Congress really can't be trusted at expanding the size of the HoR to keep up with population. OTOH, we have additional garantee in TTL 2th provision of the BoR which strongly mandates representative districts of equal size across the nation, which stops the the number from getting too low. And since a rather high ratio is hardcoded in the Constitution, and alterations would be a statute, all the SCOTUS has to do if the Congress abuses this power is to strike it down that statute. Since we would have the provision above and the 2nd as guidelines, on second thoughts I assume a SCOTUS with any spine at all would act.


Another way to make the change, though, is to simply increase the number of people in the First Congress by increasing the total number used in the allocation enumerated in the Constitution. This might well be easier since it would "grandfather" in a larger starting point, from which Congress could set new ratios as it saw fit. If you expressly set the number of the First Congress at around 400 or so, you'd be well on your way to getting a 600-800 person House by the 20th Century.

A possible option, but rather more complex to implement, so pardon me I'll skip it unless iother options provide unmanageable.

Well, it's possible that the interpretation of the Constitution doesn't disallow the original use of income taxes: OTL they were employed in the Civil War but declared unconstitutional of potential violations of the proportionality to which an income tax was allocated. In theory, an income tax is charged equally to everybody, but income isn't equal and thus the actual amount of tax charge wouldn't be proportional to population. I wonder though if you could have a sales or value added tax combined with a flat income tax manage to skirt pass the hurdle. Even if either could, it would probably be open to judicial changes and the need to safeguard finances would necessitate amendment. A long-winded way of saying: yes, I agree.

I agree too, especially as it concerns the wisdom for the late 1800s Congress of putting the constitutionality of income taxes beyond any reasonable judicial doubt. While researching my argument on 16th, I stumbled on and amused myself with reading some of the typical (and completely loony) arguments that tax-protesters abuse the Constitution with. If these guys can get so stubborn with totally ridiculous and frivolous arguments...

I agree that the 24th would most likely be unnecessary, since a SCOTUS getting any activist about civil rights (say, post-Brown) would swiftly ban poll taxes with the 2nd.

Hey, this means that barring other modern issues that may have better luck at getting solved with a constitutional amendment than OTL (the better candidates for this IMO would be the ERA and the DCVRA), we only have left the 13th-19th, the first two sections of the 20th, the 23th, and the 26th as issues that would still have to be settled by future amendments.

We have really done a good job of optimization, it seems :D

Concerning judicial review, it does not seem strictly necessary to me to put an explicit provision, given the reasons you provide. Nonetheless, if you deem it best to put an explicit provision, we have done it so on several other issues, and it would only be for the better, since IMO judicial review is an essential part of the functioning of a well-ordered government (notice how few well-functioning democracies work without some kind of constitutional court) and an explicit provision would silence its opponents.
However, you would have to provide the wording, since the judicial is one field where my skills are not up to the task.

A totally unrelated issue, and one that I'm putting forward for symbolic reasons more than anything else. In order to make the moral stance of the pre-Civil War USA on slavery just a bit less awful, and since the South only really cared about slavery at home, but not the foreign trade, do you it would be possible to make the Constitution automatically ban international slave trade past a certain date. Even the Confederate Constituion which makes slaveholding the most entrenched right ever, did so.

Something like this:

The Introduction of Persons held to Service or Labour from any State not a member of, or Territory not belonging to, the United States shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. Any such introduction shall be hereby forbidden after the Year one thousand eight hundred and twenty-three; and Congress shall be required to pass such laws as shall effectually prevent the same.
 
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