What amendment specifically does:
- Defines civil freedom and individual. The concept of equality is strengthened by stipulating individual. (Section 1a)
- Establishes minimum sentencing and fines for laws pertaining to civil freedoms. (Section 1b)
-Establishes a right to privacy clause. (Section 2)
-Creates a hierarchical relationship between present constitutional principles affecting individual civil liberties— places liberty at the top of the list. (Section 3)
- Amends Article V of our present constitution to also require a simple majority vote by the people for any newly proposed constitutional changes involving freedom, equality, or the concept of persons. (Section 4)
Founded in 2005, Americans for Freedom and Equality is a non-partisan organization
From a philosophical perspective:
1
There are three types of harms. The first type of harm is direct and intentional; for example, an individual commits premeditated murder with a gun. The second type of harm is direct but unintentional; for example an individual causes a no-fault car accident. The third type of harm can be categorized as a second party harm; for example, an individual backs their car out of a garage on a day where there are air pollution alerts, a couple of miles away an elderly individual unfortunately faces additional breathing problems. Second party harms do not carry direct or intentional characteristics. As individuals, we should be cognizant of all types of harms we may initiate, even those of the unintentional or 2nd party variety; but what should governments do with regard to the three types of harms, (particularly concerning illegality)? Because governments have the unique ability to punish and use force on a mass scale, they should only be concerned with the first type of harm—the kind that is direct and intentional in nature. There are positive and intelligent solutions for governments that wish to deal with unintentional or 2nd party harms, outside of the realm of punishment. For example, if one is concerned about the pollution of automobiles, why not have government reward consumers or auto manufacturers who buy or make make electric cars?
2
Freedom works as a well-grounded approach to law because it not only focuses on what is allowed, it also states what is not permissible. For example, acts that directly and intentionally harm other individuals are not part of freedom, they are a violation of the concept. Therefore, it is reasonable to conclude that murder, assault, kidnapping, robbery, burglary, larceny, fraud and rape would violate philosophical definitions of freedom that have been developed over the last three centuries.
Because part of freedom states what is not permissible, there is a strong sense of community inherently implied within it. Freedom is almost meaningless if you are stranded alone on a deserted island. Rather, it is a concept that explains how we should responsibly interact with others.
3
Part of freewill is allowing an individual to do as they wish to themselves, even if one knows it is not in their best interests. Philosophical acceptance of this prior statement allows for right of privacy interests to breathe in the law.
4
Freedom and equality are the highest of all governing virtues. One of the most damaging errors in governance is to place them in an imaginary battle with other virtues.
5
It is wiser to develop government laws with a “black and white” approach on principles, rather than specific issues. A grounded “black and white” approach on principles takes into account the gray areas of life, while a “black and white” approach on issues frequently does not.
When the law takes a “black and white” approach on issues it assumes the typical adult citizen has a below average intelligence. When this occurs, the law invites a paternalistic disposition. To the contrary, when the law takes a “black and white” approach on principles, it assumes the typical adult citizen has an average to above average intelligence.
6
Use of the word “right” has traditionally meant a gaining of power. The goal of this amendment, however, is not to gain power, this legislation seeks only to limit those who unnecessarily try to seize it. Therefore, this amendment adopts a similar philosophical stance to the Bill of Rights.
7
Civil freedom and equality should never be at odds with the rule of law. When they are, a general fear and mistrust occurs towards government. In addition, the surest way to produce unrest in society is to stress the rule of law without any acknowledgement of its possible defects on freedom and equality.
8
If government is allowed to place even one act of tyranny upon the people, or even one act contrary to the people’s natural rights of freedom and equality, an ominous legislative and judicial precedent is set that a totalitarian approach is acceptable for other areas of law.
9
If one has a theory of law that seems to work for a particular legal item, they should quickly apply their theory toward other aspects of law. If their theory fails miserably when applied to other aspects of law—back to the drawing board.
10
Absolutism is usually offensive to others. One tends to postulate that an absolute theory must be oppressive and controlling since the messenger is giving no room for other thought. One of the few exceptions to this rule is freedom. When one advocates for an absolute approach to freedom, they are allowing you to make the decisions that will shape your life. Thus, the oddity of this amendment—the more absolute we become toward freedom, the less absolute control is placed on individual lives.
11
When Thomas Jefferson stressed the Enlightenment philosophies in the Declaration of Independence he was painting an idea of liberty centered around the individual. Jefferson also correctly saw the danger of dividing up the word freedom and liberty. Those who believe in dividing up these concepts advocate that at times it is necessary to limit individual freedoms for the sake of enjoying liberty on a greater scale. On these matters of individual freedom vs. the greater picture of liberty Jefferson stated, “If we are made in some degree for others, yet in a greater degree are we made for ourselves. If were contrary to feeling and indeed ridiculous to suppose man had less right in himself than one of his neighbors or all of them put together. This would be slavery and that liberty which the bill of rights has made inviolable and for the preservation of which our government has been changed.”
To the contrary of Jefferson’s individual liberty stated in our Declaration of Independence, totalitarian or tyrannical philosophies squarely place the community and general welfare far above the rights of the individual.
From a legal perspective:
1
Much has been written about the proper legal role of our three branches of government. But what is the suggested legal position that “the people” should take relative to the Constitution? Are “the people’s” requirements for the U.S. Constitution identical to the three branches?
Americans For Freedom and Equality believe “the people” have the ultimate responsibility to judge the wisdom of our founding document. The justification for this claim is embodied in the opening words of our Constitution, “We the people of the United States…” James Wilson, who authored the Preamble stated that the Constitution’s “leading principle” is that “the supreme power resides in the people.” In addition Wilson stated that the Constitution “is announced in their (the people’s) name—it receives its political existence from their authority: they ordain and establish. What is the necessary consequence? Those who ordain and establish have the power, if they think proper, to repeal and annul.” This significant role is quite different from the judicial branch, which oversees that our present Constitution is faithfully interpreted. It is also a different obligation from the legislative branch, whose role was best defined by Thomas Jefferson. Jefferson said our legislators “true office is to declare and enforce our natural rights and duties and to take none of them from us…”
Does this statement of ultimate responsibility and authority negate “the people” from traditional legal interpretations? To the contrary, “the people” should faithfully consider all requirements that entail sound judicial and legislative decisions. This includes an understanding of America’s original constitutional text, common law heritage, the philosophical implications of freedom and equality, the intent of the Founders, America’s legal history, and the judicial precedents set out by the U.S. Supreme Court.
In addition, “the people” should take the “big picture view” of our legal history, rather than focusing on any one issue or time period. If the solemn obligation of evaluating America’s Constitution is taken up in this responsible manner, there will be an optimistic air that accompanies a “people” who have taken the initiative to ensure their happiness.
2
Americans cherish the concepts of freedom and equality contained within the Declaration of Independence and the U.S. Constitution. Many are correct to note that these items are sacred or “settled law” that should never be reduced. Therefore, the only appropriate constitutional amendment approach that deals with freedom and equality should be to promote their advancement. Since only an advancement of these present constitutional concepts is being asked, this proposed amendment honors all existing clauses contained within our U.S. Constitution.
The constitutional items of more perfect union, domestic tranquility, majority will, general welfare, and states’ rights will not be eliminated with this amendment. The same is true for police powers, (not specifically stated in our Constitution but implied through Supreme Court decisions and legislative precedents.) This statement is in reference to Section 3 of the Freedom and Equality amendment which says, “Domestic tranquility, more perfect union, states’ rights, majority will, and police powers are not to supersede civil freedoms—for with the open violation or denial of personal liberty through the law, we have tyranny.” I simply believe there is no evidence in America’s founding history that states or implies—use these items to ignore freedom and equality so that you may instead follow a tyrannical direction.
Compared to Thomas Jefferson and James Madison, Alexander Hamilton took a different view on the broad powers granted in the U.S. Constitution. Did these views, however, constitute an invitation to tyranny? In Federalist No. 33 Hamilton states, “If the Federal Government should overpass the just bounds of its authority and make a tyrannical use of its powers; the people whose creature it is must appeal to the standard they have formed, and take such measures to redress the injury done to the constitution…” So despite the fact that Hamilton thought the powers in the Constitution gave more license to government than what Madison or Jefferson would concur, none of the Founders or Framers believed that the U.S. Constitution granted authority for tyranny.
Additional reasoning
The initial draft amendment strongly implies that when an individual is in the privacy of their own home, and they are not engaged in direct or intentional harms upon others, the law has no right of coercion. In addition, this amendment strongly implies that an individual’s lifestyle choice within the meaning of civil freedom, and/or personal/hereditary status will not become an issue when they come before the law.
It is important to state that I do not claim that this amendment is able to solve all issues—this is the open-ended nature of constitutional provisions dealing with principles rather than issues. However, I can say with cautious optimism, that with passage of this amendment, it is more likely that future issues will be resolved with individual freedom and equality at the forefront. The reason for this cautious outlook is rooted in the last constitutional change that advanced freedom and equality for all persons—the 14th amendment. There was extensive debate on what impact the amendment would have before it was ratified in 1868. All these debates, however, could not foresee how the Supreme Court would specifically look at this new constitutional provision. For example, almost immediately after the 14th amendment was passed, the Court did not see females as full-fledged individuals. In Bradwell v Illinois (1873) women were denied the right to practice law, and in Minor v. Happersett, (1875) women were not permitted to vote in presidential elections. Does this mean that constitutional provisions that advance freedom and equality through principles ( such as the 14th amendment) should be frowned upon? Despite the 14th amendment’s initial disappointments, its long-term impact has affected the United States in a positive manner. It should be remembered that during the 20th century, the 14th amendment was instrumental in the hard fought constitutional battles won by women and African Americans.
What else can we learn from the history of the 14th amendment (Section 1)? As great as this provision was it did not define liberty, nor did it relate the concept of individual directly to freedom, (a necessity to advance equality). As a consequence, those who wanted to wriggle around the 14th could easily do so. The same analysis can be made toward the 1st amendment. James Madison, who helped draft this Bill of Rights provision in 1791, was disappointed at the ease at which it could be maneuvered around —only seven years after the 1st amendment was placed in the Constitution.
As a general rule of thumb, our three branches of government will follow specific constitutional amendments accurately, so as not to create unrest in the country. If, however, there are “ambiguities” within a particular amendment—such as what currently exists in our 1st and 14th amendments—a philosophical misreading or deliberate avoidance is quite possible.
Why not constitutionally address specific issues that need rectifying? Certainly there have been times in our American history when specific groups with particular issues have had their freedom and equality advanced. We believe these measures were necessary and correct. The 13th amendment exclusively outlawed slavery, while the 15th allowed voting participation regardless of race. The 19th amendment specifically dealt with the unfairness of not allowing women the right to vote.
As a whole, I support all constitutional initiatives that advance freedom and equality, whether principled or issue-oriented. My constitutional recommendation, however, is to use a principled approach, rather than one that is issue-based. To make an analogy, if a surgeon identifies cancer inside a patient, does she remove a partial amount, or does she try to remove as much as possible? Likewise, if we are going to invest time in a national constitutional amendment, should we continue dealing with a patchwork scheme, or should we try to mend the larger picture of how the individual is positioned toward government?
The following section gives a brief summary of reasoning for sentences within the Freedom and Equality (F.A.E.) amendment. The amendment’s wording is in italic quotes:
“No federal, state or local law…“ The due process clause of the 14th amendment applies to the states, the due process clause of the 5th amendment applies to the federal government. To clear any doubts as to its application, the proposed F.A.E. amendment is framed with the words, “federal, state or local laws.”
I believe the main legal issue in our country has never been the sovereignty of state power vs. federal. Rather it has always been the freedom and equality of the individual vs. tyranny on any government level. Unfortunately, up to present times, Supreme Court ambiguity on this issue has still left this question unresolved.
How will this amendment change the perspective on the sovereignty of states vs. the national government? This amendment implies the general principle that states should remain democratic laboratories, especially when they are pushing the envelope for freedom and equality. Thus, it is plausible that in some instances, states would have more sovereignty than the national government. If however, a state moves to invoke tyranny over persons— such as what happened in the case of slavery before the Civil War—our national Constitution should give the federal legislative and judicial branches the ability to protect individuals.
BIBLIOGRAPHY
Source notes
Home page: ”two-thirds vote in both houses of Congress“, “state legislatures in three-fourths of the states” “A second constitutional convention has never been called.“ Lee Epstein, Thomas G. Walker in Constitutional Law for a Changing America (The Free Press,1998)
Home page: ” … believe our outlined process is in accord with Article V of the constitution which does not contain language preventing “the people“ from proposing bills or amendments to Congress“ Alan Hirsch, Akhil Reed Amar in For the People (The Free Press,1998); from Chapter One, “The People’s Right to Amend the Constitution”, pages 3-33.
Amendment: “Civil freedom is the ability for persons to do as they will, as long as no direct intentional harms are present to others.”
France was the first country to have attempted to define freedom in their constitution. The definition presented itself in the Rights of Man,1789; it states, “Liberty consists of the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.”
Thomas Jefferson, who spent time in Paris on assignment from our government, seems to have taken issue with the last sentence of the French liberty definition. In a letter to Isaac Tiffany in 1819, Jefferson stated, “Rightful liberty is unobstructed action according to our will within the limits drawn around us by the rights of others. I don’t add “within the limits of law“ because the law is often a tyrant’s will and always when it violates the right of the individual.”
Italy has recently placed a definition of freedom in their newly revised constitution. It is very similar to the French definition in the Rights of Man.
In the 1800s two well-known philosophers gave their definition of freedom. Both definitions are significant because they were quoted in U.S. Supreme Court opinions. In his book entitled Essay on Liberty, John Stuart Mill stated, “An individual’s liberty can rightfully be constrained only in order to prevent harm to others.”* Herbert Spencer in his book, Justice, stated his definition for freedom, “Every man is free to do that which he wills, provided he infringes not the equal freedom of any other man.”
*One of the legitimate philosophical criticisms against Mill was that he never defined what “harms” were. We believe that this amendment’s definition of civil freedom corrects this error by detailing that harms—with regard to government’s right to punish individuals— should have a “direct” or “intentional” association.
Another source for the amendment’s term intentional comes from Socrates in the Apology. In this famous story, Socrates is made to drink poison as a punishment for expressing his opinions. Socrates says to the judge, “if my offense is unintentional, the man of law has no cognizance of unintentional offenses..”
Amendment: “Persons are humans of any race, ethnicity, language, creed, nationality, sex, sexual orientation, mental conscience, lifestyle choice, political party or disability.”
The U.N. Charter (Article 55[c]) lists these categories for persons: “Universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
The Universal Declaration of Human Rights, sponsored by the UN, and signed by theUnited States says in Article 2: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The following U.S. laws cover these categories of persons:
Immigration Reform and Control Act (IRCA) prohibits discrimination based on nationality.
Civil Rights Act of 1964 bans discrimination against persons of race, color, religion, or national origin.
The Federal Americans with Disabilities Act prohibits discrimination based on disability.
The Federal Age Discrimination in Employment Act (AEDA) prohibits employment discrimination based on age.
There are currently no U.S. federal laws prohibiting discrimination based on sexual orientation, however, there are numerous entries in state and local laws.
Amendment: “Within the context of civil freedoms the right of privacy is guaranteed to all persons.”
A direct mention of a constitutional right of privacy is found in the constitutions of the Netherlands, Finland and Israel. The state constitution of California also has a right to privacy clause.
The Universal Declaration of Human Rights mentions a right to privacy:
Article 12 ”No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour or reputation. Everyone has the right to the protection of the law against such interference’s or attacks.”
Lee Epstein and Thomas Walker in Constitutional Law for a Changing America, page 419, state that justices of the Supreme Court have affirmed a right of privacy, however, they have come to differing conclusions as to which constitutional sources guarantee that right. The sources the Supreme Court justices have identified are:
- The First Amendment’s right of association
- The Third Amendment’s prohibition against quartering soldiers
- The Fourth Amendment’s Search and Seizure Clause
- The Fifth Amendment guarantees against self-incrimination
- The Ninth Amendment
- The Fourteenth Amendment’s Due Process Clause
Explanatory section: The definition of chilling, “overly broad legislation that makespeople fearful of legitimate activity.” Epstein, Lee; Walker, Thomas G. in Constitutional Law for a Changing America.
Explanatory section: The definition of civil freedom, “Covers issues of freedom, the right to privacy and discrimination.“ Epstein, Lee; Walker, Thomas G. inConstitutional Law for a Changing America.
Reasoning: “The due process clause of the 14th amendment applies to the states, the due process clause of the 5th amendment applies to the federal government.” Epstein, Lee; Walker, Thomas G. in Constitutional Law for a Changing America.
REFERENCES
United States. Declaration of Independence and the Constitution of the United States of America: John M. Ashbrock Center for Public, 2001
Hamilton, Alexander; Madison, James; Jay, John. The Federalist Papers : PenguinClassics,1987
Appleby, Joyce. Jefferson: Political Writings: Cambridge University Press,1999
Paine, Thomas. Common Sense: Dover Publications,1997
Paine, Thomas. Rights of Man: Penguin Classic,1984
Mill, John Stuart. Essay on Liberty: Longman, Roberts & Green 1869; Bartleby.com,1999
Spencer, Hubert. Justice: Being Part IV of the Principles of Ethics: London: Williams & Norgate, 1891
Cooper, John M. Plato Complete Works : Hackett Publishing Company,1997
Jefferson, Thomas. Notes on the State of Virginia: Penguin Classics, 1998
De Tocqueville, Alexis. Democracy in America : Signer Book, 2001
Hall, Kermit L. The Oxford Guide to United States Supreme Court Decisions: Oxford University Press, Inc., 2000
Cogan, Neil H. The Complete Bill of Rights : Oxford University Press,1997
Hugler, Jerome. Locke in America: University Press of Kansas,1995
Williams, David. The Enlightenment: Cambridge U.K.; New York: Cambridge University Press 1999
Gurko, Leo. Tom Paine: Freedom’s Apostle: Ty Crowell,1957
Chernov, Ron. Alexander Hamilton: Penguin Books, 2004
Cappon, Lester J. The Adams-Jefferson Letters: University of North CarolinaPress,1988
Plato. Defence of Socrates, Euthyphro, Crito: Oxford University Press
Rawls, John. A Theory of Justice: Belknap Press,1999
Plato. Laws: PocketePCpress, 2000
Plato. Plato’s Republic: Agora Publications, 2001
Tessitore, Aristide. Aristotle and Modern Politics: University of Notre Dame Press, 2003
Nozick, Robert. Anarchy, State and Utopia: Basic Books,1977
Rand, Ayn. Introduction to Objectivist Epistemology: Plume,1990
Lively, Donald E. Landmark Supreme Court Cases: Greenwood Press,1999
Read, James H. Power Versus Liberty: Madison, Hamilton, Wilson and Jefferson: University Press of Virginia,2000
Walling, Karl Friedrich. Republican Empire: Alexander Hamilton and FreeGovernment: University press of Kansas,1999
Sullivan, Harold J. Civil Rights and Liberties, Prentice Hall,2004
Lipkin, Robert Justin. Constitutional Revolutions: Pragmatism and the Role ofJudicial Review in American Constitutionalism: Duke university Press, 2000
Nagel, Robert F. The Implosion of American Federalism: Oxford University Press, 2002
Tushnet, Mark V. Taking the Constitution Away From the Courts: PrincetonUniversity Press,1999
Shmuel, Lock. Crime, Public Opinion and Civil Liberties: Praeger Publishers, 1999
Patterson, Orlando. Freedom, Vol. 1: Freedom in the Making of Western Culture: Basic Books; Reprint edition, 1992
Witte, John; Witte, Jr.; Catalano, Steve. Religion and the American ConstitutionalExperiment: Westview Press, 2004
Amar, Akhil Reed; Hirsch, Alan. For the People: The Free Press,1998
Simpson, Peter. A Philosophical Commentary on the Politics of Aristotle: University of North Carolina Press, 2002
Klarman, Michael J. From Jim Crow to Civil Rights: Oxford University Press,2004
Epstein, Lee; Walker, Thomas G. Constitutional Law for a Changing America: Congressional Quarterly Inc., 2004
Alston, Philip. The EU and Human Rights: Oxford University Press, 1999
Irons, Peter. A People’s History of the Supreme Court: Penguin Books, 2000
Cogan, Neil H. The Complete Bill of Rights. Oxford University Press, 1997
Anastaplo, George. The Amendments to the Constitution: A Commentary: The John Hopkins University Press, 1997
Bernstein, Richard B.; Agel, Jerome. Amending America: Time Books,1993
Vile, John B. Encyclopedia of Constitutional Amendments, and AmendingIssues,1789-1995,: ABC-Clio Inc.,1996
Hall, Kermit L.; Finkelman, Paul; Wiecek, William M. American Legal History: Oxford University Press, 1996
Frantzich, Stephen E. Citizen Democracy: Rowman & Littlefield Publishers,1999
Jayne, Allen. Jefferson’s Declaration of Independence: Origins, Philosophy andTheology: The University Press of Kentucky,1998
Cohen, William. Supplement to Cohen and Kaplan’s Constitutional Law: Foundation Press,1987
Guelzo, Allen C. Lincoln’s Emancipation Proclamation: Simon & Schuster,2004
Stone, Geoffery R. The Bill of Rights in the Modern State: University of Chicago Press,1992
Der Meide, Wayne Van. Legislating Equality: Policy Institute of the National Gay and Lesbian Task Force, 2000
Kershaw, Ian. Stalinism and Nazism: Dictatorships in Comparison: Cambridge University Press, 1997
Maitland, Frederic William. A Historical Sketch of Liberty and Equality: Liberty Fund, 2001
Rohmann, Chris. A World of Ideas: Ballantine Books, 2000
Duncan, Christopher M. The Anti-Federalists and Early American Political Thought: Northern Illinois University Press, 1995
Labunski, Richard. The Second Constitutional Convention: Marley & Beck Press, 2000
Matthews, Richard K. If Men Were Angels; James Madison and the Heartless Empire of Reason: University Press of Kansas, 1994
Ebenstein, Alan; Fogelman, Edwin; Ebenstein, William. Today’s Isms: Prentice Hall,1999
Hitler, Adolph. Mein Kampf: Mariner Books, Reissue edition, 1998
Eisenach, Eldon J. Mill and the Moral Character of Liberalism: Pennsylvania State University press, 1999
Goodin, Roberet E. Contemporary Political Philosophy: Blackwell Publishers,1997
Capoldi, Nicholas. Immigration: Debating the Issues: Prometheus Books, 1997
Machan, Tibor R. Liberty for the 21st Century: Rowman & Littlefield Inc., 1995
Hauser, Barbara H.; Tigges, Julie A. Women’s Legal Guide: Fulcrum Publishing, 1996
Padover, Saul K. The Living U.S. Constitution: Meridian,1995
Zakaria, Fareed. The Future of Freedom: W.W. Norton Company, 1999
Mencken, H.L. Mencken’s America: Ohio University Press, 2004
Clinton, Robert Lowry. God and Man in the Law: The Foundation of Anglo-American Constitutionalism: University Press of Kansas, 1997
Wood, Gordon S. The Radicalism of the American Revolution: Vintage, 1993
Dworkin, R.M. Freedom’s Law: The Moral Reading of the American Constitution:
Harvard University Press, 1997
Rakove, Jack N. (editor). Interpreting the Constitution: The Debate over OriginalIntent: Northeastern University Press,1990
Boaz, David. The Libertarian Reader: Free Press,1998