Rewriting the Constitution

Stanley Korn
8 min readAug 22, 2020

When a new version of a computer operating system, such as Microsoft Windows, is introduced, it generally has a number of bugs and security vulnerabilities that are detected and fixed over time by means of patches to the system. Eventually, the number of patches becomes so large that the operating system becomes unwieldy; time for a new version.

The Constitution is our legal operating system, to which the amendments are patches. However, one problem with updating the Constitution by amending it is that the Framers of the Constitution deliberately made the process of amending the Constitution extremely difficult to carry out. An amendment must be proposed either by Congress with a two-thirds majority vote in both houses or by a constitutional convention called for by two-thirds of the state legislatures. In either case, the amendment must be ratified by three-fourths of the states.

The reason that the amendment process was made difficult was that it enables our legal system to remain relatively stable in the presence of changing popular sentiment and protects the rights of the minority from the tyranny of the majority. However, it should be noted that even with this safeguard, the Constitution hasn’t been entirely successful in protecting minority rights, as evidenced by the fact that slavery, which is clearly inconsistent with the Bill of Rights, persisted for the better part of a century after the ratification of the Constitution.

A downside of the difficulty of amending the Constitution is that it enables a determined minority to block changes that would benefit the majority. In order to deal with this situation, we can make use of a technique used by Congress to pass legislation. Bills that could not get a majority vote when considered separately are sometimes bundled together so that the resulting package of legislation can garner sufficient support to pass. Accordingly, it is herein recommended that the Constitution be rewritten, incorporating the changes described below.

1. As discussed in my article Governing Philosophies, a libertarian government is the one regime that offers its citizens the maximum amount of freedom compatible with maintaining a civilized society, so it is herein proposed that our country adopt this form of government.

2. Unless otherwise stated, the policies proposed herein shall apply, mutatis mutandis, to state and local governments as well.

3. The governing principle shall be that individuals are allowed to do as they please, so long as they don’t harm others, or put others at risk of harm without the informed consent of the latter.

4. All laws shall contain a statement describing the harm that they are designed to prevent or mitigate, as well as a sunset provision.

5. The government shall be responsible for providing those and only those services that (1) are essential and (2) cannot be provided by the private sector. This requirement would, for example, prohibit public education, since education, while essential, can be provided by the private sector.

6. All forms of taxation are prohibited. Instead, the government is to finance the services that it provides by user fees in cases where it is possible to allocate the cost of providing those services to the recipients of those services, for example, a license fee required to drive on the public roads. Services that cannot be selectively provided to individual users (e.g., national defense) shall be funded by a national condominium fee, collected, say, quarterly (like estimated taxes) in equal amount from each citizen, the payment of which would be required in order to vote in national elections.

7. All government regulations, fees, and services provided shall apply equally to all persons regardless of race, religion, national origin, age, gender, sexual orientation, disability, or similar non-merit factors, as well as financial status. Private organizations, by contrast, are free to select their employees and clientele on any basis that they choose.

8. The Golden Rule. Unless we are at war, as declared by Congress, with another country or non-national entity (e.g., ISIS), our government shall not engage in espionage, covert operations, or any other hostile actions against said entity that would be illegal under our laws if directed against us.

9. Our elected representatives have a duty to act in the best interest of the citizens who elected them, which may not necessarily coincide with the best interests of people in the rest of the world.

10. The Electoral College, which is a relic of a bygone era, shall be replaced by a popular vote for national elections. Where there are more than two candidates, the instant-runoff voting method shall be used to determine the winner.

11. The federal budget shall be balanced, except in the case of a dire emergency and then only with the approval of two-thirds of both houses of Congress as well as the president.

12. For the reasons discussed in my article A Proposed Method of Eliminating Inflation, we shall adopt the gold standard, with the gram of gold being our basic unit of currency. The federal government shall issue gold certificates, which will be redeemable on demand at a bank for the equivalent gold for at most a small transaction fee.

Now, let’s examine how our laws and policies would be affected by the principles stated above. To begin with, government entitlements would be eliminated by Article 5 because all of the services provided by such entitlements can be provided by the private sector. Furthermore, since means testing is generally used to determine eligibility for entitlement programs, such entitlements would likewise run afoul of Article 7, which prohibits the government from treating people differently based on their financial status. (Private charities, by contrast, would be free to means-test applicants for assistance.)

Article 7 also prohibits government affirmative action programs that give preferential treatment to racial minorities and women, as well as handicapped parking, which gives preferential treatment to the disabled. The government could accommodate the disabled without violating Article 7 by converting the current handicapped parking spaces to premium metered parking spaces. While these premium parking spaces would be available to everyone, they would be used mainly by the disabled because most able-bodied people would be willing to walk some extra distance in order to avoid paying the parking fee.

Article 7 prohibits the government from treating people differently based on their ages. Would this not require the government to treat adults and children equivalently? If so, how can this be reconciled with the requirement that individuals give informed consent for activities that put them at risk of harm, such as having sex or using recreational drugs, since children generally lack the mental maturity needed to give informed consent? The reader is invited to ponder this question before reading further.

To resolve the apparent inconsistency described in the paragraph above, we begin by observing that while age itself is a non-merit factor, it is generally used as a surrogate for level of maturity, usually mental maturity. The reason for this is that while a person’s age is very easy to determine, assessing one’s degree of maturity is more problematic.

One of the problems associated with using age as a surrogate for maturity is that people mature at different rates. This raises questions such as whether a 10-year-old with the mental ability of the average 20-year-old should be treated like a child or an adult; same question regarding a 20-year-old with the mental ability of the average 10-year-old.

To continue to use age as a surrogate for maturity, even in limited cases, is to sacrifice principle on the altar of expediency. We can avoid doing so by instead directly assessing the competence of the individual to engage in the activity or perform the task under consideration. For example, we can safely eliminate the age requirement for obtaining a driver’s license because passing the required written test as well as the driving test demonstrate that the applicant is competent to operate the motor vehicle and is familiar with the rules of the road. Similarly, there is no need for age requirements for becoming president or serving in Congress; getting elected should be sufficient qualification.

As discussed in my article Electing Our Representatives, the age requirement for voting should be replaced by the requirement to pass the same citizenship test that is given to immigrants applying for citizenship in the United States. Special tests would need to be devised to determine when a person has attained the level of mental maturity necessary to be able to give informed consent and have the privileges and responsibilities of an adult. The widespread use of such tests would make them susceptible to being compromised. To prevent this, the method described in my article Our System of Education: The Problems With It and How It Can Be Improved to eliminate cheating on tests could be used.

As advocated in my article Curbing Gun Violence, the government may impose reasonable restrictions on the possession and use of a firearm. Such restrictions are in accordance with Article 3 since the possession of a gun by someone incompetent to use it or likely to use it against other people (except in self-defense) clearly puts others at risk of harm. Reasonable requirements for gun ownership include registration of the weapon, a criminal background check, and passing a test or tests to obtain a gun owner’s license. The tests would require the applicant to demonstrate competence in using the gun as well as knowledge of the applicable regulations regarding the use of firearms.

As recommended in my article Dealing With the Immigration Problem and in accordance with Article 9, we should eliminate refugee and asylum status, automatic citizenship by birth, and quotas by national origin. We should give priority to applicants for citizenship who are likely to maximally benefit our country.

As per Article 3, there should be no restrictions on sexual behavior or recreational drug use other than that the requirement of informed consent shall apply. This includes sex between consenting adults, including prostitution. The sale of recreational drugs to adults would be legal provided that the drugs were unadulterated and that all potentially harmful side effects (e.g., tendency to be addictive) were disclosed.

The sale of organs (e.g., kidneys) would be permitted, provided there was informed consent on the part of the buyer and the seller. Euthanasia clinics could be established to provide adults with the opportunity to terminate their lives if they so choose. An obvious reason for opting for euthanasia would be if a person had a terminal illness that was reducing his quality of life to the point where he judged that his life was no longer worth living. Another likely candidate for euthanasia would be a destitute person who was unable to obtain sufficient assistance from friends, family, or private charities to support himself. Those unable to pay the fee required for euthanasia could instead sign over to the euthanasia clinic the right to use or sell their body parts (after they’re dead, of course). Their blood and organs could be sold to hospitals, the latter to be used for transplants, while their flesh could be sold as meat to those who are able to overcome their culturally-conditioned aversion to cannibalism.

Article 8 would prohibit our government from engaging in most forms of espionage and covert operations against another country with which we are not at war. One might argue that this restriction would put us at a disadvantage with respect to other countries that engage in such actions directed against our country. To deal with this situation, we could convene a meeting of the United Nations for the member nations to establish a set of international laws spelling out the permitted and prohibited practices regarding espionage and covert operations. For example, gathering signal intelligence using listening posts outside of the territorial limits of the country being monitored would probably be permitted, whereas infiltrating spies into another country in order to obtain military secrets of the latter would almost certainly be prohibited. Those countries found to be in violation of these laws would be subject to sanctions as well as possible retaliation by the countries that were the victims of such violations.



Stanley Korn

I write on a variety of subjects, mainly oriented toward solving problems and recommending improvements. My short stories include science fiction and fantasy.