US Constitutional Amendments I'd propose

[Ralin]

3) No person convicted of a crime shall be punished until all judicial appeals are exhausted. Appeals shall be conducted without undue delay.

How does this work for violent offenders ?

What about fraudsters using their victims money to pay for appeals they know will not succeed ?

I'd like to hear an explanation of why this is a good idea.

[Simon_Jester]

Number one is a little scary. With enough popular fear-mongering you could easily initiate mob rule.

I'm not sure how that proposal makes that any more likely than the present convention system.

For one, it doesn't define a time period- states which ratify an amendment and repent of it later might still count as having ratified. Another problem is the part where you really only need 50% of the population to amend the constitution, which is a good deal worse than the current system if you're worried about mob rule.

Polish law demands you do not publish the full name or image of the accused until they are convincted, and it works fine.

German law does as well, but none of our justice system is structured like the US.

It because doing something like that is responsible and makes sense, which means it would be immediately shouted down and demonized as being something a soshalist (read: nonmurrican) country does and denies media outlets their Father, Son and Holy Spirit given right to make a profit.

Stop, breathe.

I don't think it's quite that simple. Even if you must find a cynical explanation, I don't think it's that simple.

And, hm...

6) In all lawsuits, money contributed to legal representation shall be divided evenly among all parties. Money submitted for legal representation that goes unused by any party shall be used to fund attorneys for the public defense.

To amendments to reduce the cost of court cases. Then you you propose one that raises the costs by funding public defenders through the amount the parties pay to their lawyers through a layer of bureaucracy. Wouldn't it be better to just fund the public defenders through taxes ?

What does this mean? Does it mean that the final settlement award's money goes to both parties' legal representation? What if NO money is awarded, as often happens?

Does it mean that both parties are required to pay into a common legal fund? If so, that's a great tactic for spending the other guy into the ground, if you have a pricier lawyer and more money than he does.

[bilateralrope]

I took it as meaning both parties pay money into a common fund. But it's worse than just making the other party pay for your expensive lawyer. If money is put into that fund, but not spent, it doesn't get refunded. So if you convince the other person that your lawyer is more expensive that he actually is, you can spend the other guy into the ground with a cheap lawyer.

Then there is the problem of your lawyer secretly giving some of the money back to you in order to claim a rate higher than what you're actually paying him once you factor in the cashback.

3) No person convicted of a crime shall be punished until all judicial appeals are exhausted. Appeals shall be conducted without undue delay.

How does this work for violent offenders ?

What about fraudsters using their victims money to pay for appeals they know will not succeed ?

I'd like to hear an explanation of why this is a good idea.

I'm not saying it's a good idea. I'm asking those questions because it seems like a very bad idea.

[Ralin]

I'm not saying it's a good idea. I'm asking those questions because it seems like a very bad idea.

That was aimed at the OP. Sorry if I was unclear.

[ZOmegaZ]

2) Persons arrested or charged with crimes have the right to privacy until convicted. No person accused of a crime shall have their name publicly released until and unless they are convicted. Purposeful violation of the privacy of the accused without their written consent, filed with the court, shall be punishable by law.

This one will need fine tuning to strike the right balance between the privacy of the accused and protecting the general public. Meaning I doubt the first published version will need to be changed, maybe due to it having problems with the first attempt, maybe because society changes and it needs to be updated. Since changing the US constitution is hard, I don't think this is appropriate as a constitutional amendment. Leave it as a law.

A reasonable position. Perhaps a more general comment would be in order, that the accused as a right to privacy until convicted, but leaving the implementation up to the politicians/courts of the day?

3) No person convicted of a crime shall be punished until all judicial appeals are exhausted. Appeals shall be conducted without undue delay.

How does this work for violent offenders ?

What about fraudsters using their victims money to pay for appeals they know will not succeed ?

Yeah, good point. there would need to be exceptions for public safety, victim safety, flight risk, the same exceptions that apply to keeping someone in jail before trial.

4) Every jurisdiction shall have sufficient judges and public defenders to ensure swift justice for all in that jurisdiction, including appeals. These positions shall be funded as necessary by the relevant jurisdiction, with a dedicated funding source.

5) No fees shall be charged for access to the courts.

6) In all lawsuits, money contributed to legal representation shall be divided evenly among all parties. Money submitted for legal representation that goes unused by any party shall be used to fund attorneys for the public defense.

To amendments to reduce the cost of court cases. Then you you propose one that raises the costs by funding public defenders through the amount the parties pay to their lawyers through a layer of bureaucracy. Wouldn't it be better to just fund the public defenders through taxes ?

What happens in cases where one party has greater costs than the other because their side of the case is more expensive ?
For example, one side needs more research into relevant laws than the other.

Public defenders only apply to criminal law, I thought. Am I mistaken? 6) was intended to apply to civil suits.

7) All persons in the US shall have full access to the US justice system at all times, including class-action suits, regardless of prior contractual obligations. Any clause of a contract which denies either party access to a court of law for redress of grievance, is hereby invalid.[/b]

This one needs a lot more detail before I can judge it.

The idea was to eliminate clauses in contracts that forbid class-action suits, requiring each person to sue individually or go through binding arbitration.

[ZOmegaZ]

I'd like to hear an explanation of why this is a good idea.

Let me reverse the question: why is it a good idea for someone to be punished, then spend years in jail working through the appeals system, only to later be found innocent? Justice needs to be faster, and also not punish (any more than absolutely necessary) the innocent through its slowness.

[ZOmegaZ]

Number one is a little scary. With enough popular fear-mongering you could easily initiate mob rule.

I'm not sure how that proposal makes that any more likely than the present convention system.

For one, it doesn't define a time period- states which ratify an amendment and repent of it later might still count as having ratified. Another problem is the part where you really only need 50% of the population to amend the constitution, which is a good deal worse than the current system if you're worried about mob rule.

All of which can be said about amendments proposed by a convention. The only difference is that now instead of a convention proposing the amendment, you need 3/4 of the states to have 50% of the population, AND those states have to approve the amendment by popular referendum instead of by government decree. Not to say that what I've proposed is perfect, but it should be safer against mob rule, not more susceptible to it.

And, hm...

6) In all lawsuits, money contributed to legal representation shall be divided evenly among all parties. Money submitted for legal representation that goes unused by any party shall be used to fund attorneys for the public defense.

To amendments to reduce the cost of court cases. Then you you propose one that raises the costs by funding public defenders through the amount the parties pay to their lawyers through a layer of bureaucracy. Wouldn't it be better to just fund the public defenders through taxes ?

What does this mean? Does it mean that the final settlement award's money goes to both parties' legal representation? What if NO money is awarded, as often happens?

Does it mean that both parties are required to pay into a common legal fund? If so, that's a great tactic for spending the other guy into the ground, if you have a pricier lawyer and more money than he does.

Both parties have to contribute into the same legal fund, but neither party is obligated to contribute. If I want to spend ten million dollars on lawyers, and the other side wants to spend nothing at all, they get five of my ten million to pay for their legal team. That means I can't spend them into the ground, which is the goal. Both sides get evenly-priced representation, regardless of how much money they actually have, making justice more easily available to the poor and less lopsided towards the rich. And it's all got to be done under court supervision, to avoid any kickbacks. Any unspent money goes to fund the court system.

[Ralin]

I'd like to hear an explanation of why this is a good idea.

Let me reverse the question: why is it a good idea for someone to be punished, then spend years in jail working through the appeals system, only to later be found innocent? Justice needs to be faster, and also not punish (any more than absolutely necessary) the innocent through its slowness.

There's an organizational limit to how fast appeals can be handled though, and it doesn't seem right to me that someone convicted of a serious crime can delay their sentence for years or even indefinitely. Plus wouldn't this mean they couldn't be imprisoned during the trial? That poses problems too.

[ZOmegaZ]

You're entirely right. Like I said to bilateralrope, you'd have to both speed up the appeals system dramatically (which should happen anyway) and have the same exceptions for public safety and flight risks that apply to the accused pre-trial.

[Simon_Jester]

All of which can be said about amendments proposed by a convention. The only difference is that now instead of a convention proposing the amendment, you need 3/4 of the states to have 50% of the population, AND those states have to approve the amendmted is perfect, but it should be safer against mob rule, not more susceptible to it.

The main difference I see is that a legislature in general may be restrained in supporting a thing that (for now) has the backing of 52% of the population. It isn't holding very well in America today, where there is very little correlation between the popularity of an idea and the legislator's willingness to support it. But it held in the US before, it holds in other countries, and I'm not at all sure we should permanently amend our constitution to deal with a problem that's only cropped up in the past twenty years.

If we look at the way amendments actually are proposed in America (pretty much every single one has gone through Congress and then through the legislatures), we see something else too. We see some safeguards in place that you would remove.

As noted, a legislature is on average more likely to be restrained than a referendum. But beyond that, we see that your actual proposal (1) moves the bar for passing an amendment from 3/4 of the legislatures to a majority of the voters in states totaling 1/2 the population. Potentially, an amendment could pass by referendum with only 30-40% popular support in the country, if enough state legislatures vote it in.

The problem here is that you replace a requirement for passing an amendment (3/4 of legislatures after 2/3 of Congress proposes, or 2/3 of legislatures call for a convention), into a requirement for proposing one. And once an amendment is proposed, it can in theory stay in limbo indefinitely, waiting for some future time at which a ratification referendum can yell "SURPRISE!"

Also, I have to ask:

Given that no amendment has ever passed without Congress's involvement, why do you think it a priority to create new amendment protocols that bypass Congress? Do you think it realistic that these protocols will be used?

And, hm...

6) In all lawsuits, money contributed to legal representation shall be divided evenly among all parties. Money submitted for legal representation that goes unused by any party shall be used to fund attorneys for the public defense.

What does this mean? Does it mean that the final settlement award's money goes to both parties' legal representation? What if NO money is awarded, as often happens?

Does it mean that both parties are required to pay into a common legal fund? If so, that's a great tactic for spending the other guy into the ground, if you have a pricier lawyer and more money than he does.

Both parties have to contribute into the same legal fund, but neither party is obligated to contribute. If I want to spend ten million dollars on lawyers, and the other side wants to spend nothing at all, they get five of my ten million to pay for their legal team. That means I can't spend them into the ground, which is the goal. Both sides get evenly-priced representation, regardless of how much money they actually have, making justice more easily available to the poor and less lopsided towards the rich. And it's all got to be done under court supervision, to avoid any kickbacks. Any unspent money goes to fund the court system.[/quote]You missed a few things. To understand the problem, bear in mind what this really does, by your own admission. What this actually does is guarantee that rich plaintiffs are stuck paying the legal bills of poor defendants, and vice versa.

1) The problem with forcing rich plaintiffs to pay the legal bills of poor defendants is that it can very easily make it unprofitable to even seek damages from a person who, say, breaks your plate glass window. Sometimes rich people and corporations do have valid reasons to seek relief for damages through the courts against ordinary citizens.

2) The problem with forcing rich defendants to pay the legal bills of poor plaintiffs is that it encourages spurious lawsuits against the rich, because there's very little cost to doing so. You sue, and if the defendant wants to have a lawyer, he must correspondingly pay your lawyer. Court costs are covered.

In both cases, it would be much better to have more state-subsidized legal support for the poor.

You're entirely right. Like I said to bilateralrope, you'd have to both speed up the appeals system dramatically (which should happen anyway) and have the same exceptions for public safety and flight risks that apply to the accused pre-trial.

The fundamental problem here is that trying to speed up the appeals process that much will tend to reduce its quality. There are very few appellate judges, they are carefully chosen, and they review their courses carefully before deciding whether or not to accept them. There are good reasons to want all those things to remain the case.

[bilateralrope]

I'm thinking that the main problem with ZOmegaZ's ideas is that he's trying for simple solutions to problems. I saw a blog post the other day titled The Law is Complicated Because Reality is Complicated that explains why simple solutions are usually a bad idea when you're talking about the law.

Public defenders only apply to criminal law, I thought. Am I mistaken? 6) was intended to apply to civil suits.

Which types of lawsuits 6) applies to doesn't matter. What matters is that it increases the cost of a lawsuit by not refunding any excess money in the mutual defense fund. Instead, it confiscates that money and uses it elsewhere.

[ZOmegaZ]

I'm thinking that the main problem with ZOmegaZ's ideas is that he's trying for simple solutions to problems. I saw a blog post the other day titled The Law is Complicated Because Reality is Complicated that explains why simple solutions are usually a bad idea when you're talking about the law.

No question. I'm a big fan of "as simple as possible, but no simpler." So I tend to start with a simple solution, and then get more complex as necessary. Really appreciate everyone pointing out where that might be.

Public defenders only apply to criminal law, I thought. Am I mistaken? 6) was intended to apply to civil suits.

Which types of lawsuits 6) applies to doesn't matter. What matters is that it increases the cost of a lawsuit by not refunding any excess money in the mutual defense fund. Instead, it confiscates that money and uses it elsewhere.

My thinking was that it wouldn't increase the cost of the lawsuit. Right now there's an incentive to spend the most possible money on lawyers, because it helps win the case. This would reduce that incentive. Not getting the money back was... actually, right now I can't think of a convincing argument for that. You obviously can't let the poorer person keep the money the richer party spent on their defense. But I can't think of a reason not to refund it to the richer party. Obviously either past-me or present-me is having a brainfart.

[ZOmegaZ]

As noted, a legislature is on average more likely to be restrained than a referendum. But beyond that, we see that your actual proposal (1) moves the bar for passing an amendment from 3/4 of the legislatures to a majority of the voters in states totaling 1/2 the population. Potentially, an amendment could pass by referendum with only 30-40% popular support in the country, if enough state legislatures vote it in.

That's true. Perhaps the numbers need some tuning.

The problem here is that you replace a requirement for passing an amendment (3/4 of legislatures after 2/3 of Congress proposes, or 2/3 of legislatures call for a convention), into a requirement for proposing one. And once an amendment is proposed, it can in theory stay in limbo indefinitely, waiting for some future time at which a ratification referendum can yell "SURPRISE!"

A good point. Happened with the 27th amendment. Probably should explicitly give a time limit on validity of ratification, and ability to rescind same.

Also, I have to ask:

Given that no amendment has ever passed without Congress's involvement, why do you think it a priority to create new amendment protocols that bypass Congress? Do you think it realistic that these protocols will be used?

I think it's more realistic than expecting any reform to pass Congress that in any way limits Congress's power.

1) The problem with forcing rich plaintiffs to pay the legal bills of poor defendants is that it can very easily make it unprofitable to even seek damages from a person who, say, breaks your plate glass window. Sometimes rich people and corporations do have valid reasons to seek relief for damages through the courts against ordinary citizens.

Then the rich plaintiff should get a cheap lawyer (or no lawyer!) for both parties. If it's a simple obvious case there's no need for it to cost that much.

2) The problem with forcing rich defendants to pay the legal bills of poor plaintiffs is that it encourages spurious lawsuits against the rich, because there's very little cost to doing so. You sue, and if the defendant wants to have a lawyer, he must correspondingly pay your lawyer. Court costs are covered.

But again, if it's a spurious suit, the defendant can elect to have a cheap lawyer. Though I agree that there needs to be a cost for filing garbage suits. It just shouldn't be a cost to file any suit. The disincentive needs to be targeted.

You're entirely right. Like I said to bilateralrope, you'd have to both speed up the appeals system dramatically (which should happen anyway) and have the same exceptions for public safety and flight risks that apply to the accused pre-trial.

The fundamental problem here is that trying to speed up the appeals process that much will tend to reduce its quality. There are very few appellate judges, they are carefully chosen, and they review their courses carefully before deciding whether or not to accept them. There are good reasons to want all those things to remain the case.

Can we put numbers on the value of having few, highly qualified appellate judges? And then compare that value against the cost of keeping innocent people in jail waiting on their appeals because we have so few? That would seem to be the correct means of determining which is the proper course.

[ZOmegaZ]

Second batch of amendment proposals. Mainly intended to work against the procedural games Congress plays. Single subject bills, eliminating the debt ceiling as a separate concept from spending, snap elections instead of government shutdown, an end-run around a speaker who won't bring a bill to the floor, and quorum rules. (The Palm Sunday Compromise has bothered me for years, and I'm probably the only one that's bothered for this particular reason...)

Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.

9) If Congress passes a law authorizing spending, that law shall also be construed to authorize any borrowing necessary to execute such spending.

10) In the event of a failure of the Congress to pass a bill funding ongoing government operations, all congresspersons shall be immediately subject to election, to be held within twelve weeks of the end of the previous spending law. If the Congress passes a bill funding government operations, and the President fails to sign said bill, the President shall also be subject to election. If the Congress overrides a Presidential veto of such a bill, only the President shall be subject to election.

In any interim between laws authorizing spending, the funding levels from the previous spending law shall continue to apply.

11) Any other rules of order notwithstanding, in the event that a majority the members of either chamber of Congress officially declares their approval of a bill, by sponsorship or other means, that bill shall be deemed to have been passed by that chamber.

12) Neither chamber of Congress shall conduct business without a majority of its members participating.

[bilateralrope]

I'm thinking that the main problem with ZOmegaZ's ideas is that he's trying for simple solutions to problems. I saw a blog post the other day titled The Law is Complicated Because Reality is Complicated that explains why simple solutions are usually a bad idea when you're talking about the law.

No question. I'm a big fan of "as simple as possible, but no simpler." So I tend to start with a simple solution, and then get more complex as necessary. Really appreciate everyone pointing out where that might be.

Then stick to fine tuning your first suggestions before you throw out new ones.

Also, look into how other countries handle the same problem. Copying a working solution is probably better than coming up with a new one.

[Simon_Jester]

I'm thinking that the main problem with ZOmegaZ's ideas is that he's trying for simple solutions to problems. I saw a blog post the other day titled The Law is Complicated Because Reality is Complicated that explains why simple solutions are usually a bad idea when you're talking about the law.

No question. I'm a big fan of "as simple as possible, but no simpler." So I tend to start with a simple solution, and then get more complex as necessary. Really appreciate everyone pointing out where that might be.

The thing to remember is that constitutional amendments are supposed to be simple, because they are broad directives that establish broad, categorical rights... or because they define a precise procedure that must always be followed.

So a constitutional amendment establishing a right to privacy is a good example of how to do it right. A constitutional amendment which, because of the need for a right to privacy, expressly bans details about how national intelligence/security agencies operate, is bad. That's not because barring the CIA from doing drone strikes on US soil is wrong- such a ban is fine. It's because any such detailed prohibition or requirement will have lots of unintended consequences, and will become dated with time until the unintended consequences are the only functional consequences of the amendment.

My thinking was that it wouldn't increase the cost of the lawsuit. Right now there's an incentive to spend the most possible money on lawyers, because it helps win the case.

No, in many cases there's the opposite- an incentive to settle out of court or plea-bargain to avoid a costly legal battle that you might lose.

That's true. Perhaps the numbers need some tuning.

Or your fundamental assumptions do: why do you consider this idea important enough to justify rewriting the Constitution of the United States?

I think it's more realistic than expecting any reform to pass Congress that in any way limits Congress's power.

By your own argument, though, this amendment would therefore never pass.

A good point. Happened with the 27th amendment. Probably should explicitly give a time limit on validity of ratification, and ability to rescind same.

Probably- but bear in mind that if you find yourself having to add too many complex features to an amendment in order for it to work, it probably wasn't a good amendment.

"The right to freedom of speech shall not be infringed" or something like that is a good amendment because it is simple and leaves the details of interpretation up to the courts. If your amendment does not work without extensive interpretation, you need to rethink your starting assumptions, not just try to hardcode the 'right' interpretation into the law books in advance.

1) The problem with forcing rich plaintiffs to pay the legal bills of poor defendants is that it can very easily make it unprofitable to even seek damages from a person who, say, breaks your plate glass window. Sometimes rich people and corporations do have valid reasons to seek relief for damages through the courts against ordinary citizens.

Then the rich plaintiff should get a cheap lawyer (or no lawyer!) for both parties. If it's a simple obvious case there's no need for it to cost that much.

Uh... no it's not?

Put this way, if I'm going to sue someone I want to win. I want to win not only because I want my damages award, but because I want to deter other people from wronging me. Which is exactly what the legal system is for in the first place- to convince people that cheating and harming each other is both wrong and unprofitable.

If I find myself suing for damages against someone with less money than me, it is probably for a good reason, and I won't want my case botched by a cheap lawyer. Since the plaintiff usually faces burden of proof on all important facts in the case, they need someone who knows what they're doing.

2) The problem with forcing rich defendants to pay the legal bills of poor plaintiffs is that it encourages spurious lawsuits against the rich, because there's very little cost to doing so. You sue, and if the defendant wants to have a lawyer, he must correspondingly pay your lawyer. Court costs are covered.

But again, if it's a spurious suit, the defendant can elect to have a cheap lawyer.

That would be idiotic. Even if the suit is ill-grounded, you might still lose. Moreover, as a rule you won't even know the suit is ill-grounded until your lawyer has advised you so; bad lawyers will be wrong about this a lot.

Another point- you may not know that good lawyers like to have clients keep them 'on retainer' as part of permanent business relationships. They're not going to want to work with someone who sails in five minutes before trial, nor with someone who might randomly decide to hire a cheap lawyer to cut court costs by limiting what his opponent can spend.

So just to secure good legal counsel at all you're going to have to start following certain standards of quality overall, which means paying court costs accordingly.

The fundamental problem here is that trying to speed up the appeals process that much will tend to reduce its quality. There are very few appellate judges, they are carefully chosen, and they review their courses carefully before deciding whether or not to accept them. There are good reasons to want all those things to remain the case.

Can we put numbers on the value of having few, highly qualified appellate judges? And then compare that value against the cost of keeping innocent people in jail waiting on their appeals because we have so few? That would seem to be the correct means of determining which is the proper course.

The question here is whether appeals judges exist chiefly to correct mistakes made by the lower courts, or to rule on points of law and procedure. Honestly, if the lower courts are making that many mistakes, fix the lower courts, not the appeals courts.

Conversely, if you want an appeals court with good jurists on it, who can make well-founded, binding legal decisions respected by all parties... you have to be selective, both about the cases you hear and when you hear them.

[Simon_Jester]

Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.

Since most pork is placed in general appropriation bills anyway, and "bills for the codification and general revision of the laws" is stupidly vague, this amendment accomplishes nothing.

9) If Congress passes a law authorizing spending, that law shall also be construed to authorize any borrowing necessary to execute such spending.

Now see, abolishing the debt ceiling as a concept is actually an interesting idea. Most other countries don't have one; they just have a legislature sensible enough to quit borrowing when they need to.

10) In the event of a failure of the Congress to pass a bill funding ongoing government operations, all congresspersons shall be immediately subject to election, to be held within twelve weeks of the end of the previous spending law. If the Congress passes a bill funding government operations, and the President fails to sign said bill, the President shall also be subject to election.

Does this reset the terms for senators? Remember that at the moment and by design, only 1/3 of senators are up for election in a given year. If we kept the terms after this, that would change and all senators would be eligible for reelection simultaneously in six years... which would make that one hell of an election.

If the Congress overrides a Presidential veto of such a bill, only the President shall be subject to election.

If Congress overrides a presidential veto, then the bill has passed, and this serves only to punish the President for disagreeing with 2/3 of Congress.

11) Any other rules of order notwithstanding, in the event that a majority the members of either chamber of Congress officially declares their approval of a bill, by sponsorship or other means, that bill shall be deemed to have been passed by that chamber.

Bad idea. One, it lends itself to subterfuge. Official votes exist for a reason, not least to ensure that everyone knows the vote is actually happening.

And two, you are now detailing parliamentary rules within the congress. While tempting in the light of recent events, this is still a very bad idea in the long run.

12) Neither chamber of Congress shall conduct business without a majority of its members participating.

You do know what a "quorum" is? Look it up and ask if this is even vaguely necessary, or if you should be trying to draft legislation when you don't know what's on the books.

[ZOmegaZ]

The thing to remember is that constitutional amendments are supposed to be simple, because they are broad directives that establish broad, categorical rights... or because they define a precise procedure that must always be followed.

So a constitutional amendment establishing a right to privacy is a good example of how to do it right. A constitutional amendment which, because of the need for a right to privacy, expressly bans details about how national intelligence/security agencies operate, is bad. That's not because barring the CIA from doing drone strikes on US soil is wrong- such a ban is fine. It's because any such detailed prohibition or requirement will have lots of unintended consequences, and will become dated with time until the unintended consequences are the only functional consequences of the amendment.

I agree with what you're saying. I would argue that there's a point at which what we have now is too simple, because it allows serious end-runs around the clear intent. For example, what's an "unreasonable search"? Well, the courts decided that, and in such a way that a lot of clearly very bad searching still goes on. So for that, I'd say the language of the Constitution should be expanded to clarify the actual limits as intended by the American people.

My thinking was that it wouldn't increase the cost of the lawsuit. Right now there's an incentive to spend the most possible money on lawyers, because it helps win the case.

No, in many cases there's the opposite- an incentive to settle out of court or plea-bargain to avoid a costly legal battle that you might lose.

Both incentives exist, and both are bad. Whether you go to court or settle should (in an ideal world) not be a matter of whether you can afford the court battle. That just leads to extortion lawsuits, which are another reason I proposed that particular amendment.

By your own argument, though, this amendment would therefore never pass.

True enough. Historically, there's never been an Article V convention, mainly due to a lot of lies spread about the powers of one. But we've come close. As I recall, at least one amendment only got through Congress, not because they agreed with it, but because there was so much popular support there would have been a convention if they hadn't!

A good point. Happened with the 27th amendment. Probably should explicitly give a time limit on validity of ratification, and ability to rescind same.

Probably- but bear in mind that if you find yourself having to add too many complex features to an amendment in order for it to work, it probably wasn't a good amendment.

"The right to freedom of speech shall not be infringed" or something like that is a good amendment because it is simple and leaves the details of interpretation up to the courts. If your amendment does not work without extensive interpretation, you need to rethink your starting assumptions, not just try to hardcode the 'right' interpretation into the law books in advance.

I think there are times for generality, and times for specificity. Most of these amendments I'm suggesting are about fixing specific, observed problems. One of which is that the people have no workable end-run around an unresponsive Congress. If you're going to add one, that's the kind of thing that needs to be specific, in the same way that the original articles of the Constitution are specific.

So rights should probably lend towards breadth. Actual functional procedure needs detail.

1) The problem with forcing rich plaintiffs to pay the legal bills of poor defendants is that it can very easily make it unprofitable to even seek damages from a person who, say, breaks your plate glass window. Sometimes rich people and corporations do have valid reasons to seek relief for damages through the courts against ordinary citizens.

Then the rich plaintiff should get a cheap lawyer (or no lawyer!) for both parties. If it's a simple obvious case there's no need for it to cost that much.

Uh... no it's not?

Put this way, if I'm going to sue someone I want to win. I want to win not only because I want my damages award, but because I want to deter other people from wronging me. Which is exactly what the legal system is for in the first place- to convince people that cheating and harming each other is both wrong and unprofitable.

If I find myself suing for damages against someone with less money than me, it is probably for a good reason, and I won't want my case botched by a cheap lawyer. Since the plaintiff usually faces burden of proof on all important facts in the case, they need someone who knows what they're doing.
[/quote]

I don't disagree with what you've said. I'm thinking there may be a miscommunication? Under my proposal, rich people would have to pay twice the legal bills to sue a destitute person (all other things being equal). But that in exchange, we get a system that is not quite so obscenely bent towards the rich. I find this to be a reasonable exchange. Do you not? Or are you pointing out some other flaw?

2) The problem with forcing rich defendants to pay the legal bills of poor plaintiffs is that it encourages spurious lawsuits against the rich, because there's very little cost to doing so. You sue, and if the defendant wants to have a lawyer, he must correspondingly pay your lawyer. Court costs are covered.

But again, if it's a spurious suit, the defendant can elect to have a cheap lawyer.

That would be idiotic. Even if the suit is ill-grounded, you might still lose. Moreover, as a rule you won't even know the suit is ill-grounded until your lawyer has advised you so; bad lawyers will be wrong about this a lot.
[/quote]

A good point. Okay, so there's got to be some base level of evaluation that's either free to the poor, or free to both parties. A pre-trial, similar to a grand jury, deciding whether the case is even worth seeing a real court?

Another point- you may not know that good lawyers like to have clients keep them 'on retainer' as part of permanent business relationships. They're not going to want to work with someone who sails in five minutes before trial, nor with someone who might randomly decide to hire a cheap lawyer to cut court costs by limiting what his opponent can spend.

So just to secure good legal counsel at all you're going to have to start following certain standards of quality overall, which means paying court costs accordingly.

Good points. So we get back to "rich person's legal costs are now potentially doubled".

The question here is whether appeals judges exist chiefly to correct mistakes made by the lower courts, or to rule on points of law and procedure. Honestly, if the lower courts are making that many mistakes, fix the lower courts, not the appeals courts.

Conversely, if you want an appeals court with good jurists on it, who can make well-founded, binding legal decisions respected by all parties... you have to be selective, both about the cases you hear and when you hear them.

Persuasive.

[ZOmegaZ]

Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.

Since most pork is placed in general appropriation bills anyway, and "bills for the codification and general revision of the laws" is stupidly vague, this amendment accomplishes nothing.

It's not about pork, it's about eliminating irrelevant riders in general. Like, for the first example that comes to mind, the ACA taking over student loans. Many states have very similar single-subject requirements. I pulled this one from Montana. In retrospect I should have gone with Minnesota's vastly clearer version:

"No law shall embrace more than one subject, which shall be expressed in its title."

10) In the event of a failure of the Congress to pass a bill funding ongoing government operations, all congresspersons shall be immediately subject to election, to be held within twelve weeks of the end of the previous spending law. If the Congress passes a bill funding government operations, and the President fails to sign said bill, the President shall also be subject to election.

Does this reset the terms for senators? Remember that at the moment and by design, only 1/3 of senators are up for election in a given year. If we kept the terms after this, that would change and all senators would be eligible for reelection simultaneously in six years... which would make that one hell of an election.

Great point. I would think it should not reset their terms, nor should it contribute to any term limit rules that may be in effect otherwise.

If the Congress overrides a Presidential veto of such a bill, only the President shall be subject to election.

If Congress overrides a presidential veto, then the bill has passed, and this serves only to punish the President for disagreeing with 2/3 of Congress.

So say we have a situation where Congress passes a spending bill, and the President vetoes it specifically in an attempt to cause new elections. This would add a small disincentive to that behavior. But I can't think of realistic circumstances where it would matter. Probably should pull it, for simplicity.

11) Any other rules of order notwithstanding, in the event that a majority the members of either chamber of Congress officially declares their approval of a bill, by sponsorship or other means, that bill shall be deemed to have been passed by that chamber.

Bad idea. One, it lends itself to subterfuge. Official votes exist for a reason, not least to ensure that everyone knows the vote is actually happening.

And two, you are now detailing parliamentary rules within the congress. While tempting in the light of recent events, this is still a very bad idea in the long run.

There are times that parliamentary rules should be set by a body other than the one living by them.

And I'm not sure how this leads to subterfuge. I definitely agree it can lead to a majority over-running a minority, because it essentially removes filibustering and every other procedural game possible. I think I'd feel better about it if it was a super-majority required. But the fact that Congress can write its own rules such that they can not act at all, even when necessary, is a serious flaw. Much like amending the Constitution, there has to be some functional end-run around political failure.

12) Neither chamber of Congress shall conduct business without a majority of its members participating.

You do know what a "quorum" is? Look it up and ask if this is even vaguely necessary, or if you should be trying to draft legislation when you don't know what's on the books.

No need to get insulting. This has actually happened.
https://en.wikipedia.org/wiki/Palm_Sunday_Compromise
Passed the Senate 3-0, 97 not present. If that can happen, it needs to be fixed before something more broadly reaching passes by a vote of 1-0 in both chambers.

Another example, BTW, of why Congress shouldn't be allowed to set every last detail of its own rules of order.

[Simon_Jester]

I agree with what you're saying. I would argue that there's a point at which what we have now is too simple, because it allows serious end-runs around the clear intent. For example, what's an "unreasonable search"? Well, the courts decided that, and in such a way that a lot of clearly very bad searching still goes on. So for that, I'd say the language of the Constitution should be expanded to clarify the actual limits as intended by the American people.

Arguably so- but this risks the opposite problem. For instance, for many years in America, wiretapping without a warrant was quite legal (Olmstead v. United States) until that was overturned in 1967. The reason? The Fourth Amendment protects your property- but not the wires that connect your property to that of the person you're talking to.

The more detailed you make an amendment, the easier it is for its protections to become obsolete as technology and society change.

Both incentives exist, and both are bad. Whether you go to court or settle should (in an ideal world) not be a matter of whether you can afford the court battle. That just leads to extortion lawsuits, which are another reason I proposed that particular amendment.

The problem here is that we get 'reverse extortion:' the richer party to the lawsuit risks having to pay exorbitant fees to get a good lawyer. Getting a bad lawyer is theoretically a valid substitute, but it leaves the whole case more open to luck (i.e. said lawyer failing to think of an important defense). This is very bad if you don't want your innocence or guilt to be settled as a matter of luck.

So the richer party faces greatly increased costs to get competent legal counsel, and therefore has MORE incentive to settle out of court with the poorer party, or to simply decline to sue poorer parties in the first place because the cost of the legal counsel falls chiefly on the richer party.

Moreover, since you're proposing that both parties pay in advance for legal services that are only billed for after the trial, you run into a problem if the trial costs more than was anticipated.

By your own argument, though, this amendment would therefore never pass.

True enough. Historically, there's never been an Article V convention, mainly due to a lot of lies spread about the powers of one. But we've come close. As I recall, at least one amendment only got through Congress, not because they agreed with it, but because there was so much popular support there would have been a convention if they hadn't!

Right. My point is, what positive change do you actually expect to result from this modification to amendment proccesses?

I think there are times for generality, and times for specificity. Most of these amendments I'm suggesting are about fixing specific, observed problems. One of which is that the people have no workable end-run around an unresponsive Congress. If you're going to add one, that's the kind of thing that needs to be specific, in the same way that the original articles of the Constitution are specific.

So rights should probably lend towards breadth. Actual functional procedure needs detail.

Point, I suppose- but you want to be careful about going into

Put this way, if I'm going to sue someone I want to win. I want to win not only because I want my damages award, but because I want to deter other people from wronging me. Which is exactly what the legal system is for in the first place- to convince people that cheating and harming each other is both wrong and unprofitable.

If I find myself suing for damages against someone with less money than me, it is probably for a good reason, and I won't want my case botched by a cheap lawyer. Since the plaintiff usually faces burden of proof on all important facts in the case, they need someone who knows what they're doing.

I don't disagree with what you've said. I'm thinking there may be a miscommunication? Under my proposal, rich people would have to pay twice the legal bills to sue a destitute person (all other things being equal). But that in exchange, we get a system that is not quite so obscenely bent towards the rich. I find this to be a reasonable exchange. Do you not? Or are you pointing out some other flaw?

The main problem is that we need some way to force people to be willing to pay their share of the bills, and to be responsible about their use of billable hours, assuming they are able to do so.

In particular, I'm not clear whether you expect the legal fees to be paid before or after the trial. If before, we have a problem allocating expenses because there's an incentive to put less into the legal fund and expect the other party to pay most of the funds. If after, we have a problem because people know in advance what they'll have to pay and will gimmick to avoid it.

That would be idiotic. Even if the suit is ill-grounded, you might still lose. Moreover, as a rule you won't even know the suit is ill-grounded until your lawyer has advised you so; bad lawyers will be wrong about this a lot.

A good point. Okay, so there's got to be some base level of evaluation that's either free to the poor, or free to both parties. A pre-trial, similar to a grand jury, deciding whether the case is even worth seeing a real court?

Well, that already exists in a lot of cases- the problem is that it requires considerable legal expertise to prepare for such hearings.

Good points. So we get back to "rich person's legal costs are now potentially doubled".

My main problem with this is that it can make it practically impossible to sue poor people for damages. While suing poor people isn't something we like, they DO get into incidents that cause people real economic damages. You're not just doubling legal costs for multimillionaires, you're arguably doubling legal costs for a bar owner trying to sue a patron for damage to the furniture.

Persuasive.

Right. In most cases, the hearing of the district/whatever court should be final. Appeals courts are only supposed to be used when there are serious doubts as to the procedural or constitutional validity of the original ruling. Therefore, they need to be staffed by judges very good at constitutional law, with plenty of time to prepare, and who can carefully cherrypick their cases rather than becoming the momma everyone goes running to to whine and say "that plaintiff's being mean to me!"

[ZOmegaZ]

On property rights. Eliminating civil forfeiture and lowballed estimates for eminent domain. Also clarifying the line where government can regulate or outlaw weapons, and outlawing no-knock warrants.

13) Property shall only be taken from its owner without consent if that owner is convicted of a crime, or if just compensation is given. No other takings are permitted.

14) In cases where private property is taken for public use, what qualifies as just compensation for that property shall be determined by a judge.

15) Weapons which convey the ability to kill large numbers of people rapidly are subject to regulation or ban by federal or state governments.

16) Weapons which are useful for purposes including (but not limited to) sport and self-defense, but are not useful for killing large numbers of people quickly, are subject to regulation by state and federal governments. However, their ownership shall not be barred to any adult person except for conviction of a felony or declaration of mental incompetence by a court of law. Regulation may include limits on the manner and locations allowable for carrying and storing such weapons, so long as such regulations do not interfere with the right of ownership and legitimate use.

17) When executing warrants, arrests, or otherwise issuing legally binding instructions, law enforcement officers shall in all cases clearly identify themselves, their intent, and their duties, before execution of same.

[ZOmegaZ]

As noted, a legislature is on average more likely to be restrained than a referendum. But beyond that, we see that your actual proposal (1) moves the bar for passing an amendment from 3/4 of the legislatures to a majority of the voters in states totaling 1/2 the population. Potentially, an amendment could pass by referendum with only 30-40% popular support in the country, if enough state legislatures vote it in.

That's true. Perhaps the numbers need some tuning.

Reading back through these, I realized that I think there's some misunderstanding here. 3/4 of the states still have to ratify an amendment under this proposal; in addition to that requirement, half the states must have ratified by popular vote, and those half the states must represent half the population.

[Simon_Jester]

But there doesn't need to be a convention?

Also...

On property rights. Eliminating civil forfeiture and lowballed estimates for eminent domain. Also clarifying the line where government can regulate or outlaw weapons, and outlawing no-knock warrants.

13) Property shall only be taken from its owner without consent if that owner is convicted of a crime, or if just compensation is given. No other takings are permitted.

So, confiscation may not proceed in, say, a complex case against a corporation until conviction? What about freezing a fraudster's assets so he won't spend all the money he got via fraud? What about confiscating items as evidence? Does returning the item after the trial count as just compensation?

15) Weapons which convey the ability to kill large numbers of people rapidly are subject to regulation or ban by federal or state governments.

The definition of "large" and "rapidly" are going to need work. Does a semiautomatic pistol have this ability? A bolt-action rifle?

16) Weapons which are useful for purposes including (but not limited to) sport and self-defense, but are not useful for killing large numbers of people quickly, are subject to regulation by state and federal governments. However, their ownership shall not be barred to any adult person except for conviction of a felony or declaration of mental incompetence by a court of law. Regulation may include limits on the manner and locations allowable for carrying and storing such weapons, so long as such regulations do not interfere with the right of ownership and legitimate use.

What about restraining orders taken out against persons?

[ZOmegaZ]

But there doesn't need to be a convention?

Correct.

On property rights. Eliminating civil forfeiture and lowballed estimates for eminent domain. Also clarifying the line where government can regulate or outlaw weapons, and outlawing no-knock warrants.

13) Property shall only be taken from its owner without consent if that owner is convicted of a crime, or if just compensation is given. No other takings are permitted.

So, confiscation may not proceed in, say, a complex case against a corporation until conviction? What about freezing a fraudster's assets so he won't spend all the money he got via fraud? What about confiscating items as evidence? Does returning the item after the trial count as just compensation?

I would say that freezing assets and taking them are not the same thing, and that returning items after the trial would be just compensation.

15) Weapons which convey the ability to kill large numbers of people rapidly are subject to regulation or ban by federal or state governments.

The definition of "large" and "rapidly" are going to need work. Does a semiautomatic pistol have this ability? A bolt-action rifle?

Right. Going for "general" in this case, leaving the specifics up to the courts and legislatures of individual time and places.

16) Weapons which are useful for purposes including (but not limited to) sport and self-defense, but are not useful for killing large numbers of people quickly, are subject to regulation by state and federal governments. However, their ownership shall not be barred to any adult person except for conviction of a felony or declaration of mental incompetence by a court of law. Regulation may include limits on the manner and locations allowable for carrying and storing such weapons, so long as such regulations do not interfere with the right of ownership and legitimate use.

What about restraining orders taken out against persons?

Perhaps that's some legal detail I need to understand better. Are you actually convicted of something when there's a restraining order against you?

[Borgholio]

Are you actually convicted of something when there's a restraining order against you?

Not necessarily. The judge can simply determine that you're being a pain in the ass towards your ex-wife and tell you to stay 500 yards away and don't make any phone calls. No crime actually has to be committed.