Artful Articulations: August 2011

The fundamental flaw in our beloved Constitution, it seems to me after much deliberation about our out-of-control federal government, is the lack of an "Or Else" clause for violation of the document's strictures by those in high office, to include all elected officials (in either the Executive or Legislative branches), federal judges, and those bureaucrats in senior positions. What do I mean by an "Or Else" clause? Allow me to explain.

When Congress passes a criminal law, it both defines and describes the proscribed conduct or activity, and sets forth a punishment for violating said proscription. For example, when Congress passes a law making, say, bank robbery a crime, it defines what constitutes bank robbery, and specifies the penalty or punishment for those who commit the crime of bank robbery, say, ten years in prison. The law against bank robbery has an "Or Else" clause; don't commit bank robbery, or else you'll go to prison for ten years (I'm over-simplifying for present purposes, as the sentencing process under federal law is more complex that this). The "Or Else" is what serves as both a deterrent to those thinking about robbing a bank, and as a punishment for those who do.

Unfortunately, our Constitution does not have a meaningful "Or Else" clause for violation of its terms by those who, freely and voluntarily, take a solemn oath to uphold and obey its dictates. In practical terms, the most a wayward, lying, dishonest, scum-sucking (forgive the obvious redundancies) politician has to fear for violating his or her oath of office is failing to get reelected. While impeachment remains a theoretical possibility, in practice the likelihood of a politician getting impeached is probably about the same as getting hit by lightning while having sex with one of his interns. Or telling the truth. Possible, but highly unlikely.

To close this unfortunate "loophole" in our governing document, I propose the following amendment to our Constitution:

*** Start of Amendment Text ***

Amendment XXVIII:

Section 1. Any elected or appointed Congressman (whether Senator or Representative), federal judge, or employee or federal official in the Senior Service of the Federal Government, or the President or Vice-President, who knowingly or intentionally violates the express terms of this Constitution, as amended, shall, upon conviction, and notwithstanding any other provision of this Constitution, be sentenced to death, by a method as determined in Section 6 of this article. The Presidential Pardon Power under Art. II, Section 2 of this Constitution shall not apply to anyone convicted under this Section, and no one convicted under this Section 1 shall be pardoned or have his or her sentence commuted or otherwise reduced from the prescribed penalty of death.

Section 2. Any elected or appointed Congressman (whether Senator or Representative), federal judge, or employee or federal official in the Senior Service of the Federal Government, or the President or Vice-President, who shall recklessly violate the express terms of this Constitution, as amended, shall, upon conviction, and notwithstanding any other provision of this Constitution, be sentenced to a minimum of twenty years hard labor, without possibility of parole. Anyone convicted under this Section shall be forever barred from serving in any capacity, paid or unpaid, elected or unelected, in any branch of the Federal Government.

Section 3. Any elected or appointed Congressman (whether Senator or Representative), federal judge, or employee or federal official in the Senior Service of the Federal Government, or the President or Vice-President, who shall negligently violate the express terms of this Constitution, as amended, shall, upon conviction, and notwithstanding any other provision of this Constitution, be impeached and removed from office, and shall be ineligible to hold elected federal office for a period of twenty years. Such person shall furthermore by forbidden from serving in any paid, unelected capacity in any branch of the Federal Government for a period of twenty years.

Section 4. Indictments under this article shall issue if said indictments are approved by a majority of state legislatures of the several States. Indictments shall be brought within four years of the later of (a) the alleged violative conduct, or (b) the discovery of same. The crime of Negligent Violation of the Constitution defined in Section 3 of this article shall be considered a lesser included offense of the crime of Reckless Violation of the Constitution defined in Section 2 of this article. The crime of Reckless Violation of the Constitution defined in Section 2 of this article shall be considered a lesser included offense of the crime of Knowing or Intentional Violation of the Constitution defined in Section 1 of this article.

Section 5. Trials under this article shall be presided over by the Chief Justice of the Supreme Court of the United States, unless the person under trial is the Chief Justice, in which case the trial shall be presided over by a person mutually agreeable to, and appointed by, a majority of the several States. The prosecution team shall be appointed by mutual agreement of a majority of the several States. The jury shall be comprised of persons selected by the several States. Each State shall be entitled to select one juror. A number of jurors equal to a majority of the number of States shall constitute a quorum.

Section 6. A vote to convict shall require the consent of three-quarters of the jurors. Upon conviction of any person under Section 1 of this article the jurors shall determine, in their sole discretion, whether the person convicted shall be executed by hanging, beheading, or firing squad. No person or persons, including the presiding judge or the jurors shall have the power to prescribe any lesser penalty that that provided for in the respective Sections 1, 2, or 3 of this article corresponding to the crime for which the accused was convicted.

Section 7. A person convicted under this article shall have a right of appeal directly to the Supreme Court of the United States, which court shall hear such appeal with all due haste. In no event, however, shall any court change, reduce, eliminate or otherwise modify the penalties provided in Sections 1, 2, or 3 of this article for the crimes defined therein, notwithstanding any other provision of this Constitution or judgement of any court to the contrary. No one convicted under this article shall hold or continue in any official office, whether elected or appointed, nor collect any salary or compensation related to such office, during the pendency of his or her appeal.

*** End of Amendment Text ***

I believe such an Amendment will serve as a meaningful deterrent to the FedGov criminal class in Washington, DC. We the People, via our state legislatures, will undoubtedly need to employ the article as soon as it is ratified, in order to demonstrate to them that we mean business -- pour l'encouragement de les autres, as Voltaire might say.

The terms used in Sections 1 through 3 -- intentionally, knowingly, recklessly, negligently -- are terms well known to the criminal law, and thus a whole body of jurisprudence exists in which to interpret these terms in the context of this amendment. And these terms are also well known to Congress, which constantly passes criminal laws that apply to us, the People, and the Executive, which enforces them against us, and the Judiciary, which adjudicates them. So is it not fitting that criminal laws should apply to those who are among the worst offenders and despoilers of human liberty and human dignity? Note that the penalties apply only to those at the top of the FedGov food chain -- the President, Vice-President, senators, representatives, federal judges (including Supreme Court justices), cabinet members and senior bureaucrats such as heads of agencies, etc. -- since these are the ones who generally can cause the greatest evil by their disobedience to the rule of law and the will of the People, as expressed in the Constitution. We should be able to deal with lesser malfeasors using existing laws, once we have brought the greater malfeasors into line and obedience to the Constitution's mandates.

Naturally, the proposed amendment sensibly takes the indictment power away from the FedGov, because they're the ones we're trying to make obey the Constitution, and criminals tend not to self-indict. The amendment places the power to indict in the hands of the People via their state legislatures. Indeed, States may select whatever process they wish to decide on indictments -- some may choose binding state referendums, for example, while other states may choose non-binding referendums or simply allow their legislatures to directly decide. Same with the selection of jurors.

I think I've covered the essential elements of an "Or Else" Amendment, but there may exist other noteworthy considerations. So, what do you think? Read the proposed amendment, mull it over, suggest improvements. Granted, the likelihood of something like this passing in the current CONgress is virtually nil, since criminals rarely vote to punish themselves. But, who knows, at some point, after the country has fallen apart, this might become viable as the country emerges from the ashes (figurative or literal) of the social and economic collapse we face, and We the People seek a more perfect union than currently exists.

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