An Honest Constitutional Republic

With the recent Roberts confirmation hearings, and given that I'm teaching my course in Constitution and the Economy this semester, I've been thinking about the Constitution a lot lately.

I guess I make 2 assumptions or perhaps accept 2 principles: (1) a person should be able to read and understand our written Constitution without being a constitutional scholar or an attorney practicing constitutional law, and (2) it is better, other things constant, to be more honest, rather than less honest, with our constitutional system of government.

I find it hard to match the written words in our Constitution, as published, with our system of government today.

I wonder what words we would write down for our Constitution today, assuming that we wanted it to summarize, in a simple way, what the Supreme Court thinks it means? I suppose this is a bit like Barnett's idea of the "lost constitution" . But, I think it would be of great value to have an honest constitutional republic, and therefore, to consider how we would have to rewrite the words in our Constitution to be consistent with the real constitution, i.e., with the constitution as it is viewed by the Supreme Court today.

I want to suggest language for some clauses that would have to be included in a constitution that honestly reflected our constitutional system of government today. This is just my suggestion for a first draft, if you will, of some of the clauses:

A. The Supreme Court shall have the power to amend the written words of the Constitution by simple majority vote.

B. Congress and State governments shall have the police power.

C. Congress shall have the power to regulate any aspect of our individual lives, and this includes the power to prohibit behavior.

D. Congress shall have the power to tax income, wealth, and any form of economic activity. It shall have the power to impose taxes differentially among the citizens.

E. Congress shall have the power to subsidize any aspect of our lives, and to do so differentially among the citizens.

F. Congress and State governments shall have the power to grant special privileges and immunities differentially among the citizens.

G. Congress shall have the power to own property. Congress owns the air and the wildlife of the country, and may take food or shelter for its wildlife from individuals without compensation.

H. Any level of government shall have the power to take private property for any public purpose, and this includes the power to take private property for private ownerhip by others. This power to take private property requires compensation be paid by government, but full compensation is not required for use of this power.

I. The powers of Congress and of the States are constrained by the following:

1. There must be a strict separation between government and religion.
2. No law may be made abridging the freedom of speech in the areas of politics and certain forms of art.
3. No law shall be made abridging an individual's right to privacy.
4. No law shall be made impairing the obligation of contracts, except on the expressed written agreement of a majority of the Justices of the Supreme Court.
5. No law shall be made that deny's equal protection of the laws to every person, except on the expressed written agreement of a majority of the Justices of the Supreme Court.

J. There are no individual rights retained by the people, nor are there powers specifically reserved to the states. If at some time in the future, Congress shall want to undertake an activity which has not been covered specifically by this Constitution, then Congress shall have the general power to tax and spend as it sees fit, unless a majority of the Justices of the Supreme Court disagrees.

Could be I'm just in a bad mood this morning.

How do you think our Constitution would have to be rewritten so that we wouldn't have to be constitutional scholars to know what it says?