any look upon the Constitution’s Bill of Rights as an expression of human freedoms unequalled in grandeur by any written document. To others it is a collection of unwieldy and outdated concepts that are subject to many interpretations and thus amenable to the personal biases of those who seek power over them.  To others, it is little more than a short treatise used in a tug of war between the Left and the Right.  In reality, the Bill of Rights is a little of each of those perceptions, with differences arising from its language and the background and world view of the perceiver.  Language is my focus as well as my point of departure.

Language mirrors the history and culture of its practitioners.  Time, however, changes everything, and language is no exception.  In the past 20 years, alone, thousands of new words have entered into and become part of our everyday language; many others have fallen by the wayside; while still others have changed their meanings entirely—often in dramatic ways.  Linguists refer to this evolvement as “etymology.”  That’s a fancy word that merely describes another arcane field of study.  Nevertheless, understanding word origins and meanings is a skill that requires a lengthy period of formal academic training and a depth of experience equal to most other disciplines.  It is also a fulltime occupation for those who have chosen to do this kind of work.  More to the point, etymology is not a skill taught in law schools, yet we rely entirely on lawyers trained in law to interpret the Constitution, its word meanings, their origins, and their evolvement. Such reliance undermines the important task of fairly and accurately interpreting something as precious as our civil and human rights.

Here are a few examples of new words and terms that have entered our language in recent years:  audiophiles, carjacking, date rape, Ebonics, e-mail, mallrats, McJobs, pooper scooper, going postal, road rage, sex-a-holic, snail mail, spam, swoosh, televangelist, vertically-challenged, and whatever.

In addition, new meanings constantly evolve from old words.  The high-tech field, as an example, routinely creates new meanings. Years ago, there was no doubt that a "mouse" was a furry, little rodent.  Today, our first response when hearing this word is to think about our computer and its accessories.  This division of training and expertise is called “neology,” and its practitioners are “neologists.”

Examples of words with changed meanings:  "Starve" used to mean “die.” "Zest" was a piece of lemon peel.  In the 16th century "stupid" meant “amazed.”  A few short years ago "broadcast" meant "to sow seed."  Now it refers to radio and television.  

I am not suggesting that we should replace lawyers with etymologists and neologists on the Supreme Court.  At this point I am only noting that there are disciplines and skills different from law that would be helpful in interpreting the language of the Constitution.  We tend to accede to the authority of lawyers and to their experience in law as providing the singular, requisite insight into all things connected to the law.  Now we have a reasonable basis for challenging at least part of that assumption. 

Grammar and its changing rules also can mask intentions.  A good example can be found (or not found) in the use of the “suppressed conjunction.”

The Case of the Missing Conjunction

The second Amendment reads as follows:  A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

Legal scholars and proponents for and against gun control disagree on the intended meaning of this Amendment.  Did the authors intend that only the militia had the right to keep and bear arms?  Or did they intend to say that the people had a right to keep arms in spite of the militia?  Perhaps they were deliberately ambiguous on this subject and deferred to later generations to sort it out.  Setting advocacy positions and legal issues aside, some insight can be gleaned into the intended meaning of this Amendment by an examination of its grammatical structure. 

Today it is customary to join two dissimilar clauses with a conjunction that helps to clarify how the two are related.  An example would be:  “Jack is a good boy, however, he still does not display good manners.”  In this example, the second independent clause draws a distinction between being good in general, and not always having good manners in particular.  It therefore expands upon the first independent clause by noting a condition that should not be inferred from it.

Now to get back to the Constitution.  Notice that the 2^nd Amendment does not contain a conjunction to help us understand how the two clauses are related.  The conjunction “therefore” can be inferred.  But the conjunction “nevertheless” can also be inferred.  Substitute each into the Amendment and two entirely different meanings are revealed:

“A well regulated Militia being necessary to the security of a free State, [therefore, nevertheless] the right of the people to keep and bear Arms shall not be infringed.”

Since they appear to be the only two conjunctions that make sense in this context, which did the authors have in mind?  Or did they deliberately intend this issue to remain ambiguous?

Logic compels me to follow this line of reasoning as to intent:  If we insert the conjunction “therefore” between the two clauses, we arrive at a statement that suggests only members of the militia have the right to keep and bear arms. But does that interpretation really make sense?  The right to keep and bear arms is implicit in the definition of a militia.  In other words, a militia is not a militia without arms.  Why, then, would anyone waste time and space in the US Constitution to make a statement of the obvious if the suppressed conjunction was intended to be “therefore?”   Another statement of the obvious might be this:  “If you walk outside during a rain, you will get wet.”  Such a caution is obvious to virtually everyone.  But we would not include it in an important document. The suppressed conjunction, therefore, is likely not “therefore.”

On the other hand, when we insert the conjunction “nevertheless,” the 2^nd Amendment clearly implies that “the people” have the right to keep and bear arms.   This distinction is arguably needed because, although a militia must have arms, it is not obvious at all that all others also have such a right.  The authors may well have intended that this Amendment establish such a right.  On this basis, the suppressed conjunction is “nevertheless,” and the intended meaning of the 2^nd Amendment is that the militia and also “the people” have the right to keep and bear arms.

It appears to this observer that knowledge of grammar, syntax, context, time, place, setting, and logic all play important roles in the proper interpretation of the Constitution. These tools are neither used exclusively within the domain of the law, nor are legal scholars the best authorities for determining original intent by using such tools.  Again, there are other disciplines and other scholars who are better trained to make such analyses. 

Another aspect of the problem concerns the concept of justice.  Specifically, we need to define this term in a way that is inclusive of and understood by all citizens. Too often justice is used interchangeably with the law, or the legal system.  But in a broader sense—one that reaches out to and includes individual citizens—justice encompasses much more than the law.

What is Justice? 

Some people think of justice as decisions handed down by courts.  Others think of it as acting fairly in our everyday dealings with others.  Still other views of justice involve revenge, liberty, property rights, and human freedom.  Even Plato had difficulty with this concept when he argued that if you can define the just society you can also define the just person.  His just society was one ruled by the brightest citizens, thus suggesting that justice is or ought to be associated with an aristocracy or with personal intelligence.

I tend to favor the definition taken from the Prussian Code from the 16^th Century.  In it justice is defined as simply “in letting every one enjoy the rights which he has acquired in virtue of the laws.”   When you stop to think of every civil, political, economic, and human right, and who has them, this definition includes them all. 

As a starting point, therefore, and one that can serve as the basis for discussion, I offer the following observation about this term: Think of justice as the logical succession of society from a primitive state to an ideal state.  Societies evolve along this line:  first there must be peace, then freedom, then justice.  With that movement from an unjust state toward the ideal state, we can begin to think about the attributes of the “just” society.

With Justice for All.   Clearly, one of the purposes of maintaining a Constitution and a Bill of Rights is to assure that justice prevails for all those within its scope.  Further, if we can define this term, or at least set forth the conditions that it encompasses, we will have gone a long way toward assuring the safekeeping of those conditions.  In brief terms, peace is achieved when we agree to stop fighting and killing each other; freedom prevails when we establish the framework in which we safeguard ourselves from a tyrannical government; and justice would prevail if each individual were free to find his potential and to pursue his legal goals without interference from others.  By such a definition, justice would be assured by the legal system, but it would be a societal state of being independent from the legal system.  It is that state in which individual freedom flourishes and which the legal system protects.  Notice also that it includes all individual legal rights, whether they are goals, vocations, avocations, creeds, religious beliefs, or personal pursuits.   

At this point we might want to introduce definitions of each of the stated terms, but that is not the purpose of this essay.  My task is merely to begin a discussion of why we need to redefine an expanded list of civil and human rights, to state them with clarity and simplicity, and to show how they can be re-written into a new Bill of Rights making certain that they would be far less susceptible to false interpretations or to personal biases. 

Before we enter into a discussion of what those individual rights are and ought to be, let’s turn our attention to the subject of bias.  It is one of those conditions or attributes that is so self-evident in others, but not in ourselves.

Bias

Whether we believe it or not, whether we know it or not, we are all biased.  Nobody can escape from this human condition.  Everyone tends to favor certain people, genders, races, ethnicities, places, things, conditions, theories, principles, or ideologies.  To the extent that we are aware of our tendencies, we can partially control them.  But whether controlled or not, biases are always operative.  Biases are universal across races, cultures, professions, and mental abilities.  I have listed a large number of sources in the References culled from many books and papers in which numerous independent investigators have reached this conclusion:  Personal bias is a fact, and it is always with us.

In practical terms as it relates to interpreting the law and original intent, personal biases can arise in this context:  When a Supreme Court nominee states definitively that he or she will set aside personal biases and act on the basis of facts, evidence, and the law when deciding cases, he or she is wrong.  He cannot escape his biases.  He is not being dishonest about the subject.  He is being human.  And humans are mostly unaware that they are acting in a biased fashion, especially when they honestly believe they are not.

As one example, in the recent Alito Supreme Court nomination hearings, Law Professor Liu noted that Judge Alito had decided 46 out of 50 cases on the side of the government as an Appellate Judge when the issues at hand were closely divided among lower court judges.  If we assume that advocates for both sides made compelling arguments in each case, and that there were no biases operative in Judge Alito’s decisions, we would expect that he would have decided 25 cases for, and 25 cases against the government.  Deviations from this outcome would have followed this binomial probability likelihood:

             30 times in favor of the government:    1 chance in 32 

             35 times in favor of the government:    1 chance in 1,024

             40 times in favor of the government:    1 chance in 32,768

             46 times in favor of the government:    1 chance in 2,097,152

The laws of probability in this matter are much more compelling than are honest human evaluations.  Deciding 46 out of 50 cases on the side of the government has the same occurrence probability as tossing a “head” 46 times out of 50 when using an unbiased coin.  Judge Alito was biased in his decisions in those 50 cases to nearly a mathematical certainty, all arguments to the contrary notwithstanding.  Still, not a single committee questioner pursued this matter further with him.  Since bias is at the core of all decision making, this subject deserves an in-depth discussion and a few guidelines at the Supreme Court level.

Before offering a new Bill of Rights for discussion, it is important to think about the meaning of democracy.  Once again, we tend to think we know what this concept embodies, but our differences are quite profound.  Put another way, if it is worth protecting, it is worth defining.

What is Democracy?

This is another term on which there is little agreement.  To me democracy is a unique blend of people, money, and associations; plus local, state, and national governments, the press, representatives, and free elections all intertwined in a societal mélange that somehow works.  It never works well enough for everyone, so it is always a “work in progress.”  But ever since Alexis de Toqueville’s Democracy in America was published in 1835, the United States has been considered throughout the world as the best example, if not the essence, of democracy.  Such a vague understanding is unsatisfactory and provides little guidance about the subject.

According to Wikipedia, democracy is an elusive concept, but it must nevertheless contain two essential principles:  The first principle is that all members of the society have equal access to power, and the second is that all members enjoy universally recognized freedoms and liberties.  This definition argues with some specificity that there are freedoms and liberties that transcend politics and ideology, and that cannot be changed by politicians or Supreme Court justices. 

There is also a tendency among some members of society to circumvent the principles of democracy and the Constitution.  They seek out clever ways of imputing criminal behaviors where none actually exists.  They often write laws that further their own personal views of a society or their religious teachings.  In time the collection of such laws could paralyze residents in a totalitarian network of oppressive laws.  This practice needs to be stopped.     

Intention.  Nothing beneficial is to be gained by selectively making otherwise innocent behaviors criminal by simply enacting a law.  Consider the following example:  Two people enter a store and each purchases a book of matches.  The second purchaser, however, is arrested and subsequently convicted of the crime of “intending” to burn down his neighbor’s house.  While such laws and preventive actions may appear to be beneficial in a few narrowly defined instances, they also open the gates to an endless number of similar laws and abuses that could be used to make criminals out of anyone.  The purchase of ordinary tools could be construe d to be “burglar’s tools” when done so by those you do not like; carrying a flask of water might be the basis for charging another with “intending to drown” someone, etc.  Indeed, it is possible to impute an undesirable intention to almost any innocent act.  Such a practice would be rife with abuse. 

Similarly, telling a lie about an offence should never to elevated to a greater crime than the offence itself.  Indeed, making a false statement about something that is not a criminal offence should never be a crime even when done under oath.  For example, stating under oath that today is Tuesday when in fact it is Wednesday cannot be elevated to a crime simply because it is stated under oath.  If having sex with someone is not a crime, then lying about having sex with that person should never be a crime.  Those who believe it is on the same level as treason are as misguided in their thinking as they are in their actions.

Another example:  If I lend you my automobile in good faith that you will use it legally, but you subsequently use it to facilitate a crime, I am not guilty of anything more than poor judgment.  My actions cannot be the basis for making me an accessory to a crime, or complicit in criminal behavior.  Any law that grants law enforcement officials the right to confiscate and keep my car or any other property because someone else violated the law while using it is unconscionable and must be stopped.  Such actions are the stuff of totalitarian regimes; they are not the actions of those who embrace justice.

Here is the principle stated in practical terms:  Stealing a loaf of bread is legitimately a crime, however small and inconsequential its impact on society.  Conspiring to steal a loaf of bread is not an additional crime.  Gathering to conspire to steal is not a third crime, and awakening to gather to conspire to steal is not a fourth crime.  These are all vicious, totalitarian, and unconscionable attempts to make horrendous criminals out of selected people.  Such abuses of justice have no place in a free society.  Yet many lawmakers believe they are empowered by the Constitution to creatively create criminals in this manner.

To end all such abuses, these prohibitions can be stated in the Constitution:

“No one shall be subject to arbitrary arrest, detention, or exile, nor shall any law be enacted based on presumed criminal intentions, nor shall laws be enacted that grant discretion to judges or to law enforcement officials the power to impute criminal conduct in the absence of an actual offence.”   And, “Making a false statement during an official investigation or while under oath shall never be a greater offence than the actual commission of the act at issue.”

While these prohibitions may appear to give those with bad intentions some “wiggle room” in their conduct, the greater danger lies in granting law enforcement and judges the power to impute crimes where none exists, or to make criminals out of innocent persons.  At a minimum, these issues need to be debated vigorously with the view to first preventing the very thing that a Constitution should prevent:  the creation of a tyrannical government.

A Bill of Rights is how we protect ourselves from each other.  In particular, we need to protect minority rights from the majority views.  That is because there is a tendency for all democracies to be ruled by the wealthy or by the political majority.  But democracy insists that minorities have rights, and all are entitled to participate in government and to lead lives free from undue interference from majority views.  The only way that minorities can be assured of basic rights and participation is to guarantee those rights in a Constitutional Bill of Rights.

The final topic is about our rights.  No political party or any coalition is ever assured of always being the majority group.  We therefore need to think about our rights and freedoms from a minority perspective, and to state them clearly so that they are unmistakable.

Why We Need to Adopt a New Bill of Rights

Our present Bill of Rights no longer reflects the reality of our times.  We assume that we have the right of privacy, the right of mobility, the right to offer our skills in the job market, and the right to send our children to the schools of our choice.  There are legal scholars, however, who believe that we do not have any of these rights simply because they are not explicitly stated as rights in the Constitution.  This is more than just a difference of opinions.  When a Supreme Court justice holds such a narrow view of the Constitution, the entire population can suffer. 

With an expanded Bill of Rights, arrived at with care and purpose, and written with clarity and simplicity, we can avoid the turmoil, the problems, and the contentious atmosphere that inevitably prevails every time a dispute arises about the Constitution, its meanings, and who is right about what the Founding Fathers intended. 

Even the term “Founding Fathers” conjures up an image of permanence and perfection.  We tend to accede to this term as if those to whom it alludes came down from Heaven and gave us “the Truth, the whole Truth, and nothing but the Truth.”  In reality, they were ordinary human beings who gave is a very limited view of the world that embodied concepts limited by their experiences.  Even the brightest among them could not have foreseen today’s society and the contentiousness that exists from their words, however well intended their meanings or our interpretations of them.  Time changes everything, and language is no exception. 

Here is a proposed Bill of Rights that can serve as a starting point in a new debate about where we are as a people and a nation. 

Note:  The astute reader will detect many elements of the United Nations Universal Declaration of Human Rights in the list that follows.  This declaration was adopted on December 19, 1948.  Although no nation has achieved its ideals, this declaration has stood as a model for human conduct and dignity for more than 57 years.

The New Bill of Rights

Whenever and wherever “he” or “his” appears in the following Amendments, it properly also includes “she” and “her.” 

Amendment 1.  Authority.  The will of the people shall be the basis for the authority of government.  This shall be expressed in periodic and genuine elections, which shall be by universal and equal suffrage, and shall be held by secret vote or by equivalent free voting procedures.  Each citizen has the right to participate in the government of his country, directly, or through freely chosen representatives. 

Amendment  2.  Equality.  Every legal resident is equal before the law and each is entitled to all the rights and freedoms set forth in this Constitution, without distinction of any kind such as race, color, gender, language, religion, political or other opinion, national or social origin, property ownership, birth, or other status.

Amendment 3.  General Rights and Freedoms.  Every legal resident has the right to life, liberty, privacy, mobility, and security of person; to freedom of thought, conscience, and expression; to freedom of religion; to peaceably assemble; and to freely petition government for a redress of grievances.

Amendment 4.  Family and Marriage.  (1) The family is the natural and fundamental unit of society, and its members are entitled to special protections by the government.  (2) Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family.  (3) Marriage shall be entered into only by a man and a woman with the free and full consent of the intended spouses. 

Amendment 5.  Arms.  The people shall have the right to keep and bear arms.  States shall have discretion in circumscribing limitations on this right, or denying it to the mentally incompetent or to habitual criminals.

Amendment 6.  Press.  The press is an essential component of a free society; it has special responsibilities to the people, and it is entitled to special protections by the government.  No member of the press shall be compelled by government to reveal the sources of his stories produced in any media.

Amendment 7.  Special Care and Assistance. (1) Motherhood, childhood, the mentally or physically disadvantaged, and old age are entitled to special care and assistance from the government.  (2) All children, whether born in or out of wedlock, shall enjoy the same protections under law.  (3) A woman of full age has the supreme authority over her body, her reproductive organs, and her pregnancies.  (4) All citizens of full age have a duty to provide economic aid to the mentally or physically disadvantaged and the elderly. 

Amendment 8.  Neutrality.  Government shall remain neutral as to religion, and shall neither promote nor discourage any religious view.

Amendment 9.  Punishment.  No one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment. 

Amendment 10.  Arrest and Detention.  No one shall be subject to arbitrary arrest, detention, or exile, nor shall any law be enacted based on presumed criminal intentions, nor laws that grant discretion to law enforcement officials the power to impute criminal conduct in the absence of an actual offence.  In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the alleged crime shall have occurred; to be informed as to the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to have the assistance of competent counsel for his defense; and to the presumption of innocence as to the charges against him. 

Amendment 11.  Criminal Proceedings. (1)  Trials shall be open to the public. (2) No person shall be held to answer for a capital or otherwise infamous crime, unless on indictment of a grand jury, except in cases arising in the Armed Forces; (3) nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb whether in the same legal jurisdiction or in another; (4) nor shall anyone be compelled in any criminal case to be a witness against himself; nor shall the spouse, parents, or children of an accused be compelled to testify against that accused. (5)  All crimes are deemed to encompass lesser issues such as conspiracy to commit the same act, or intending to commit the same act.  A singular act cannot be made into multiple crimes by charging anyone with charges of conspiracy or intention to commit the same act.

(6) Making a false statement during an official investigation or while under oath shall never be a greater offence than the actual commission of the act at issue.

Amendment 12.  Bails and Fines.  Bails and fines shall not be excessive, and in no case shall bails and fines exceed the current national average salary for individuals, except in capital cases where the limit shall not exceed fifty percent of the net worth of the accused, or $10,000 whichever is greater.

Amendment 13.  Acts of Terrorism.  Terrorists pose a special threat to the security of everyone.  Those who would kill or destroy based on ideology, religion, or any source opposed to the principles in this Constitution do not deserve the full protections of this same Constitution.  Any person charged with an act of terror may have all his Constitutional rights suspended for 72 hours pending an investigation into the facts and circumstances surrounding his arrest.  A judge may then order non-citizens to be held in a facility outside the United States while retaining rights of habeas corpus. 

Amendment 14.  Right to Earn a Living. (1) Everyone of full age has the right to work, to free choice of employment, to just and favorable wages and conditions of work, and to protection against unemployment. (2) Everyone of full age has the right to equal pay for equal work.  (3) Everyone of full age has the right to join trade unions or associations for the protection of his interests; but no one shall be compelled to join any such trade union or association as a condition of employment. (4) Government shall have no authority to abolish, disband, discourage, to reduce the influence of or eliminate unions for political convenience.  Collective bargaining is an inherent right of unions that shall not be reduced or eliminated by government. 

Amendment 15.  Right to Health Care.  Every legal resident has the right to basic health care and to emergency medical treatment irrespective of his or her ability to pay. 

Amendment 16.  Right to Own Property.  (1) Everyone shall have the right to own property; and no property shall be taken without due process of law; nor shall property be taken from anyone for public or private use without a compelling local interest and without just compensation.  (2) Property shall not be taken from its rightful owner when persons other than the owner use such property in connection with a criminal act.

Amendment 17.  Right to Education.  Everyone has the right to education.  Education shall be free, at least in the elementary and secondary levels.  Elementary education shall be compulsory.  Technical and professional education shall be generally available, and higher education shall be equally accessible to all on the basis of merit.

Amendment 18.  Limitations.  The government has the authority to circumscribe and to set limits on the rights of the individual so that the same rights may be exercised and enjoyed by the many.   Examples:  Setting conditions for issuing drivers licenses; setting standards for and regulating air quality; controlling traffic and speed limits; setting safety standards.  

Amendment 19.  Presumption Favors the People.  The rights listed herein do not exhaust all the rights of a free people.  To that end, all rights not specifically stated in this Constitution, nor prohibited by it, are presumed to be held by the people. 

Amendment 20.  Limitations of the Government’s Authority.  The executive, legislative, and judicial branches of government must find their authority to act in all matters within this Constitution; otherwise, they have no authority. 

Amendment 21.  Scope.  Nothing in this Constitution shall be interpreted as implying that any State, group, or person has any right to engage in any activity or to perform any act aimed at violating or destroying any of the rights and freedoms as set forth in this Constitution.

Amendment 22.  Constitutional Conventions.  This Constitution may be amended from time to time as prescribed elsewhere in it.  A comprehensive review via a Constitutional Convention shall be held at least once every 50 years so that any or all of its contents may be reviewed, debated, retained, or changed.  Guiding principles in all such activities are to simplify, clarify, preserve, and protect freedoms.

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