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Our Constitution - A Framework

Lately I've been getting frustrated with statements by citizens about our rights. Statements like "well our Constitutions gives us the right to..." That's a blatently ignorant. The U.S. Constitution does not grant or enumerate individual rights. Where necessary it specifies them. This happens in order to define how the government is limited, not in order to detail how an individual is allowed to exercise their rights. One exception to this might be when we specify limitations of one groups rights in order to protect either another groups rights or an individuals rights. Regardless, the government does not provide us our rights, they do not allow us to do X or Y, it is we that are born with our rights and we that restrict our government.

Our Constitution is a framework meant to specify how to keep the government in check as well as how the government should run to the benefit of its people. The problem we have today is that people see the Constitution, our laws, and the government as a means of limiting and controlling citizens. Example, the Right to Bare Arms is not the government giving the people the allowance to own weapons, but a rule against the government interfering with said unalienable right.

The goal for the government should be to figure out how to facilitate expression of that right versus how to put controls in place to restrict or restrain expression. The key issue is that people fear other people expressing their rights. I'm afraid for my neighbor to own a gun out of fear of what that crazy bastard might do. Meanwhile he's afraid of two men getting married because they might bring about the end of the world. Both fears are unfounded, but they get expressed in the same way; "We need the government to put a stop to this."

So the government enacts a law that does X or Y; one group ends up happy and another ends up deprived. In our search for safety we create barriers. Those barriers end up being the barriers to a thriving civilization and ultimately barriers to our happiness.

We have gone so far down the path of using laws that we now use them in place of human judgement. We do so because we mistrust human judgement, yet it was human judgement that defined the law. It's a paradox. In creating this paradox we've created a society that thinks more about punishment and about deterrents than it thinks about rewards and encouragements. We have more people locked up than in any country, we spend more on housing criminals than we do on educating and reforming them. We have entire industries devoted to people who have broken the law, how to find them, register them, hold them, and even how to make money off of them.

This is not how a civil society should behave. The Constitution is a framework, a set of guide posts, for how civil society rules itself. It was not meant to be all encompassing. It was not meant to be amended ad-nauseum. Laws are a guide, specifying agreed upon rules for things that might be in contention and that might need clarification. That doesn't mean that they are set in stone nor that they apply to every situation equally. This is the reason we have judges and juries. This is also why juries are lay people and not professional jurists trained in law. Hence the motto "jury of your peers."

Mandatory sentencing laws, laws restricting marriage, laws banning this kind of research, or that kind of medical procedure, or even IP laws, are the antithesis of a living thriving culture based on rule of law. Rule of law does not mean blind faith and unflinching devotion to laws. The rule of law is based on the concept of fairness, as a means of equalizing treatment of all people. It's as if saying that weather king or peasant, movie star or hometown mechanic, we each get treated with respect and under the law should be seen as equal in all regards.

We've lost that concept of fairness under the law. While all the words are still there, the fact is that movie stars and politicians are dealt with differently than mechanics and high school drop outs.

What we need to get back to is simplicity, simplicity and fairness. We need to stop trying to codify everything and instead think of laws as malleable based on our interpretation. We need to stop being prescriptive before we kill the patient.

Think about it for a moment. Is it really necessary to say that someone who stole a car worth $25,000 is different from someone who stole a pack of gum? Isn't that difference self evident? Is it necessary for us to codify that difference in order to educate a judge? Or do we specify it in order to inform the jury? Or did we do it because some poor soul years ago was punished in a way befitting someone who had done a more significant crime? Maybe, but is it reasonable to swing the other way, so much so that we lose all ability for discernment or discretion? I think not. I think we can be fair and flexible.

It will take courage and it will take work, but we can do better that we are doing today.