Constitutional Speculations by ArJay

Welcome to R. J. Thayer's Speculative Website

This is the personal website of R. J. Thayer, who indulges in technical and speculative writing, as well as website administration. This website is generally intended to visualize the system dynamics of the American Constitution as a social covenant that a citizen agrees to if born and bred within it. Much of the speculation involves the gradual establishment of world covenants as well and why some societies regress into Mesolithic totalitarianism as a perceived survival mechanism.

This site contains material that is freely developed in a speculative mind set and R.J. reserves all of the rights attendant to speculative , note even really speculative, literary activity. Please keep in mind the site is also a 'work in progress' with the usual intellectual property rights and is used to test various website publishing modes.

Revisions are as of 28 May, 2012 CE.

2nd Amendment, bearing of arms

Could the DC Armory be an example of a national weapons transfer and training site that satisfies all parts of the Second Amendment? Read more

Is Human Wellness a form of freedom or an economic process?

Pharaohs and Emperors rewarded their supporters with health care as an economic process, but at what point does wellness become a human or civil right?
Work in Progress 2012

A New Job for the office of Vice President?

Does a Vice President sit around the Senate podium all day waiting for something to do?. More…

Allegiance to What?

The Pledge of Allegiance is endlessly repeated as a pledge to a 'flag'. OK, but perhaps it would be better to have a pledge of citizenship that all citizens must take to establish them as citizens? The 14th Amendment makes birth on American soil the criteria for automatic citizenship but why isn't that citizenship established by a legally binding oath of allegiance to the Constitution itself? For many, the idea of adhering to a set of Constitutional rules is not why they came here. As a 'what if', suppose the pledge of allegiance was a binding condition of citizenship, thereby eliminating the occupation category 'CINO'?

POSSIBLY?:
"As a conscious being of Creation, I do swear and affirm to uphold the responsibilities of citizenship and to protect the Constitution of the United States of America. I do swear and affirm that I will contribute as I am able to the common defense and general welfare of all citizens of the United States and to no other sovereignty. I swear and affirm my belief in the blessings of Constitutional liberty and democracy; that they establish domestic tranquility through justice. I swear to embrace those Constitutional rights and duties in my daily life with due respect for the rights of others not identified as enemies of the Constitution or the human race."

Is a Citizenship oath taken on Faith or is it a binding social contract between peoples trying to live together in 'domestic Tranquility' as the Preamble states?

Constitutional Contempt. An Article I, powers of the Congress, 'necessary and proper' clause implementation of reform?

Under a law where ‘contempt for the constitution’ is defined as any act that undermines the integrity of the Articles and Amendments of the constitution, any citizen would be held accountable through misdemeanor fines for not voting, belonging to an organization that advocates in any way the elimination of constitutional authorities or for engaging in a personal act of contempt (ie, filibuster, attack on politically involved citizens, use of foreign money) for the due process of the constitution.

A CoC law could allow a ballot to have a ‘contempt’ or ‘no confidence’ choice on it that would allow all voters (who must do so, or be fined in escalating amounts) to express a no confidence vote on a candidate of ANY organization or extreme minority PAC, noting that all members of the PAC would be evaluated for contempt in the manner of 501c usage. The candidate would then be subject to term limits if the ‘contempt of’ vote was in the majority. That is, only candidates who had gained a majority of votes with confidence could be elected. The ‘CoC’ law would also allow citizens to vote ‘no confidence’ on the nature of the contributions made to any candidate, thereby eliminating the candidacy of that person. That would eliminate the ‘wasted vote’ problem because a person can vote no-confidence only once. Doesn’t appear to be any Article I, Section 8 or 14th Amendment, Section 5 prohibition against creating a Contempt of Constitution law.

Health Care Constitutionality

Note Article I, Section 8, clause 1 powers of the congress: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;”

Suppose that the national requirement to pay for insurance or contribute to one’s own health care doesn’t qualify under the constitutional definitions of either a criminal penalty OR a tax? If the ‘mandate’ is considered an Impost (something that supports an entire structure, in this case the healthcare infrastructure), it follows that its authority under the constitution is derived from the General Welfare and Common Defence of clause 1 rather than subordinate clauses such as the interstate commerce OR necessary and proper.

The entire process of health care costs and quality going from $8,000 per person per year to $14,000 removes the definition of the problem from interstate commerce alone involving taxation or penalty; it is a Common Defense problem that is ‘uniform throughout the United States’. An ‘Impost’ is generally defined not only as an imposed ‘overhead cost’ but the original Latin defined it as: “ a member at the top of a wall, pier, or column that supports an arch, from the Latin impositus or placed upon;. The impost was a term that meant it supported a much larger structure by its existence AND DID NOTHING ELSE.

From a clause 1 standpoint, shouldn’t the insurance mandate be a constitutionally valid ‘Impost’ supporting the health care infrastructure rather than a tax or a commercial activity that can be distributed without restriction? In that context, and ONLY that context of Section 8, clause 1 where the Impost cannot be used for any other purpose than health care, the current Anti-Injunction Arguments and the criminal fine argument are not relevant. The issue then becomes whether it is constitutional to have a regulatory system such as the IPAB in law that does not use the collected revenues in a context of a health care Impost ONLY.

Work in Progress, 2012

Health Care Costs Getting Worse

Total health care costs in the US are about $7000 per person per year. This is expected to go to $16,000 in 2019, eliminating possible health care for some 35 million people who now have it. Some other system of insurance, both government and private is needed. Could this be corrected by a 'Wellbeing Right' in which some healthcare is covered by a "Governance Impost Credit" that can't be used for anything except the Wellness of Americans?

Show more detail, March 2012

Constitutionally valid Economics in Health Care?

Health Care Industry process: "Two of the five most profitable industries in the United States — the pharmaceuticals industry and the medical device industry — sell health care. With margins of almost 20 percent, they beat out even the financial sector for sheer profitability.”

The only reason this happens is that life and death processes are governed by the interstate commerce clause of Article I, Section 8 in the Constitution. Oddly enough, the Constitution never addressed medical processes or health care or insurance or anything relating to wellness simply because in 1787, such were strictly chance processes of Creation. The fact that medical equipment like MRI and CT scanners have 20% margins shows how much things have changed. The Affordable Care Act was developed at a time when 35,000 medical research papers were produced and the technology involved for a $4 million dollar MRI unit was increasing by the month thanks to internet collaboration. But the fact that $8000 per person per year is going to be $17000 per year per person represents a constitutional disaster that comes under Common Defense and not interstate commerce.

Early preventive care causes as much as $2500 of the overall costs to be 'cure' related rather than 'treatment for life' related, but few in a 'profit only' medical system will opt for a cure; there just isn't any revenue stream in a cure. Is it time for a constitutional convention that guarantees at least fetal, prenatal and adolescence care as a protected Human Right? That is the only way a national system of preventive cures can be setup. It would have to be an enforceable Wellbeing Right that accounts for well-deserved reward for helping others through technology but prevents the obvious (and disastrous) extortion of the unfortunate. Only a We the People right can cure these very complex problems and it would have to account for not just Common Defence but the Preamble covenants of Justice, Tranquility, Liberty and our Posterity.

The Preamble of the American Constitution.
Six wisdoms of Humanity or Six Covenants between peoples?

The Preamble to the Constitution was written during early September 1787 by the Committee of Style appointed at the Constitution Convention in Philadelphia. The Committee's members, which included James Madison as principle editor, William Johnson, Alexander Hamilton, Gouverneur Morris and Rufus King, were so concerned with the formulation of the Articles of the Constitution that they discovered that they had not defined the 'spirit' of the Constitution as an intended purpose. Their thought was that a self-evident 'spirit' came from the Declaration of Independence but they didn't actually say that in the new Constitution, so some discussion and observation, sometimes over a tavern's ale, took place. Some of these observations about that purpose appear to have been the work of the mysterious 'Brutus' who had the apparent ability to have philosophical discourses simultaneously in the Queen's Head Tavern of New York's Battery, t he City Tavern on Second Street, Philadelphia and at the deliberations in the Pine Street Church in Philadelphia with its many spirits. After literally 'sleeping on' the idea of the 'spirit' consideration, they devised a Preamble which had six basic concepts that had been considered parts of what later on would be called a 'social contract' or Covenant between peoples. The six principles embodied nearly all of the accumulated wisdom of humanity at the time, leaving them to be defined as a systemic dynamic later on, but what happens if they are defined in terms of modern operational research concepts?

More Preamble Balance

A Second Amendment Speculation but not an Amicus Curie Brief

If the supreme court is empowered to determine the constitutionality of a law 'in terms of the current society', handguns would be a natural extension of the 2nd Amendment right to bear arms. But note that the Amendment implies the 'open' bearing of arms for defense (militias imply community defense in which each member openly carried a weapon), not concealed offensive devices, let alone current limited mass destruction weapons. In the modern sense, as many states have legalized, the open bearing of arms is not restricted, while brandishing it could easily be considered simple assault. A concealed handgun can be used for self defense in the absence of constituted authority (police) but that has not been the case with bans. With total or severe bans, only those with an offensive intent have concealed offensive devices and this defeats the defensive intent of the 2nd Amendment. Modern laws governing weapons bans should have provisions that defensive training in the use of concealed devices satisfies the intent of the 2nd Amendment as an addition to 'open' bearing of arms.

Everyone has indulged in re-writes of the American Constitution, usually in an attempt to re-arrange it to suit their current beliefs, instinctive needs, or economic benefit, but it has endured largely in its original form or as amended. The reason for this is that it defined the more fundamental structure of a human society rather than current perceived values of its members and specifically prohibited its members from imposing their particular values on others without their consent. That is, it was created (or ordained) to specifically prevent the imposition of someone's totalitarian desires and gratifications, which most Cro-Magnons are born with but occasionally become enlightened enough for processes advancing beyond those Mesolithic instincts.

Minor Speculations

1. What if: The Founding Generation of 1776 in it's far sightedness actually could have intended the 4th Amendment phrase "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" to apply to the Internet as 'papers' and to Human DNA as 'effects'? Would they have belonged to some secret society of the period that let them see that far into the future?
2. Everyone is having great difficulty with various Constitutional interpretations involving human life, creating it being the most critical. There are religious interpretations of life creation that date from 2800 BCE but not after 632 CE. There are philosophical interpretations of life through 1900 CE and reasonably scientific interpretations after 1900 CE. In all of these interpretations, the integration of mind, body and soul become progressively more significant and critical. Laws and the review of laws through courts increasingly define life creation in terms of privacy, personal choice, and whether the abortion of 'life' is criminal in nature. The concept of forcing purely four dimensional life that is without hope of consciousness is also under review. Should all law makers and their courts of review ask the question: where does consciousness begin rather than where does physical life begin?
See Article VIII, The Wellbeing Right
3.

What if: At that little tavern around the corner from Independence Hall in Philadelphia, James Madison, Rufus King, Ben Franklin and the others had rolled the dice on the wording of the Preamble and it had come out 'provide for the general defence, promote the common welfare' instead?

4.
5. What if: Things really become internationalized? click to enlarge
6. Why?: If Common Defence and General Welfare are prime directives for the survival of a society, why would one say that either is more important than the other? Why would one desire a federal balanced budget amendment that eliminates either Common Defense or General Welfare when it is clear that individual states have successful balanced budget amendments ONLY because they have no Common Defense requirement.
7. 8.

Health Care Debate News