To form a more perfect union

July 2, 2022 8:24 AM ET society

There is a center in American politics. It can govern. The commission is just an example of what can be done. First, get your facts straight. Everyone is entitled to his own opinion, but not his own facts. Second, decide to live with the facts. Third, resolve to surmount them. Because, fourth, what is at stake is our capacity to govern.

- Senator Daniel Patrick Moynihan, 1983

The common perception seems to be that Washington DC can’t get anything done, and that’s proof of it being broken. The truth is that Washington DC can’t get anything done because we have not heeded warnings that have been around since the time of the capital’s namesake.

However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.

- George Washington, Farewell Address, September 17, 1796

In a nutshell: if the basis of your governance is opposing the other side, you’ve lost sight of the purpose of governance.

These days, we like to talk about polarized politics. There are endless pieces about the problem with the modern state of political discourse, and both parties frame themselves as the savior of the original intent. But the problem with modern politics is that it references a guiding document that presumed something that is no longer true: that all parties involved in government were acting in good faith for the preservation of one nation and the principles stated in the Constitution.

One need only look as far as Fox News to see exactly what a “bad faith” argument looks like. When politicians employ disprovable statements to curry favor with an electorate in order to remain relevant, their statements should be assumed to be bad faith. They have lost credibility and integrity. But that isn’t what happens now; now this is just standard practice in the “team sport” mentality of modern politics. “We win and they lose” is probably the best summary of this view (and an equally accurate summary of capitalism).

The current actions of the conservative Supreme Court of the United States is further proof of this. In the midst of political factionism, the court is trying to, rightly, adhere to its purview: what is allowed by law. However, even the court is not immune to the friction of modern life, trying to interpret the intention of the Constitution and still square it with the starkly different world in which it should apply. There is a bit of wisdom in a justice criticizing Roe v. Wade, saying that the Constitution does not grant the federal government the ability to pass such a law in place of the states.

But the accompanying defense of this rollback of a 50-year-old precedent, saying that if people want to make such a law legal then they should amend the Constitution, is also in bad faith. Why? Because the political climate makes the Constitution amendment-proof. Take, for example, the Equal Rights Amendment, which was passed by Congress in 1972 and sent to the states to be ratified, where it stalled (and remains stalled). It reads:

Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3: This amendment shall take effect two years after the date of ratification.

This is effectively one concept, expressed in the first line: “women should have equal rights to men, and no state can say otherwise. So say we all.” And yet, this is still not an official amendment to the Constitution. Read that again. Our partisan bickering has stalled codifying the equality of people regardless of sex (and the original opposition to this amendment also began in bad faith). In a world in which no side is willing to compromise, every difference becomes a religious war – one devoid of the commitment Moynihan references. Now, the Supreme Court exacerbates this issue by attempting to nail things to an originalist interpretation of the Constitution, knowing full well that they are engaging in another front in a partisan war.

And yet, this narrow interpretation is also correct. The problem with modern discourse is that it’s too easy to bypass good faith. Bad faith parades as patriotism and sound bites, and hides itself behind the Constitution. This allows for a religious view to hide as a legal view, or a set of guaranteed protections to be subject to periodic (and seemingly endless) interpretation, or for bigotry and racism to be tacitly encouraged under the banner of individual liberty. It allows for a “pro-life” movement to get mixed and mired in discussions of “states’ rights” and whether markets should be regulated. And frankly that’s just foolish. The only real way to shed light on people’s motivations (and hopefully prevent these trojan horse arguments) is to amend the Constitution in a way that gets to the heart of the matter. In other words, amend the Constitution so that the legal conversations have to be about what they are actually about.

But before that, we have to address the elephant in the room, the seed of bad faith, which is willful ignorance. It is willful ignorance to claim that the Constitution does not stipulate a separation of church and state because it does not contain the phrase “separation of church and state.” The Constitution clearly says, in the very first amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Truthfully, this eventual wording does frustratingly allow for some debate, but the tiniest bit of research shows that the intention is clear: the government should not establish a national religion, and it should protect all religions’ followers from persecution due to their beliefs (with obvious roots in the nation’s founding). With this in mind, all attempts to frame Christianity as the belief system of the Constitution should be viewed as irrelevant and misguided.

So let’s amend the Constitution! Yay!

What if we amend the Constitution so that these exhausting efforts to redefine history and what words mean must be stated in more honest and upfront ways? (I’m no constitutional scholar, just someone who’s read the document and someone who understands that the notion of being American is swearing not on a stack of old rich white men, but on the ideals put forth in the Constitution of self-determination and equal treatment under the law. What it means to be truly American is to support those notions, no matter your race, color, or creed.)

Amendment A: limit any state from restricting personal freedoms (augmenting Amendment X) that are not explicitly granted by the Constitution (augmenting Amendment IX)
No state shall pass any law restricting the personal liberties of any individual as it pertains to the sovereignty of their own physical being. No state shall pass any law requiring or prohibiting an individual from modifications to their physiology based on religious beliefs.
Amendment B: limit the role of the judicial system to speak to matters of law, and not to faith or the interpretation of facts
The judicial system decisions may not supersede provable facts, nor shall it be asked to determine matters beyond the scope of what is permitted by laws; it shall not be a determining body deciding what is philosophy, faith, or historical fact, with the former two being unprovable and thus unenforceable, and the latter being a constraint of our physical existence. No law may enforce decrees supporting a purported non-physical existence.
Amendment C: public service disqualification (augments and clarifies Amendment XIV, section 3)
Any individual elected to public office herein who provably violates their oath to uphold this Constitution and its amendments, especially for personal gain, foreign influence or benefit, or political advantage, shall be forever and immediately barred from holding any office as described in Article XIV, section 3.
Amendment D: limit any state from redefining personal freedoms
No state shall pass a law that grants an individual any right that supersedes the rights of another individual; no personal right shall allow an individual to impede another individual's right to life and liberty.

These aim to establish a few things:

  1. Clear markers around what a state can and cannot do. A federal government limiting personal liberty is anathema to the conservative “states’ rights” proponents, but does the state government somehow make more sense? One would think that the central premise of the Constitution is not about establishing a small state government as much as it is about outlining and defending personal freedom. Both parties aren't really that far apart. One party is saying, “don’t make laws above the states, trust them to do the right thing,” and the other is saying, ”make laws that prevent states from doing the wrong thing.” So as long as the states aren’t trying to be allowed to violate the rights of individuals, they should not be against this idea.
  2. Drawing a distinction between a right in society as it pertains to actions and impacts on other citizens, and rights of the individual as it pertains to their own person. A government should govern the citizenry and their interactions; a belief system should govern individual behavior within the law and one’s own physical maintenance within the legal constraints of the society. The Constitution does not define crimes (ok, it does for piracy, treason, and counterfeiting), so it’s framing the sovereignty of the individual over themself – and this seeks to make that explicit.
  3. Make bad faith punishable by expulsion. If someone is using their office for ill, and the Congress, itself not acting in good faith, will not hold that person accountable, then there is political potential to “lawfully” act against the Constitution. These days, relying on impeachment seems silly when the facts are so easily obtained and politicians place party over country. If we can see it with our own eyes and hear it with our own ears on demand on the Internet, then it should be easy to provision for that person to be unfit for office without any need for their political body to vote on the question. And if we wanted public review, then it should be decided by referendum and not by representative vote by party.
  4. Remove the judiciary as a weapon in any culture war. The judicial system should not rule on things outside of its lane. The Supreme Court should not decide the length of a meter, the weight of an elephant, whether a politician said something or not, or the biological composition of a life form. The judiciary exists to define the constitutionality of laws and resolve disputes. Disputes may involve non-facts (like religious beliefs, opinions, inferred intent, etc), but the court should not be positioned to decide what a fact actually is. There are not alternate facts. We, as physical creatures, can only experience linear time. Things happen or they don’t. Science is real. Judicial decisions have to be based on fact for them to be impervious to political spin.

The union is broken due to bad faith, and you cannot argue with someone who is operating in bad faith. You have to establish clearer boundaries to expose it. A perfectly legal argument that is amoral or suicidal is nonsensical. If we don’t want the federal government to tell us what to do, and we want to trust that smaller and local governments can protect our civil and personal liberties, then we need to dismantle the machinery that allows disastrous decisions masquerading as patriotism from dooming the society, and the planet, altogether.