The U.S. Constitution has been in effect for over two centuries. Most citizens are almost completely unaware of its contents, history, significance, and implications.
I submit that many public issues have solutions in the Constitutional arena. Of course, there would be winners and losers in the process of resolving them; however, on the whole, special interests act against the best interests of the People and the Republic to avoid addressing those issues.
There are some who would propose an entirely new constitution. I disagree, as a practical matter. For one thing, there are significant benefits to continuity. When the current Constitution was formulated, there was more unsaid than spoken, and it is difficult to imagine the success this Republic had would have taken place without the then-existing foundation of the States, the Common Law, and other institutions. Furthermore, the system as it stands is damaged and flawed, but I do not believe it is irretrievably broken.
Why do we need Constitutional changes, instead of merely new laws? The issues run deep, and are fundamental. Laws are not adequate to address them. The explanations below should make this apparent. Also, laws have a way of becoming too complex. A simple statement such as, “Congress shall make no law [...] abridging the freedom of speech, or of the press [...]” is more clear and unambiguous than almost any statute on the books, and says more than all of them put together. We need to come together, to heal this Republic, and to agree on general principles. Most importantly, the process of amendment must take place openly, while laws tend to be made in secret. The discussion, the national debate and dialogue, is as necessary as the amendment itself. We can unite, more or less, behind some simple amendments, whereas we would likely surrender a discussion of laws to the politicians and special interests.
The word “radical” has been much misused in recent years. It comes from the Latin for root; radical solutions go the root of problems. We need radical solutions, not mere work-arounds. We need cures, not simple palliatives or first aid.
Here will be presented a collection of proposed amendments to the Constitution. The wording may be simplistic, there may be unforseen and even unforseeable consequences, but the intent is to start the discussion.
This is an incomplete document. Rather than waiting for completion, I will be publishing one or a few proposed amendments at a time. Not only does this accelerate the beginning of a dialogue, it will allow me to incorporate suggestions, criticisms, and corrections into this proposal. The most recent version of this proposal will be kept on the web, at the address shown below.
No one shall avoid responsibility or liability in any violation of the law, crime, or tort, except by freely entered contract with the party to whom a duty might be owed. The corporate veil is abolished except where recognized by contract. A government may not waive responsibility or liability to its citizens.
Whenever responsibility or liability have not been so waived, the beneficial owners of any voting or managing interest are a proper subject of inquiry when determining the real parties in interest in any action.
The ownership interest in any corporation or other artificial person becomes an asset subject to liquidation in any action for bankruptcy or insolvency.
These provisions are meant to prohibit avoidance of responsibility and liability by use of corporations, limited liability companies, and other artificial legal persons.
If you or I, as individuals, negligently cause deaths by releasing poisons into the water supply, for example, we might go to jail. Corporations cannot be jailed, so as it now stands, corporations are immune except, perhaps, for fines. The intent here is to make the operators and any voting owners liable for the actions of the corporation.
The exclusion for contracts allows a corporation to become indebted to someone else, without the owners or managers being personally liable, as long as the creditor knowing agrees to the arrangement. The corporation, however, will have no such contractual arrangements with the public, so the officers and employees remain personally liable for any negligence of some other sort.
If a corporation is owned by shareholders who select the managers, then those shareholders may also be liable, and a court may inquire as to their identities. If the shares are held by one person acting as agent for another, then the principal also may become liable, because he helped select the management. It is a question for a jury to determine the extent to which the owners' actions helped foster the improper act which might have injured someone else. For large public companies, small shareholders are not practically liable, because they do not have much influence over the affairs of the company. Major stockholders, however, with a lot of power, might be held to be responsible.
The final clause is to prevent certain abuses of the bankruptcy system. When a corporation declares bankruptcy, the courts have the power to sell off assets, rewrite contracts, and do other things to make the firm viable again and to satisfy the demands of creditors. This process is called reorganization, and is done in lieu of simple auction of the assets under the theory that it is better for everyone (including employees) to keep the business going than to shut it down completely. However, the owners of the stock pay no direct penalty. Therefore, if you own, say, an airline, you can bankrupt the airline, break contracts, lay off employees, and so on, but, in the end, you still own the airline. This is one way that stockholders can profit immensely from bankruptcy. Why should everyone but the owners, who control the company and ought to be responsible, suffer the consequences of the insolvency? This provision makes the owners liable, to the extent of their stock holdings. In other words, if the corporation goes bust, the owners will hurt, too: they will lose a portion or all of their stock.
(Note: Some readers might expect me to address, at this point, some of the controversies ensuing from the Citizens United decision. The problems go beyond corporations, their rights, and their responsibilites. I may yet add to this proposed amendment, but, for now, those issues will be addressed elsewhere in this essay, in a more general context.)
Planned additions:
Comments, criticism, and suggestions are welcome. Please direct them to marking@tatanka.com. Your comments may be published unless you explicitly request otherwise; they may be edited for spelling, grammar, or length. You will not be identified unless you say it is OK; your e-mail address will not be published unless you say that is OK, too.
Copyright 2012 Michael Marking. All rights reserved, including moral rights.
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