Heterarchy

In this country, we affirm that the people do not have rights. We have, in the words of George Carlin, privileges.

In three decades of life I have seen evidence of our so-called rights. Government positions that affirm the rights of the Constitution of the United States. I have also seen that same government call those laws that limit their power to obscure our rights unnecessary, but ultimately, our obsession with rights and their inalienable quality has led us down the path of ossification.

Richard Kreitner, Tom Woods, Ryan McMaken, and many other writers and academics wax poetic about the need to cut up the country into smaller ones. Colin Woodard's American Nations speaks of the unique cultural history of various regions of the country, seemingly, whether intentional or not, reinforcing the premise upon which the former authors establish. In one simple policy solution, writers attempt to grapple with the seemingly undeniable truth our country has battled with since its founding: a house divided cannot stand. In one fell swoop, the work of Alexander Hamilton, Abraham Lincoln, and every other fundamental legal scholar who believes in the purpose of the federal government would be shattered.

But, why?

Many of them are political conservatives scheming to limit the power of the federal government. Many of them are political liberals seeking independence from the post-Civil Rights Era correction that occurred following Jimmy Carter's presidency. Taking aside for a moment the myriad criticisms of this proposal, there is something more fundamental to this desire that they all seem to ignore.

The federal government doesn't work.

It isn't about rights, fractional cultures, social justice, religious freedom, race, or anything other than the pure and simple fact that, due to persistent political applesauce, the federal government has become a legal structure designed to make it as hard as possible to pass laws:

• An upper house legislative body (the fact this exists at all still when most democracies have abolished their upper house in the past two hundred years shows that already we're off to the races) that in addition to acting as a check to the will of the majority, has willingly created a non-binding tradition that senates past have respected called the filibuster whose pure purpose is to make the government, at least given the current standing record, legally capable of passing a budget for less than 10% of the time the country has been extant. Using the most common modern meaning of a Senate "supermajority" as 60 seats, the total is 26 years. By my count from the official Senate and House party-division tables, there were 13 Congresses where one party had at least 60 Senate seats and also held a House majority, and each Congress lasts 2 years. Those Congresses were the 60th, 61st, 74th, 75th, 76th, 77th, 86th, 87th, 88th, 89th, 90th, 94th, and 95th. Therefore, it is only possible to permanently change laws about 10% of our lifetimes.
• A lower house legislative body which, since the Apportionment Act of 1911 was passed, has become increasingly deferential to states with smaller populations. The proposed Article First, a.k.a., Congressional Apportionment Amendment, written by none other than Founding Father James Madison, sought to address this issue by capping, as most other legislatures do, representation to the population of the district, rather than awarding based on the arbitrary nature of state boundaries. Therefore, of all the times in which a super majority has happened in the Senate as noted above, there have been 22 years since 1911.
• An executive branch whose apportionment, similar to the House of Representatives, also reduces the capacity for democratic change under the framework provided above:
  • The 86th Congress (1959 to 1961): Democrats held 65 Senate seats and 282 House seats, while President Dwight D. Eisenhower was a Republican. That gave Congress a filibuster-proof Senate by the modern 60-vote standard, but not a veto-proof Congress, because two-thirds would have required 67 senators and more House votes than Democrats held.
  • 94th Congress (1975 to 1977): Democrats held 61 Senate seats and 291 House seats, while President Gerald Ford was a Republican. Again, Congress lacked the two-thirds Senate margin needed to override a veto.
• A judical branch who, barring a constitutional amendment can fundamentally alter the interpretation of laws, in effect, completely ignoring them. Even the case of emendation of the constitution may not necessarily settle a matter, as is the case of the many interpretive stances held by the court regarding the Fourteenth Amendment and what and who it applies to.

This means that, by design, we have designed a system which, out of 238 of existence of the United States Constitution, has worked as a majoritarian system roughly 22 years. This is not fair, of course, because the rule to end debate by simple majority was ended in 1806, which was the beginning of the modern filibuster. I think we can adjust our numbers to be as numerically sensitive as possible to dissenting opinions by saying that out of the 226 years since the filibuster has existed, only about 22 of those years has been a time of politically legitimate legislative sessions. I'm going to start referring to this by a term, which I will name major governance. This will be contrasted by the term minor governance, which might include laws passed in basic quorum and meeting the minimal legal standard (typically a simple majority in both houses), but are significantly limited in scope due to the combination of executive and judicial control. You might add that there have been times where an act passed the Senate with a majority of combined delegates, like is the case of the Civil Rights Act of 1968, but the preeminence of those types of laws indicates something far more concerning.

If the U.S. government will only work in historically significant times, what about all the other times? What about those other 201 years? Are we seriously admitting that we would like to not be governed legitimately for 90% of our existence as U.S. citizens?

There is a partisan bias one could immediately read into this publication. Perhaps I am a conservative, or a liberal. You might interpret what I state as beneficial to liberals in my complaints, or perhaps to conservatives in my later solutions, but I ask you, the reader: are you supportive of a legal system designed to not implement the changes you want?

Even in the case of simple majority, if one were a support of the current administration, are you getting what you voted for?

And in the case of even a 60 vote threshold, if one were a supporter of the Obama administration, did the Affordable Care Act survive? And if not, doesn't that mean that that election was in some way at the very least, not meaningful? That your vote did not truly matter?

We the people have not formed a government that forestalled the tyranny of the majority. We, in hindsight, have to admit that we have formed a government which overturns the will of the majority.

This is a lot of complaining and criticizing. But there is a solution.

The deliberative body of the United States of America is dead. Accept it. It is over. Move on.

Create an amendment to the constitution that separates out and establishes a system in which states can form tax-base heterarchies, whose regional legislative bodies are opt-in. You delegate specific policy areas that these heterarchies do not touch. The military. The foreign policy. Interstate commerce. You keep everything the same, but amend Article 2 of the Constitution to read exactly as follows:

Article I

Section 1
All legislative Powers herein granted shall be vested in Congresses of the United States, which shall consist of Houses of Representatives.

States shall have the power to join a heterarchical Congress of mutual society.

No State shall be compelled to join any Congress, and no State shall belong to more than one Congress at the same time.

No State shall be admitted into any Congress without its own Consent and the Consent of that Congress, expressed in a simple majority vote by state legislatures of both parties.

A single State may constitute a Congress unto itself.

Section 2
The Houses of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congresses of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such Enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When Vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The Houses of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3

The Houses shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section 4
The Times, Places and Manner of holding Elections for Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Representatives.

The Congresses shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section 5
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

No House, during the Session of Congresses, shall, without the Consent of the others, adjourn for more than three days, nor to any other Place than that in which the Houses shall be sitting.

Section 6
The Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section 7
All Bills for raising Revenue shall originate in the House of Representatives and make Amendments as on other Bills.

Every Bill which shall have passed the Houses of Representatives, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Review of the House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8

These Congresses shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies for the collective defense of all Congresses, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of their Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congresses.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The struggle of the United States is the disposition of its Constitution to prevent the changing of laws. The reasoning for this disposition is its Founding Fathers' reticence towards each other, but there can be major governance with minimal conflicting interest. Many states in the world, like the United Kingdom, have, since our nation was founded and its constitution written, broken their legislative bodies into multiple legislative bodies. The purpose of the Senate was to limit the changing of laws by the majority, but its purpose no longer exists if individual states determine precisely what federal laws are in their boundaries. This also allows flexibility in tax law. If multiple states have common interests and feel the need to combine tax bases, they may do so. If states do not desire to support other states, for example, a large state with a lot of federal support currently, they may do so. The important things in this proposal:

• Your tax dollar is controlled by your state.
• The rest of the government does not change. This is as minimal of a change to Congress as can be managed.
• Other states no longer have a right to control laws that affect your citizens, and vice versa, you may not longer legislate on behalf of citizens outside your state boundaries.
• The weaknesses of the Articles of Confederation that the Constitution tried to address are largely still resolved by this Constitutional amendment, while still allowing for far greater state autonomy.