An Open Letter to All Americans

Dear Americans:

I write this letter because I love the beauty and magic that exists within every human spirit. I write for the human spirit’s mesmerizing ability to perform and bring to life thought provoking reality bending machinations of the mind. I write in earnest desire to protect the humanity that exists within our individual spirits, and threads us together as one society. I write in hopes that we may meet, deliberate and debate the truths we uncover as we explore society’s sacrosanct principles and ugly truths. I write because America the bold, America the beautiful, and America the idea …is dying!

I write this letter for every American and to every American. American being broadly and boldly defined. I write this letter as a millennial crying out for help so that my latter days can be brighter than my former ones. I write for every American be it white or black; Jew or Muslim; rich or poor; urban or suburban; philistine or acculturated; college graduate or high school drop-out; success story or unending failure to help save our Democracy, our peace, and our lives. I write this letter for whoever picks it up to be inspired to take action that does not require reckless abandon of your core ideas and central beliefs but merely hope and a willingness to discuss and help create a new future.

I write this letter pleading with its readers to help forge a new path for America that writes and will read into history’s pages the successes and failures of every American regardless of race, creed, religion, nationality, or ethnicity. I write to request every American to call upon yourselves, community leaders, elected officials bankers, authors, editors, journalist, grandma, father, daughter, son, brother, sister, mother, and grandfather to come together once more to do what Americans can do best. To dream boldly, to hope wholly, and to forge bravely a new America for the ages. I write to ask every American to come together for the purpose of drafting a new constitution.

The Process for Creating a New America

The United States Constitution provides two mechanisms for amendment.

As to the first mechanism, the Constitution can be amended by either chamber in Congress — the United States House of Representatives or the United States Senate. A member(s) from either chamber may propose an amendment to the Constitution. Next, each chamber must pass the proposed amendment by a two-thirds vote. Following, passage by two-third vote in each chamber, the proposed amendment makes its way to the state legislatures throughout the country. In turn, each state legislature must vote to ratify the proposed amendment(s). The amendment becomes law and, in essence, part of the U.S. Constitution, when three-fourth (38) of the states vote to ratify the amendment. All twenty-seven amendments to the United States Constitution have been passed by this process.

Alternatively, the Constitution may be amended through a constitutional convention. A constitutional convention is held when two-thirds (34) of states call for a convention to propose amendments to the Constitution. During a national convention, proposed amendments are offered for ratification. When the proposed amendment(s) are ratified by the state legislature of at least three-fourths (38) of states the amendment becomes part of the United States Constitution.

The Need for A Constitutional Convention

So why must we take to the streets to demand a constitutional convention?

Throughout the epochs of history, the times have found us!

The times have found us in the Spring of April 1775 with the opening bayonet shots being fired across the muddy fields, the beginning to America’s long slog towards independence and the aspirational idea of freedom. The times have found us on September 17, 1787 when “[w]e the People of the United States in Order to form a more perfect union” captured the immortal and immutable words which our democracy would be formed upon. The times have found us, over seventy years later, as the Gettysburg field soaked with martyrdom blood and the skies thickened by gun smoke a little over a hundred years after our more perfect union was formed. On a day that lives in infamy — December 7, 1941 — the time once again found us on the shores of Pearl Harbor. Seventy years later, September 11, 2001, the two silver twins that stood above the horizon, destroyed by malignant intent and the bellicose beat produced by the drums of war, the times once again found us. Now in 2020, in the wake of famine, disease, poverty, and inequality, the times once more have found us! This time unless we act boldly and decisively; unless we summon the strength and sacrifices set forth by our founding fathers, equality bridging mothers, and justice demanding freedom fighters — this time the times will destroy us!

But why use a process that has never been used to propose and ultimately lead to ratification of an amendment to the United States Constitution?

Simply put because the United States Constitution does not need to be amended but rewritten. We find ourselves in times that require us to take extraordinary action like the drafters of the great compromise known as the U.S. Constitution. We find ourselves embroiled in a battle of dietetical differences of epic proportion. America stands at the vanguard of war as the svelte battle lines that divide us turn into gorges as wide as the Grand Canyon. The once seemingly reconcilable nature of what makes us different and great, has morphed into tribal differences that stands to divide us and be the cause of what leads to our destruction.

Like the drafters of the Constitution, we must come together not to make what is becoming an oxymoronic document of unworkable antiquated guiding principles work but, instead, to draft a new vision, plan, and path for America. One that addresses America’s fissures in its multitudes and magnitudes, from America’s failure to fully acknowledge and make whole the millions of African-Americans that are the product of this country’s original sin to its failure to address the systematic inequities faced by half the population merely because of a “y” chromosome. Fissures that pit faith and religion against the wholesale reliance and belief in evidenced-based decision making. Generational differences that lead some to chant economic prosperity while others ask at what cost?

Stated plainly, the Constitution laid out a guide for dealing with, or avoiding pressing challenges present before the founders — a guide that was and is replete with errors. Avoiding the slavery issue with the Importation Clause and Three-Fifths Clause. Crafting a document that was drafted by men and for men and would be interpreted for over one and half century by men thus contributing to the American women acronym and plight to remedy gender based wrongs.

A principled document, a document of principles, that will be tested by the current COVID-19 pandemic. Raising constitutional questions including state and local governments’ authority and outer limits on restricting the right to travel, gather, and worship during a pandemic? Although not in affect, questions including the constitutionality of requiring citizens to carry immunity papers to return to work?

Further from clarity are the questions that abound regarding the new America that is solely emerging. Questions pertaining to the vestige of Fourth Amendment Privacy Rights; the reinvigoration of constitutional law surrounding antitrust laws and broader goals; the contours and depths of oft little understood or utilized constitutional clauses including the impeachment and emoluments clause. These are but a few of the pressing challenges that face not just our generation but cuts across every divide to unite, every American. The issues that divide us and the challenges that await us are numerous and complex. We must face these issues as either a collection of individuals or a collective society.

The document that countless many have relied on — fought over, shed blood for, litigated under- is under the ultimate stress test and once again faces unknown perils and the epoch of history. Each day we secede more data, information, and power to corporations, tech conglomerates, and the government to regulate the unregulated nature of people. We do so in an effort to live in a civilized society. We exchange unbridled freedoms for social order and decorum. We give individual liberty for the so-called collective good.

A constitutional convention will achieve three goals: (1) allow for pressure testing the fundamental document we hold as tried and true; (2) provide for a collective debate and discourse on the principles we wish to bind us together; and (3) allow for every American woman and man, black and white, landowner and renter to metaphorical sign a new, improved, and updated social contract. A social contract that reflects the progress of the past two centuries and staves off the dangers of the forthcoming dystopian society.

A Vision for Post-2020 America

Any constitutional convention hoping to diffuse the tensions that exist in America today at minimum must address the following issues:

1. Environmental rights. From the Flint, Michigan water disaster to the Ogallala Aquifer the rights of citizens as it pertains to the environment, including whether the Ninth Amendment allows for citizens to sue the government for environmental degradation action(s) or inaction(s), as well as any rights of the environment, itself must be laid out in a future constitution.

2. Gun rights. The panoply of rights allowed by the Second Amendment should be clarified. Two fundamental votes should be cast — one more clear and less ambiguous than the other. First, an up-or-down vote to determine if the words “[a] well-regulated militia” should be dropped from the Second Amendment. Should the first vote pass, no second vote should be taken, and the Second Amendment should be determined to be a near absolute right. Should the first vote fail, a debate should ensue as to the limitation of gun rights. Subsequently, an up-or-down vote should occur as to the limitations of the Second Amendment.

3. Data privacy rights. The Fourth Amendment should be altered to ensure each persons’ right to ownership of their personal data across platforms. The right for each person to be secure in their person, place, homes, and data streams and information.

4. Antitrust amendment. The Sherman-Antirust Act — the chief law on monopolies — should be revisited, modernized, and elevated to an amendment. Citizens should be conferred with legal standing under the amendment.

5. Article I updates. As made apparent by the current politicking in our governmental process over the last three decades several Article I must be revisited. Issues including: (a) the emoluments clause; (b) Congressional inherent contempt powers should expressly be laid out in the Constitution to make them Congressional express contempt powers; © a requirement that every bill be given an up-or-down vote, while allowing the speaker to retain control of the schedule; (d) limitation of party politics in the government process.

6. Article II updates. Discussion and debate on the limitations, use, and effect of Presidential Powers must be undertaken. Discussion and debate should include: (a) the use and limitations of Executive Orders; (b) the Impeachment Clause; (c) if Presidential candidates should be required to disclose their tax returns; (d) Presidential War Time Powers should be discussed, and (e) amendments drafted and voted upon.

7. Article III updates. The Supreme Court should be expanded to 13 justices. Each justice should have a lifetime appointment. Nine justices should be selected as is the current process for the nomination and appointment of Supreme Court Justices. The remaining four justices should be selected by direct election at the next presidential election held after the passage of this amendment.Election of the remaining four justices will help to ensure citizen participation in the judicial process. The theory of change being that, citizen participation will promote great reverence and respect for the judicial branch and its decisions.

8. Federal legislation. A petition-making process should be established to allow for citizens to propose and require federal legislators (i.e. Representatives and Senators) to draft and introduce proposed legislation when the requirements are met. The process should be similar to, but more definitive then the petition-rulemaking process established in the Administrative Procedures Act.

9. Abortion. A proposal asking if the decisions in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) should become a constitutional amendment should be set-forth. Should the proposal pass the rights and decisions conferred in those decisions should become an amendment. If the proposed amendment fails, the question should be laid to rest at the convention.

10. Education. Two essential questions should be developed. The first being if education, K-12, is a constitutional right. The second question pertaining to K-12 education quality — whether K-12 students are entitled to more than a de minimis education. Further, the second question should be developed to determine a factor-based test for quality education that should guide future Supreme Court decisions.

11. Death penalty and life sentences. Plain and simple, an amendment should be debated on whether the death penalty still deserves common place in present day and future America. Additionally, an amendment should be developed to determine if, and at what point in time, does a life sentence become the legal equivalent of a death penalty sentence?

12. Healthcare. Is healthcare a right and obligation of the federal and our state government? If so, what are the outbounds of that right?

13. The remnants of slavery. A discussion, debate, and amendment should be developed calling for the ad hoc establishment of truth commissions. The truth commissions goals shall be similar to goals of the truth commissions created and assembled around the world to serve as a forum for airing and reconciling human rights violations. The amendment should establish a commission structure as to avoid the array of shortcomings and address criticisms faced by other truth and reconciliation commissions assembled around the world. A commission should be established every 50 years to address human rights violations of the past half century. The commission work should last one year and subsequently be dissolved. Prior to dissolving, the commission should make a recommendation to Congress if reparations should be granted to any group or class of individuals for past harms. Further, a constitutional article considering the payment, process, and method of payment for reparations for slavery should be debated and voted upon.

14. All things elections. The multitude of concerns regarding elections should be debated and amendments proposed on each aspect of the following elections aspects: (a) gerrymandering; (b) money in politics; and (c) minor party representation on the ballot and in the debate and elections process.

A majority of topics above have been stated with no specific constitutional question inquiry. The reason for the general drafting is to encompass the multitude of perspectives on the topic while providing for the fungibility in debate on each topic. Further, the convention’s focus should be on developing a fundamental guiding document that will ensure our democracy’s future. The topics are developed to also assuage the present-day tensions inherent and developed in today’s society. While the number of possible topics that could be considered at a constitutional convention are almost boundless; addressing the fourteen topics above will be a meaningful step forward in human relations in America.

Rules of the Convention

Since the Constitution is silent on a number of details on the happenings at a constitutional convention, if one was to be called, it is important that a number of key rules are established in any state legislature passed resolution calling for a constitutional convention. Rules needing to be established before the inevitable politicking and multitude of political factions take hold of the process. Rules that outline key tenants of the convention’s flow and process. Below is a list of key items derived in part from the Center on Budget and Policy Priorities States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues , and suggestions for item functionality, that should be established in substantively identical state legislature voted resolutions calling for a constitutional convention:

1. Convention agenda. The convention mandate should be broad enough to allow the delegates to the address the broad swath of issues. While running the risk of a convention being a “free-for-all”, a broad agenda would guard against any claims of the convention going beyond its mandate. In turn, a broad agenda will help prevent claims of constitutionality of any passed amendment. To prevent from chaos and coming out with a constitution that is even further removed from addressing the issues of the day, the agenda at minimum should be sure to have amendments addressing the issues raised under a vision for post-2020 America. Each of the issues raised must be discussed, debated, and an amendment altering the status quo of law or policy shall be developed.

2. Convention delegates. Each state should — by direct election — select a number of constitution convention delegation members. The number of delegation members shall be equal to the number of convention committees plus one. The number of convention committees should be determined by the number of agenda topics to be discussed and debated, as reflected above in vision for post-2020 America. The additional delegate selected, by direct election among the citizens of each state, shall be the lead delegate responsible for drafting, proposing, and voting on amendments on behalf of the state. The delegates voting power will be constrained as outlined in the convention ratification process below. Empowering each state’s citizens to vote for a delegate will help to ensure the process contains the people’s voices.

3. Convention ratification process. All amendments proposed at the convention should be required to have an up-or-down vote, with all lead delegates casting a yay or nay vote with no possibility of abstention, aside medical emergency. Considering the states are calling for the convention, the votes cast by the convention lead delegates should be considered representative of and binding on the states as if passed and approved by the state legislature. Further, let it be clarified that each state shall be allocated one vote. The lead delegate’s vote from each state shall be determined by a simple majority vote of the entire elected convention delegation. A simple majority being defined as half the total number of delegation members plus one.

4. Constitutional authority over the convention. Any disputes arising out of the convention should be deemed to be within the original and exclusive jurisdiction of the U.S. Supreme Court. All disputes should be required to be resolved within 21 days of being submitted to the Court. Further, rules should be set regarding the limitations on the nature and type of disputes that may be submitted for resolution to the Court.

5. Timeline and structure. The convention shall convene on Constitution Day, September 17, 2021, and must conclude its work by September 17, 2022. The first month shall be to establish and vote on a structure for the convention delegates to engage and complete its work. Any challenges regarding the convention structure shall be resolved by simple majority among all convention delegates. A simple majority being defined as half the total number of delegation members plus one. All topics to be considered must be discussed within the first six months of convening the convention. The first three months of convening must allow for public input on convention topics and issues to be included in potential amendments. During the next three-month period following the convening of the convention, delegates must be allowed time to hold hearings and engage in the deliberation process. Subsequently, three months should be allowed for the development and drafting of constitutional amendments. Every amendment proposed shall receive a vote. The last three months following the convening of the convention shall be reserved for voting on amendments.

Conclusion

As the delegates to the 1776 Constitutional Convention emerged from Independence Hall, a group of citizens approached revered delegate, Benjamin Franklin, and asked “what type of government do we have?” To which Benjamin Franklin responded, “A republic, if you can keep it.”

Benjamin Franklin’s now infamous response has been catapulted into American media and discourse. During the fourth United States Presidential Impeachment in history, United States House of Representatives Speaker Nancy Pelosi quoted Benjamin Franklin’s response to the eager citizens. Speaker Pelosi invocated Benjamin Franklin’s simple but powerful response to the eager citizens as justification for the necessity to proceed with impeachment proceedings. Be it your adamant agreement that President Trump should have been or should be impeached or vehement belief that he has been or is being given a raw deal, our republic is in peril. A republic if we can keep.

While every issue is not addressed above, the topics that brim over with tension and necessitate urgent discussion, debate, and amendment development are included. The list is sure to aggravate and aggrieve many but the key take-away will be our propensity to once more do a great work and stave off our self-destruction.

Accordingly, I call upon every American to make it their duty to ensure that our country inures another century. The challenges of our time are numerous and intricate, but we cannot go forward together until we determine the principles we wish to live and operate by and under. I task every American with making it their solemn mission to accomplish these three tasks: (1) speak to another American you often disagree with about what they believe is the number one issue plaguing our country and how we can fix it; (2) call your state representative and state senator and demand that a constitutional convention be called for beginning September 17, 2021 for the purpose of examining the Constitution in its entirety and making amendments to ensure the preservation of the union and the inuring of the blessings of peace and liberty for the next century; and (3) come Constitution day 2020,Thursday, September 17, 2020, let every American march to their state capitol to demand that once more the sons and daughters of American liberty, slave owners and slaves, Jews and Muslims, democrats and republicans, conservatives and libertarians come together to truly form a more perfect union.

Sincerely and with hope,

Donald Wiggins Jr., Esq.