TALKING POINTS FOR A NEW ILLINOIS CONSTITUTION 1.0

Seeking the highest common denominator
Arranged with reference to sections of present document

PREAMBLE

The primary purpose of government is to be the good fence that makes good neighbors.

The primary purpose of a constitution is to be the good fence that makes government a good neighbor.

The State of Illinois is committed to a legal system based on reason, not fiat, and to human equality and dignity.

Art. I

§5. The right of petition includes proper notification of public hearings (per Art. IV, §7(a)) and is substantive, not procedural. (see Art. IV, §8(d))

§§6-11. Protection of the innocent is no idle, idealistic luxury. There is an overriding public interest in confining punishment to the actually guilty. If the prospective criminal figures, “Get it if I do, get it if I don’t,” then all the blood and treasure poured into deterrence of crime is down the drain. Blackstone wrote of the ancient wisdom of the law that it is better for ten guilty to go free than one innocent convicted and that the surety, not the severity, of punishment is the best deterrent. Criminal justice is futile or even counter-productive without sending them the message, “Keep your nose clean and everything’s cool.”

§13. Juries in criminal cases shall be instructed by the court: “You are not agents of the government. Rather, you represent the country as a whole. While you have a solemn duty to convict in the case of proven, substantive malum in se offenses, you likewise have a solemn duty to consider the best interests of society in the case of factually proven malum prohibitum offenses.”

§15. Takings by eminent domain shall be limited strictly to public use, as opposed to "public purpose," except for vacant or abandoned property.

§22. The phrase, “keep and bear arms,” as used in the Second Amendment and here, means to serve in the militia, as can be seen in the context of the debates in the First Congesss on the Bill of Rights. See Art II, §3 (c)

§25. Wasteful, excessive government spending and destructive taxation raise the cost of living and requires extra time to earn a living. Thus they infringe on the right to freely conduct one’s affairs. It is a further infringement on the power and right of the parent to be the primary educator of the child. Provisions of this constiution are designed to curb such spending and taxation.

Art II

§2. Powers not enumerated are not to be exercised. This instrument enumerates ample powers to cope with emergencies.

§3. Boundaries between state and federal power:

(a) 1. As the basic level of government, from which the federal and local levels spring, it is the province of the state level of government to specify the commencement of legally protected life, upon which the termination of pregnancy becomes a public matter subject to public regulation.

2. Termination of pregnancy is hereby deemed a public matter when the unborn child has detectable brain waves and thus becomes a separate, sentient being.

3. The pregnancy of a minor child shall not be terminated without consent of the parent or guardian or without court supervision in case of abuse. Under no circumstances is it to be done without a proper assessment of the father’s responsibility, including criminal and civil prosecution as appropriate.

4. It is the province of the state level of government to specify the termination of legally protected life. The General Assembly shall make this determination from time to time consonant with advancing medical science. Human life shall be protected if there is any remote possiblity of restoring sentient function. Extraordinary measures shall not be required if there is no such hope. The equivalent of a murder investigation shall be made in the event of a sudden, unexplained lapse into a comatose condition. (per Fuhrman book on Terry Schaivo)

(b) The State of Illinois has the same authority to regulate recreational drugs in intra-state commerce as it did to regulate alcoholic beverages before the 18th Amendment. It considers any claimed federal authority in that matter a usurpation. It considers the recent Supreme Court decision allowing alcoholic beverages to be delivered by mail regardless of state law a violation of the second section of the 21st Amendment.

(c) The State of Illinois asserts its power to maintain a well-regulated militia subject to Congressional authority under Article 1 §8. It rejects as usurpation any purported legislation requiring state militiamen to join the Army Reserve or authorize their conscription into a federal army. These are violations of the militia powers and the Second Amendment. See Art. I, §22; Art XII.

(d) There is no enumerated power in the United States Constitution to make anything other than gold and silver a legal tender.

Art. III

§7. There is an overriding, paramount public interest in honest elections. The Attorney General and States Attorneys have the power and duty to take legal action in event of fraud and for recounts in close elections at a candidate’s request.

Art. IV

§1. There shall be a legislative power to veto tax and spending legislation vested in an elected Taxation and Spending Veto Commission. The long standing constitutional principle against public taxation for private purposes long being more honored in the breach than in the observance, it shall veto fiscal measures which unreasonably benefit one or more parties at the expense of others or which impose unreasonable difficulties of supervision on taxpayers. The commission shall function as a political body but shall also proceed in the adversarial manner of a court of law and publish reasoned decisions. See Art. VII, VIII, IX §8

(d) The State of Illinois urges the adoption of a federal single subject rule.

Perhaps the major issue in the 1970 convention was the “journal entry rule” by which legislation could be declared unconstitutional if not passed according to prescribed procedures. It was replaced by the “enrolled bill rule,” by which the presiding officers of each house certify that all procedural requirements have been met. The possibility of abuse was answered by the legislature being abhorred by any such thing. That was over a decade before the cumulative vote for three representatives per district was abolished. In the quarter century since the legislature has been dominated by the “Four Tops” holding the membership in their back pockets. That any substantial membership of the legislature would be publicly abhorred by any abuse is sheer wishful thinking.

There are Illinois cases that the enrolled bill rule applies only to “procedural” matters such as the three reading rule, but not to “substantive” matters going to the bill itself, such as the single subject rule.

The sad tale following, however, shows the folly of blind reliance on the courts to enforce constitutional matters. The enrolled bill was offered as a defense when yours truly sued to undo the appropriation for the U of I to buy the Maxwell St. market area. A group largely of Mexican vendors had gone to Springfield three times in May 1994 to stop the appropriation. The third time we were promised, on the record, that there would be a hearing in Chicago and that we would be notified. They held a hearing in Springfield, however, of which we only got wind the night before and could not confirm after hours. A phony vendors group only discussed relocation, not stopping the appropriation altogether. Legislators asked, on the record, if everyone had been notified. A lawyer filed a lawsuit but fizzled out altogether. A year later yours truly discovered the constitutional requirement, Art. IV, §7(a), for reasonable notification of legislative hearings, and filed a pro se lawsuit under that and the right to petition for redress of grievances. The Illinois courts blew off the constitutional arguments. The federal courts blew off a suit for deprivation of the right to sue as a badge and incident of slavery under the Civil Rights Act of 1866. They called it an impermisable appeal of a state court matter, never mind the very Rooker Feldman case law cited in defense and that overturning void decisions is a trial court function. It later developed that one of the Illinois appellate judges in the case, Marvin Leavitt, had been appointed by Illinois supreme court justice Charles Freeman, and both had been in business together in a nursing home. The Maxwell St. area was redeveloped by three of the cloutiest developers in the state, after the historic preservation process was sandbagged and a TIF district was used as an instrument of outright civic piracy.

§8 (e) No state budget shall be passed less than thirty days after being publically released for inspection or without public hearings being held in several locations in the state between seven and twenty-one days afterward.

Art. V

§1. Is there any good reason to elect administrative, non-policy making officers such as secretary of state, treasurer, and comptroller? What does election of such officers, on state and local levels, accomplish, except to diffuse responsibility and to burden voters and fledgling political organizations?

Art. VI

Taxpayer actions based upon constitutional or statutory provisions shall be entertained by the courts. Taxpayer objections based on equitable considerations shall be entertained by the Tax and Spending Veto Commission, per amended Art. IV, §1.

§§ 12, 15, 16. Judges shall be appointed and disciplined by elected commissions having no other business. Judicial discipline shall be subject to strict due procees. Although no one seems to notice, Chicago voters are greeted with the spectacle of voting for City officials on a non-partisan basis, but for judges as Republicans and Democrats. Judicial candidates can only mount limited campaigns, but they are campaigns nevertheless, including solicitation of support at political meetings. The winning candidates are thus beholden to the very political apparatus they are supposed to keep within legal limits. No judge has an overall responsibility for the performance of the courts. Some elections are unopposed; others have ten or more candidates. The Circuit Court of Cook County has some 160 judges, but even few practicing lawyers can keep track of more than a couple dozen. Appointed “merit” systems, by appointed commissions or executive appointment with legislative confirmation, do not get the matter out of politics nor do they establish overall accountability for the judiciary. They create fears of control by insiders and discrimination against minorities.

Judicial appointment and discipline, vested in an elected commission, is an activity the public can keep track of far more easily than judging itself. An indirectly elected judiciary ought to be the best resolution of these conflicting concerns, the best reconciliation of independence and accountability.

Art. VII

§4. Again, what is the point of electing administrative, non-policymaking officers such as clerks, treasurers, recorders of deeds, etc.? (Re Art. IV) §6.

Home rule powers badly need to be clarified and limited, in particular the power to impose taxes without referendum.

Art. VII, VIII, IX

The long standing principle that public taxation shall not be used for private purposes is more honored in the breach than in the observance. A public purpose requires some commensurate if far from exact nexus between those who benefit and those who pay. A purpose becomes private when the taxation is imposed on parties deriving only remote, diffuse benefits and separate parties derive immediate, concentrated benefits. In view of the difficulties in objectively defining these considerations there is created a Tax and Spending Veto Commission, a political body empowered to make subjective determinations, per amended Art. IV, §1.

For example, expansion of the McCormick Place exhibition hall in Chicago is partially financed by a 1% restaurant tax in an area bounded by Diversey (2800 N), Ashland (1600 W), and the Stevenson Expressway (diagonal, approx. 2300-2900 S). Vast sections of this area have yet to see a conventioneer or tourist from McCormick Place. The owners and customers of taco stands on Ashland do not derive any significant benefit from McCormick Place. Not that exhibition halls should be tax funded to begin with, but restaurants in an area, say, bounded roughly by Armitage (2000 N), Halsted (800 W), Roosevelt (1200 S), Clark (100 W), and the Stevenson do enjoy some arguable benefit from McCormick Place and tourism.

Operating funds for Chicago public transportation come largely from a 1% retail sales tax in Cook County. The substantial expense of the rush hour, however, is not imposed by retailers but by the downtown office industry, which sends everyone home at 5, but makes no contribution to transit. Meanwhile the City’s latest Central Area Plan expects office space to expand by one-third in twenty years and to need a more than commensurate expansion of public transit, but without any provision for funding.

A neighborhood newspaper reported a half-mile sidewalk renovation project in the Lincoln Park area of Chicago for $2.3 million. Isn’t that a bit high for sidewalks? Thus funding of local projects by higher levels of government creates a lot of pork barreling and civic ego-tripping. To make intelligent decisions about funding sidewalks all over the state, one would have to be intimately familiar with DuQuoin, Macomb, and Belvidere, just for starters.

Transit projects are funded 80% by federal grants, 20% by state matching funds. This is a fine way to create a junior military-industrial complex intent on doing everything the most extravagant, time-consuming manner. The current mantra among the transit agencies is “leave no federal dollars on the table.” Federal funding of local projects is unconstitutional, per U.S. v. Butler, 297 U.S. 1, 64-68.

Tax Increment Finance as practiced in the City of Chicago has created a slush fund for cutesy-pie urban renewal. Revenue from one district or a Special Service Area may be taken and used in another. Constitutional clarifications are needed to limit such diversions of funds and to require sufficient reporting. The old-fashioned Special Service Area was a straight-forward, pay as you go, easily supervisable instrument to finance local public improvements, such as sidewalks.

This is an auspicious time to discredit and eliminate income tax. There is a movement in environmental circles to tax “bads” such as pollution, congestion, land use, and use of natural resources, not “goods” such profits and payrolls. (Durning and Bauman, Tax Shift) Income tax burdens fledgling businesses. It plunges the taxpayer into an accounting morass, in which he bears the burden of proof. It offers convenient retaliation against public officials who deviate from the party line.

Income tax was introduced in Illinois by Governor Richard Ogilvie, who later was the “rainmaker” for Isham Lincoln Beale. This now defunct firm defended the Chicago Urban Transportation District in a lawsuit brought by former Chicago mayor Michael Bilandic, attacking actions for which Bilandic, as mayor of Chicago, was the elected official most responsible. He personally helped negotiate a settlement in which Bilandic and his co-counsel got a million and a quarter in legal fees. The lead attorney in the case was reportedly the libel lawyer for the Sun-Times at the time. Figure this allowed Bilandic’s subsequent election to Illinois supreme and appellate courts. Ogilvie’s trusteeship of the bankrupt Milwaukee Road raised major ethical questions, per Thomas Ploss, The Nation Pays Again.

Art. X

“Sectarian purpose” shall include philosophies that take the place of God in the life of a believer, per U.S. v. Seeger, ___U.S.___ , 1965

Public education worked tolerably well when it was locally controlled and financed, but became bureaucratic Babylon when financed and controlled at the state and federal levels, per criticism of Samuel Blumenfeld some thirty years ago.

See James Madison, Memorial and Remonstrance on Religious Assessements, the basic American document on separation of church and state, and see if the evils of state-established religion, considered intolerable two centuries ago, are not now largely repeatred in state-established education.

Parents are the primary educators of the child, if they have time for it. It is a truism of recent decades that it takes two paychecks to support a family. The problems of today's youth stem largely from absent parents. Mary Eberstadt, Home Alone America. See Art. I, §25.

Art. XI

§ 3. Health, safety, and environmental laws are not to be used for any other purpose. Evidence of extraneous purpose may be submitted to the trier of fact.

Art. XII

Militia training shall include instruction regarding the army and militia powers of Art I, §8 of the United States Constitution and the Second Amendment, including relevant exerpts of the records of the federal convention, the Federalist Papers, state ratifying conventions, and the debates in the First Congress on the Bill of Rights.

Art. XIV

§1 (a) A constitutional convention may be called by the petition procedure of §3. The matter is not to be left entirely in the hands of elected officials but not left entirely to occasional initiative either.

William F. Wendt, Jr.
wholelephant@yahoo.com
http:/beyondstateofnature.blogspot.com/