Arguments for my replacement Bill of Rights: The second and third mandates of Congressional Power

The second and third mandates which grant Congress additional powers in my proposed replacement Bill of Rights are as follows:

2. Congress shall, by law, determine when the actions of an individual violate these rights of another and are therefore indicative of a deficit of reason.
3. Congress shall, by law, determine the consequences for such violations of rights up to and including temporary or permanent limitation or revocation of these rights

These mandates grant Congress wide authority to and responsibility for the creation of criminal laws and the various punishments for violations thereof.  The authority to and responsibility for the creation of criminal laws has formerly belonged to the states, with the intent that the various states can determine their own special requirements for justice and legislate to fulfill these needs.  Specifically, it was formerly necessary for states in which the institution of slavery was supported to have special laws regarding slaves.  For instance, in such states, it had to be considered whether the crime of murder needed to apply to cases in which the victim is a slave or if such should fall under some type of arson or destruction of property.  Presently, such considerations for slavery are no longer necessary and the differences between criminal laws among the various states are much smaller, consisting largely of special laws that punish people for not complying with state specific regulations.  For instance, a state in which water shortages are common, and the use of water is regulated, may have criminal laws regarding violations of those water use regulations.

Normal criminal laws such as laws against murder, assault, theft, fraud, rape, and arson all involve direct violations of one or more of the rights to life, liberty, and pursuit of happiness, and as such will be the responsibility of Congress under this proposal.  Since the abolishment of the institution of slavery, it is no longer necessary for any of those laws to differ among states.  Murder is muder and should be treated the same in Oregon as it is in Georgia, as it is in all other states.  Giving the responsibility for criminal law to the federal government in combination with the proposed rights and limitations on the powers of congress ensures that issues in criminal edge cases can be appealed to and decided in the highest court with full consideration for individual rights.  This federalization of criminal law will require significant changes in judicial structure, as the federal courts will have to try many more cases than before.  The laws that Congress will need to make to create the necessary judicial structure are already authorized by the constitution in the original articles.  The responsibility for punishing many more criminals will also fall upon the federal government as a result of this proposal, and as such many prisons will need to be purchased from the states by the federal goverment.

State specific crimes, involving violations of state specific regulations do not directly involve a violation of any of the rights to life, liberty, or pursuit of happiness, and as such will remain the responsibility of the states.  These regulations are usually designed to prevent unwitting violations of the rights of others.  For instance, a state that regulates water usage ostensibly does so because if the use of water is left unregulated then individuals that use too much of the water may unwittingly violate the right to life of others and themselves by denying them access to water when the water runs out.  Another example would be a state that regulates driving speeds in residential neighborhoods because a driver that is going too fast would not be able to decelerate their vehicle in time to avoid hitting unexpected pedestrians and thus would unwittingly violate the pedestrian’s right to life.  These state regulations and the punishments for violating them can and should remain the responsibility of the states. However, the existence of such regulations may be made challengeable on constitutional grounds if they do not by some clear and provable chain of reasoning prevent an unwitting violation of the fundamental rights of others.


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