Organizing Legislative Text – Amending the Founding Documents

Overview

The Founding Documents of the United States are authoritative and supersede or override the US Code and all State Penal Codes for US Citizens only. Permanent residents can be required to obtain licensing and permits to exercise some of the rights that US Citizens have but issuing of these licenses and permits is not guaranteed. Visa holders and temporary residents are less likely to obtain these licenses and permits and are usually issued on a case by case basis but require strict compliance with the US Code.

There are a total of 4 Founding documents

• Declaration of Independence
• US Constitution
• Treaty of Paris
• Bill of Rights

Amendments 11 through 27 fit into one of the existing Articles of the US Constitution or the Bill of Rights which is an addendum to the US Constitution so it does not need to be a separate document.

Because the US Constitution supersedes the US Code and all State Penal codes and because future amendments can not delete or modify existing text of the US Constitution, it is important to think of future amendments with care and to reflect on the purpose of a constitutional document before adding another amendment. A constitutional document declares the existing rights of Citizens and provides directives for government on managing the government. It does not contain any specific legislative text and can be compared to the Articles of Incorporation and Bylaws for a Corporation as an analogy where the Articles of Incorporation are the US Constitution and the Bylaws are the US Code.

Why is the Bill of Rights an Addendum?

The Bill of Rights outlines specific rights not included in the original text of the US Constitution and can be counted as an additional document to the US Constitution rather than a modification of the original articles of US Constitution. There is no section that in the US Constitution that would make sense to label “Citizen Rights”.

The US Constitution gives requirements for eligibility to be a Senator, Congressperson, President or Vice President, it mentions lawsuits between citizens of different states and citizens and a state or foreign nation. It also mentions privileges and immunities of the several state but does not declare what those privileges and immunities are. For these reasons, it makes most sense to organize the Founding Documents so that the Bill of Rights is an addendum to the US Constitution.

• Lexico, powered by Oxford provides a definition for the word addendum.
• We Agree, a contract drafting website provides guidance on using articles and sections.
• We Agree, also provides guidance on using amendments, supplements and addenda.

When thinking of the Bill of Rights as an addendum to the US Constitution, amendments 13, 15, 19 and 24 could be amended as additional text to the US Constitution Addendum Bill of Rights. It is possible to organize the US Constitution and Bill of Rights in this manner without altering the meaning of the founding documents because that organization method would be legally valid under contract law since the US Constitution already organizes its Articles into specific topics.

• Article 1 covers Congress and the Legislative Branch of Government.
• Article 2 covers the President, Vice President and the Executive Branch of Government.
• Article 3 covers the Judiciary and Judicial Branch of Government.
• Article 4 covers States and other Territories.
• Article 5 covers Rules for Amendments.
• Article 6 covers Hierarchy of Law and International Treaties.
• Article 7 contains Signatures and Ratification.

Here there are two logical options, to amend the constitution so that Article 8 would be the Bill of Rights or to add an addendum with the first 10 amendments and amendments 13, 15, 19 and 24 as a document titled Bill of Rights. The first option looks disorganized and unprofessional so the second option is the most logical. Another option would be to add each of the amendments underneath the signature but that presents us with the problem we have today with disorganization and having to reference the original text and multiple amendments to ensure the text of future amendments is valid.

To be clear, an amendment is a modification to an existing contract. For example, deleting text; modifying the terms of a specific paragraph, section or article; or adding something to the existing text that clarifies meaning of the terms of a contract. However, because of US Constitution Article 6, Paragraph 2; existing text can never be modified or deleted so the only valid amendment for the US Constitution is adding additional terms.

In normal circumstances, amendments are made on contract drafts before or after a contract is signed and reviewed by all parties before signing off on the amendments. When amending a signed contract, amendments are proposed and an effective date is set for the new contract to become active with the amendments that were agreed to. The old contract then becomes immediately void. Amendments are usually minor edits and a new contract is often done simply for legibility. Both contracts are kept for historical purposes and to establish continuity for length of contract.

An amendment can not modify significant portions of a contract because under contract law this would make the new contract unenforceable due to  lack of clarity and render the new contract void. The reason a heavily amended contract would be declared to have lack of clarity is because a judge or jury would need to reference two different contracts and determine how each amendment modified the original contract. This can be time consuming and considered unreasonable therefore the new contract would be declared void and unenforceable due to lack of clarity and the old contract would be the effective contract unless it had expired.

Due to these rules of contract law, when amendments are made to a contract, usually a new contract is written that includes the amendments and voids the old contract upon the new contract becoming effective. It helps to think of the constitution and amendments in terms of contract law because all constitutions are contracts between a nations citizens and its government.

In contrast to an amendment, an addendum is added to a contract when no text exists within the original document to cover those topics or to add clarification to. An advantage to using addendums rather than amending the original document indefinitely is that it simplifies making future amendments, in the case of the US Constitution and the Bill of Rights when the Bill of Rights is used as an addendum, the addendum can be modified without changing the terms or meaning of the original contract. Another way to think of it is that addendums are subcontracts or subordinate terms to the primary contract and as long as there is no conflict between the addendum and original contract, the addendum would be considered valid and in force by any reasonable court.

With this format in place, amendments 13, 15, 19 and 24 would be included as amendments to the addendum Bill of Rights instead of amendments to the US Constitution because the amendments and the Bill of Rights both fall within the topic Citizen Rights. It would be useful to version both the US Constitution and Bill of Rights by year and The Bill of Rights would also have further clarity if it were titled Declaration of Citizen Rights with Bill of Rights as a subtitle or Bill of Rights with the subtitle Declaration of US Citizen Rights.

Versioning The Founding Documents by Year

Versioning legislative text by year is not a new concept, the UK does this with Parliamentary Acts consistently and the US has begun to do this with some of its Congressional Acts but it is not consistent yet. The US Code is also released by year and this is visible on Justia. This format of versioning legislative documents by year should become an international standard as it makes it easy to find the latest version of a document and examine world events that occurred during an amendment to legislative text within a nation. Both of these issues are  important when examining nations constitutions, citizen rights, human rights and international treaties and documents registered at the UN.

Using the Declaration of Independence, The Treaty of Paris, the United States Constitution and Bill of Rights as an example, the versioning for these documents would look like the following:

The Founding Documents probably shouldn’t be amended as most legislation can be done within the US Code, through Public Law and by International Treaties and Agreements. These documents should be treated as historical archives that are still valid and in force and that all existing legislation should comply with. To use an example for text that might be amended into the Constitution would be Citizen Rights for voting or rights of the States. However, both of these would need to be compliant with pre-existing text so it makes more sense to work on updating the existing US Code and all valid and in force Public Laws into modern and easily understandable English.