amending the Constitution

amending the Constitution

About a year ago, I was fortunate enough to be able to participate in a debate at Austin’s Dionysium. The resolution was “The Constitution of the United States should be rewritten,” and I argued in the negative. My position was that the political moment in which we currently live was such that a) we probably could not even come up with a new document that would meet with sufficient approval; b) even if we did, the resulting constitution would probably be worse than the one that we have now; and c) if the effort failed, it would weaken support for the current Constitution under which we currently live. “My argument,” I said in my opening statement, “is not that the Constitution is without flaws. Instead, it is that no matter what these flaws may be, the probability of improving it in the current political climate is vanishingly small and the possibility of winding up with something much, much worse is all-too-likely.”

I won that debate, but the position I took was a bit of a cop-out. My argument was more against the Age of Trump than for the current Constitution. I did not really engage the truly interesting question that the resolution raised: is the Constitution itself, which Americans tend to venerate reflexively, badly in need of repair? To answer “yes” is to claim that our government is ineffective or unjust, which is a rather serious problem. The answer I gave allowed me to avoid taking a position on that question.

Source:  The Federalist

The truth is that I do not really know what I think about the issue. I have thought about it a lot since that debate, though, wondering about the extent to which I would want to change the Constitution if I could. Of course, the conventional channel through which this is done is the amendment process. So I began to wonder how I might want to amend the Constitution. I considered amendments that I found to be desirable, without regard to what might or might not be politically feasible. The one condition that I did put on myself, however, was that these had to be amendments that I thought were in the vein of good government or improving justice or fairness, rather than simply implementing my own personal political program. I fully recognize that pretty much everyone believes their own political preferences to represent nothing but technocratic efficiency and a commitment to human rights. And a constitution is an inherently political document. But Constitutional tradition in the US does attempt to draw a line between those issues that represent the push-and-pull of contemporary politics and those that establish the rules by which those battles can take place. So while someone else might say that my proposed amendments represent nothing more than my own political wish-list, I can say in good faith that I did not advance them in that spirit. Along similar lines, there are many policy implementations that simply do not rise to the level of a Constitutional amendment, and should be passed through the regular legislative process. Lest you have any doubts, gentle reader, I can assure you that I do have a wish-list of policies and programs that I would love to implement. But I did not put them on this list.

Having said all that, the amendments to the US Constitution that I believe are necessary and important are as follows:

  • The First Amendment should be amended to specifically guarantee the rights of those who profess no religion and to protect the rights of journalists not to reveal their sources.

  • The second amendment is simply not clear and needs to be rewritten.

  • The ideals of the Civil Rights Act of 1964 are important enough, in my view, to merit Constitutional status. Commerce and public accommodations should be as free of discrimination on the basis of “race, color, religion or national origin” as well as gender, age sexuality. I would generally be inclined to add the Equal Rights Amendment to the Constitution, but believe that this new amendment would contain the same guarantees.

  • Lame duck sessions of Congress should not be allowed except in cases of national emergency to be declared by the president. Presidential powers should also be restrained in this period, but I’m not quite sure how to do this.

  • There are a host of issues and problems these days that relate to voting. Perhaps one amendment could deal with all of them. To my mind, it would start with recognizing the right to vote of all citizens and legal permanent residents. (There is currently no federal right to vote.) I would also like to see such an amendment commit the nation to the position of “one person, one vote” as articulated in Baker v. Carr (1962) by disallowing gerrymandering, defined as districts drawn with the effect of diminishing the voting power of any political or racial group, or geographic or urban region, and requiring politically neutral bodies to draw political districts. The amendment would also require a direct vote for president and vice-president, ending the antiquated electoral college. Finally, it should require that voting systems be secure and that they allow for a hand recount.

  • All age requirements for office-holders should be abolished at every level of government. Anyone who is old enough to be elected to an office is old enough to serve in it.

  • The very long lifespans that people are fortunate enough to enjoy today mean that Supreme Court justices can be insulated from political pressure, as the framers intended, without making their appointments last until the end of the justice’s life. Additionally, under the current system an elderly justice who is ready to retire might hang on a few extra years if the current occupant of the While House is not of the same party as the justice. This can be inefficient and, in the case of a justice who is not in good health, somewhat macabre. Very long terms of, say, twelve to eighteen years should meet all of the relevant needs. Additionally, I was rather troubled by Senate Majority Leader Mitch McConnell’s handling of President Obama’s final pick for the Supreme Court. McConnell did not allow Merrick Garland to receive a confirmation vote from the Senate, on the grounds that his nomination came too late in Obama’s term for Garland to be considered. McConnell, in my view, exploited a Constitutional loophole for partisan gain, which had the effect of undermining the separation of powers. This is simply unacceptable, and this loophole should be closed. The new amendment should say that Supreme Court nominees must be declared by a certain point in a presidential term and voted on within a certain number of days after nomination. The amendment should also say that if a nominee has not received a vote by a certain number of days after a nomination, he/she will be considered confirmed. The backlog of lower court nominees also strikes me as a disgrace. I do not know as much about that, but it seems possible that this proposed amendment could apply to them too.

  • The filibuster is anti-democratic and should be abolished. If some have concerns (that I do not share) that a majority vote of the Senate is not sufficient to ensure proper representation, then they should write supermajority requirements into the Constitution.

  • The presidency of Donald Trump has exposed the need for some clarity in our expectations of those who run for and occupy the nation’s highest office. A new amendment should require that the president put his/her financial assets in a blind trust, divest of any assets whose relationship to public policy are too obvious to be hidden by a blind trust, and disclose the nature of all held assets to the public when declaring for the office (i.e., share his/her tax returns). President Trump has created a lot of confusion about whether he has violated the emoluments clause when, for example, foreign dignitaries stay at his hotels. I would think that this amendment would make further refinement of the clause unnecessary. If not, however, the emoluments clause itself might need to be clarified.

  • Much ink has been spilled over “corporate personhood.” This legal doctrine is not entirely without its uses. It allows for the separation of the ownership and the management of a company, keeping passive investors from being on the hook for corporate malfeasance of which they may have been completely unaware. By the same token, however, the separate identity of the company and its shareholders should mean that the former is on a short leash, quickly dissolved when it causes problems. Instead, however, the mere presence of an identity has made it easier to imagine that this entity has Constitutional rights, such as the freedom of speech (as in Citizens United) and of religion (see Hobby Lobby). An amendment that would address this situation most effectively, in my view, would be one that states simply that all of the rights articulated in the Constitution are meant to apply to actual flesh-and-blood human beings. Corporations or other entities would not be forbidden these rights, and they might acquire them through legislation or case law. But these rights should not be presumed, and they should always be subject to revocation.

  • Campaign finance is a mess, primarily because the first amendment makes it difficult to rein in campaign spending and the consequent need for candidates to raise money. This state of affairs rests on the notion that “money is speech,” one with which I, unlike many on the left, do not disagree. If a law were to forbid me from donating to my favored candidate, I would feel as though I were denied a fairly basic form of political expression. But the contention that donating money is a form of political speech, even if true, does not imply that nothing can be done about the problems of campaign finance. It only means that such efforts would fly in the face of the First Amendment’s injunction that “Congress shall make no law…abriding the freedom of speech.” But as soon as we become willing to declare an amendment in order to address this problem, anything becomes possible! There are any number of proposals on this subject floating around. Two seem particularly attractive to me: my new amendment would empower Congress and state legislatures to cap campaign spending in their respective jurisdictions, and it would forbid candidates from accepting donations from any entity that is not allowed to vote in the relevant election.

    Regular readers might have noticed that I have redesigned the website (a work in progress) and that I have eliminated the comments section. The latter is because, well, no one ever commented in them. If you’d like to offer feedback on any of my proposed amendments, or suggest some of your own, I’m easiest to find these days on Twitter. But I also have a Facebook page and you can try me there as well.

recommendation: Anne Applebaum's article in current "Atlantic"

recommendation: Anne Applebaum's article in current "Atlantic"