Friday, October 17, 2008

What Would You Change?

I've got a simple discussion question for you.

If you could single-handedly amend the Constitution, what amendment would you choose as your top priority? If you could choose second and third choices, what would they be?

If you're short on ideas, here's a list to get you started.



Kevin said...

What a good and difficult question. The list you link is helpful. One stumbling block is that I'm just not sure if amending the US Constitution is the best solution to some of our problems.

I don't know what my top amendment would be. One of my top priorities is to fight against corruption and for greater accountability, transparency, and openness in government. However, I haven't thought about how to craft that as an amendment.

I get the sense that the financial relationships between the government and the private sector breeds corruption, bad deals, and needs serious reform. If the government must fund projects, the result and IP should be publicly owned, open source, and free. The government should encourage clarity, free and open standards, along with effective and fair comparisons in the market.

Another way to reduce federal corruption is to simply give the federal government less power, shifting it locally.

But to get back on topic, here's a few amendments from the list which I like:

""" To clarify eminent domain, specifically that no takings can be transferred to a private person except for transportation projects.

Kelo amazed me. This might not need to be a Federal amendment, but something like it probably should be. While we're at it, clarify legal semantics and the principles of Constitutional interpretation.

""" To force the members of Congress and the President to forfeit their salary, on a per diem basis, for every day past the end of the fiscal year that a budget for that year remains unpassed.

I like this one largely because it provides actual consequences for violations. I've read about time stopping, shell bills with substituted text, etc. in order to get around rules. Either the rules are bad or they should be enforced. In either case, Congress's benefits should be tied to performance on many issues.

""" To provide for run-off Presidential elections if no one candidate receives more than 50% of the vote

I'd like to see some sort of IRV implemented everywhere, but does that need to be an amendment? Maybe.

There's a bunch of other ones I find interesting: proposing amendments with 2/3 of all state legislatures, judicial terms, state controlled term limits for Congressmen. And several where I'm curious if there is a signficant need: e.g. to prohibit retroactive taxation, provide for removal of any officer of the U.S. convicted of a felony, prohibit courts from instructing any state or lower government to levy or raise taxes, prohibit the early release of convicted criminals.

I think it would also be interesting to discuss which amendment proposals are among the worst. For me it's the various social "rights" to be provided by the government (such as the right to a home), and removing the 2nd amendment, and lifting term limits for President, etc.

I'm curious what everyone else here thinks.


MarkC said...

I guess I should answer my own question.

My first priority would be a matter of procedure, not of policy. I believe that the current imbalance between the branches of government needs to be rectified.

The imbalance is that the Supreme Court can invalidate an action of either the legislative or executive branch on the basis of Constitutional interpretation (which is often quite far from the actual contents of the Constitution itself)... but neither the executive or legislative branch can return the favor. The judicial branch of government has the ultimate power... once it tells the other two what must be done, that is the unalterable law, except by Constitutional amendment.

So, rather than amending the Constitution for each of the areas where "we the people" might feel the judiciary has gotten it wrong, I propose that we restore some balance, making it easier for our elected bodies to overrule the Supreme Court on matters of Constitutional interpretation.

Here's my proposal: Allow Congress to pass a new type of law... call it a "Binding Constitutional Interpretation", or something of the sort. To pass a BCI, the proposed BCI would have to be submitted to the governor of every state for review at least 30 days, but not more than 60 days, before any vote was held. At least 2/3 of the governors would have to submit their approval of the law during that 30-60 days in order for it to reach a vote. It would then have to pass both the Senate and the House with 2/3 majorities, and be signed into law by the President.

These measures (especially the involvement of state governors) would prevent BCIs from becoming over-used. It would ensure (again, largely through the involvement of governors, and through the 30-day waiting period) that there was visibility into these laws and time for public feedback.

On the other hand, avoiding the involvement of state legislatures would lower the bar enough that we might see some of these actually proposed. Putting the approval requirement on a single person from each state and shortening the timeframe from 7 years to 30 days increases the accountability, which would force governors to make a clear decision on the matter.

The other key advantage of a BCI over a constitutional amendment is that a BCI can be removed, like any other law can, and can deal with smaller issues that we don't want cluttering up the Constitution. You end up with a bloated Constitution if you keep amending it. I'd like the Congress to be able to overturn the ridiculous Kelo ruling, for example, without having to add an otherwise meaningless Constitutional amendment.

A BCI would not be open for Supreme Court review, but would be considered to be as binding on the Supreme Court as any other part of the Constitution.

There are obviously lots of things that could be tweaked about this proposal, but I think that something along these lines would be very helpful.


Kevin said...


Interesting idea -- a play off of the one involving state legislatures? I think the Congress is often at fault for ignoring the vast common ground, avoiding issues, and leaving them to the courts. I'd like to fix that, too.

Is BCI a superset of the current US Amendment process? If so then it sounds like BCI would primarily serve to permit governors to initiate US Amendments with a 2/3 vote of governor support within 30-60 days of the governor's proposal. Is this correct?

I don't see anything objectionable about that.

But I'm unclear how a BCI would be different from an Amendment. You mention that a BCI can be removed "like any other law" -- do you mean by a simple majority vote? Are there other ways in which a BCI is less than an Amendment?


MarkC said...


I do not envision governors being able to initiate BCIs. I guess there's nothing objectionable about that... but I doubt that it would happen any more often than state legislatures have initiated Constitutional amendments (as in, never).

A BCI does not change the text of the Constitution. This is an important psychological and logistical difference. I envision a BCI being passed or removed every few years or so. Nobody wants to deal with the headache of a Constitution that grows bigger every few years.

The Constitution, psychologically, is supposed to be the description of the underlying principles that define and guide our nation. BCIs would not be descriptions of underlying principles... they would be specifics of the interpretation of those principles. In some cases, they may even be temporary in nature. A BCI could be written with an expiration clause, just as many laws are. A Constitutional amendment does not have that level of flexibility.

A BCI could only be removed by another BCI, or a sunset clause written into the BCI when it was created.

The Constitution deals in principles. BCIs deal in interpretations. Right now, the Supreme Court has great freedom in interpreting the general principles of the Constitution, and they have no accountability to anybody in their exercise of that freedom. The purpose of BCIs would be to restore some balance by making it easier for the legislative and executive branches, working together with the states, to overrule the Supreme Court on a matter of Constitutional interpretation.

I never want to see us write an amendment to the Constitution reversing Kelo in any specific manner. That's too specific, too interpretive, to be in the text of the Constitution. But, neither do I want the word of the Supreme Court to be all-powerful with no accountability. We need some recourse as citizens when the Supreme Court botches a ruling like that... and currently we have none. A BCI system would give us that recourse, to reverse specific Supreme Court rulings and say, "The Constitution actually means THIS... you're WRONG". The legislature (as representatives of the people) should have that power.


Kevin said...


Sorry, I originally missed that you removed the ratification by 3/4 states.

I agree that it should be easier to overrule bad court rulings, but I think we have a couple of hurdles to overcome:

(1) Who resolves conflicts between the Constitution and BCIs? Or between BCIs?

(2) Why ever amend the Constitution when a BCI is easier and the difference between the two seems to be organizational and psychological rather than effectual?

Hmm... what if BCIs were limited to judgements in specific cases? In other words, a BCI could only overrule a single, specific court judgement and essentially create a judicial precedent?

Maybe this is also largely psychological, but it is at least superficially restricted to being an additional check on the Judiciary, leaving a principled role for Amendments.

Actually, it occurs to me that this may be what you had in mind all along! Sorry, if I'm slow. :)

I'm sure there are numerous details, but among them should also be some requirements of necessity, clarity, aptness, simplicity, and directness to avoid abuse. I think it will be incredibly tempting to insert additional language or find minor court cases to serve as a basis for a crafty BCI. Actually, I'd like to see similar requirements for all laws.


MarkC said...


"Who resolves conflicts between the Constitution and BCIs?"

By definition, there can be no such conflict. A BCI is a "binding" interpretation of the Constitution. Therefore, by definition, it is consistent with the Constitution.

"Who resolves conflicts between BCIs?"

The Supreme Court would handle that in the same way that it handles conflicts between other competing laws.

I do not like the idea of putting strict restrictions on what kind of BCIs can be written, or what they can apply to. This gives the Courts the ultimate authority to approve or nullify a BCI.

Instead, I want to require BCIs to have very broad support and visibility. That high barrier to entry will, I would hope, prevent abuses and superfluous addons.

There also would be no way for Congress to paste extraneous amendments onto a BCI. The BCI, in its final form, would have to be distributed to the states then approved by 2/3 of the governors at least 30 days before any vote could be held. There could be no rushed BCIs hurried through the system... and there could be no last-minute amendments sneaked onto a bill. Those are two methods commonly used in Congress to pass bad laws without visibility, but my BCI rules would prevent those situations.

You refer to a "crafty BCI". I'd be interested to know if you can think of an example of what you think might be passed as a BCI, and how that would happen. I have a hard time, considering the 30-day waiting period and the necessary involvement of all the state governors (even if they don't all end up approving), envisioning how anything crafy could be snuck through the process.


Kevin said...

Mark wrote: "I do not like the idea of putting strict restrictions on what kind of BCIs can be written, or what they can apply to. This gives the Courts the ultimate authority to approve or nullify a BCI."

I see what you mean: how would we enforce that a BCI must be appropriate and concise except through a court judgement, and those qualities can be too subjective.

How about restricting BCIs to overruling specific cases? That seems to be an objective measure that could be reasonably enforced, and allows the BCI process to act as a higher court rather than as an effective replacement for Amendments.

Regarding "crafty" BCIs, I was thinking of laws which sound reasonable but whose full consequences are not clear. I think lobbyists spend their time crafting and pushing such legislation, though they do have specific consequences in mind.

e.g. I'm not well educated on the topic, but the post "Cautionary Lessons from the Great Depression" came to mind.

Maybe the mother's health exception is another example of how a reasonable clause can effectively render irrelevant the balance of interests.