How Would You Amend The Constitution?
Former Supreme Court Justice John Paul Stevens has a new book out. In it, he proposes six new amendments to the United States Constitution. Three of these would change language in either the text of the Constitution or its amendments, and the other three are additions to the Constitution's text.
I'm not going to get into explanations of Stevens's proposals, so for more information on them, you'll have to read his book. However, here is the text of all of his proposals (added clauses are in bold), for your contemplation:
The "Anti-Commandeering Rule" (Amend the Supremacy Clause of Article VI)
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.The Second Amendment (Amend the Second Amendment)
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.Death Penalty (Amend the Eighth Amendment)
Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.Political Gerrymandering
Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.Campaign Finance
Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.Sovereign Immunity
Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
While some of these would indeed be improvements to the Constitution, some would also not be remotely acceptable politically, at least in the current climate. This is important, because of the long uphill climb of amending the constitution in any fashion.
Stevens's book is a thought experiment worth considering, though. It's an intriguing question: how would you amend the Constitution? His book is probably interesting, since he is a former member of the Supreme Court and is thus well-versed in constitutional law. I'm sure he provides his own analysis of the problems, and detailed arguments as to why his proposals would be beneficial to the country.
But I didn't write today to promote his book (especially since I haven't read it yet). Instead, I'm trolling for ideas. I'm seriously considering punting tomorrow's talking points segment and instead proposing my own six (or maybe seven, seeing as how it's the "Friday Talking Point" standard) constitutional amendments. Over the years, I've often thought of possibilities, and I want to take stock and see which of them are still worth promoting.
But I'm also open to new ideas, as always. I've posted Stevens's ideas, but I'm going to hold off revealing my own, at least until tomorrow (or whenever I write about it, if I choose to just do the regular talking points thing). What I'd like to hear today is your ideas.
Don't get hung up on political acceptability. Propose what you think is a good idea, even if you know the public largely doesn't agree. The Constitution is vague in many places, and could certainly use some clarity. There are many legal concepts the courts have struggled with for decades because things aren't clearly spelled out. This is your chance to rectify the situation.
So, if you had the power to introduce a proposed new constitutional amendment, what would it be? How would you amend the Constitution?
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
The right of the people to vote shall not be infringed upon.
Too vague?
I like some of Steven's amendments, but even I can see the workaround for the second amendment one. Go and get your militia member card at the local gun show!
Which is doubly ironic because when the militia did actually exist, it depended on federally supplied firearms that then resided in federal armories. (they took them out for "training", aka lots of drinking and the occasional marching drill, and then returned them) Hence John Brown's raid on Harper's Ferry to bring it into the narrative of history you were taught in high school.
But if I had to put forth an amendment to the constitution, hmmm...
This has mainly been reserved for wack jobs calling for a constitutional convention, they're the only ones who want to enshrine their views in the immutable constitution.
But if I had to add one, it would prohibit religious objections to science that would benefit the body politic. I'm not sure that there's a way to phrase it that doesn't lead to murderous oppression, but if there was a particular bugbear I'd like to slay. It was people (white people) using their religion as a weapon to oppress, hurt, and generally disenfranchise anyone who doesn't share their particular views on a bronze age text that was finally complied by late antiquity elites.
Not sure how I'd word an amendment, but some sort of ban on public officials becoming lobbyists and vice versa. There's too much quid pro quo involved in making laws, and not enough public interest. Not that it's anything new, and not that it's likely to change, but it would be worth changing.
YoYo-
regarding getting your "militia member card" at a gun show ignores the fact that according to the Constitution, the President is the Commander in Chief of ALL the militias. And that just won't work for the NRA and right-wingers (especially with THIS President).
I like all of Justice Stevens' ideas!
Also (1) right to vote.
To toffereriksen:
I really like your idea about the right to vote not being infringed upon but first, I think it would be a good idea if the Constitution actually guaranteed the right to vote because, currently, it doesn't. While it is implicit in the 15th (granting African American men the right to vote by declaring that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."), the 19th (granting women the right to vote) and the 23rd (granting the right to vote to those 18 and over), nowhere does it explicitly guarantee the right to vote.
I would like to suggest that a Constitutional amendment and addition to Article II should begin with words borrowed from the Gettysburg address: Government of the people, for the people, by the people guarantees and protects the right, and mandates the responsibility, of all United States citizens aged 18 years and over to vote in Presidential, Congressional, Governor and state government elections; and that this right and responsibility be not denied or abridged in any way, by any means.
The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, by a majority national vote.
Strike the second and third paragraphs and replace the fourth with:
While Congress may determine the date of national elections, the day on which they shall be held will be a Saturday when voting booths must be open for a minimum of 12 hours; which day shall be the same throughout the United States. Absentee votes, mail votes and early voting must be organized by the states and offered as an option to all voting citizens
Okay then, that should take care of mandatory voting, eliminate the outdated electoral college, severely restrict any attempt to suppress the vote, and make voting easier all round.
To YoYoTheAssyrian:
Oh yes, I really like the idea of getting all that religious rubbish out of the classroom! Let's make it an addition to the First Amendment in those pesky establishment and free exercise clauses:
There shall be complete separation of church and state which encompasses all offices and agencies of government including Education in both state and privately funded institutions, and Congress shall make no law respecting an establishment of religion. The free exercise of religion shall be protected insofar as such protection does not infringe on any other rights or responsibilities.
Does that take care of it, Yoyo? Incidentally, great point about the militia in [5]! I should think Stevens would have it covered in his book (which I haven't read either).
To nypoet22:
I like the idea and I'm not sure how I'd word it either. Perhaps this one would be better off in a separate Bill?
To Paula:
I also like all of Justice Stevens' recommendations!
So now for one of mine:
I have long thought that freedom of speech, covered in the First Amendment, has been under aggressive attack - lies, distortions, disinformation, being legally equated with money - which has so profoundly undermined the integrity and original intention of the First that it is practically meaningless.
To protect it, I suggest the following:
While Congress shall make no law prohibiting or abridging the freedom of speech, Congress shall protect the integrity of the right to freedom of speech by requiring accuracy in media reporting. Responsibility for oversight shall be invested in an independent, non partisan agency with the powers to fine and demand public corrections for proven inaccuracies. Opinion pieces must be clearly labelled as promoting opinion and name those participating.
That isn't well worded but it contains the general idea I want to convey.
I should also like to amend Article III Section I:
The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour until the mandatory retirement age of 60 and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
To Chris:
Great article, mate! I had a lot of fun with this one! :-)
@Pasta
Wouldn't that mean that current militia organizations are beholden to the president? Because they don't seem to bothered by it currently.
@Mop
Kind of, The problem always comes in when you apply the most extreme possible interpretation to any bit of legalese. It's hard enough to defend against that kind of thing even in simple stuff, like games. Not sure how your wording could be abused, but it probably could be.
@Yoyo
Kind of, The problem always comes in when you apply the most extreme possible interpretation to any bit of legalese. It's hard enough to defend against that kind of thing even in simple stuff, like games. Not sure how your wording could be abused, but it probably could be.
Yes, I agree. It would need to be worded by a whole panel of Constitutional lawyers and even then you couldn't guarantee that someone like Justice Scalia couldn't twist it out of all recognition of its original intention!
It also occurred to me while writing it that it may present some problems to any religious colleges with specific doctrinal courses for training priests and the like. But ho hum, their problem!
I would make the House and Senate more different from each other. Currently, the main difference is that the Senate has a sixty-vote threshold for passage of any contested bill or resolution. They're both two-party institutions, with chamber leadership representing the majority party in the chamber.
I would have proportional representation in the House. My favorite option for how to do it is simply to allow voters to choose when they register which seat they're going to vote for. Then a small party could organize its supporters to register for the same seat; if it had enough supporters to merit a seat, that would be enough to win one.
I would have the Senate be a supermajority institution from soup to nuts, but cut the states out of it entirely. Senators would be elected nationwide. The constituencies for Senate seats would be determined by birth date, with the first half of each month electing one senator and the second half of the month electing another. Senators would still serve for six-year terms, but elections would be staggered quarterly, so that there would always be one coming up. To be a full senator, a candidate would have to get 55% of the vote. If no candidate gets 55% in the initial election, there'a runoff among all candidates receiving at least 20%. If no candidate gets 55% in the runoff, the candidate with the most votes becomes a restricted senator, with an equal vote on all votes other than passage of bills, but only a vote of "nay" or "present" for bills. To pass, a bill would have to receive the votes 55% of senators present and voting, and those senators would have to be a majority of senators duly elected and sworn. No vote other than a veto override would be allowed to require a greater supermajority than 55%.
Voters would normally go into a Senate election knowing which candidate is going to win, but not knowing whether they would have a full senator or a restricted one. They would essentially be casting yes or no votes on full senator, with no votes additionally carrying the information of which protest candidate they vote for. There would be no senators from heavily Republican states of heavily Democratic states, taking fringe positions to head off primary challenges. Instead, all candidates seeking to be full senators would have to appeal to a supermajority of voters.
The presidency would still be a two-party office. I would get rid of the electoral college, and have the president be elected by a straight plurality of the popular vote.
Supreme court justices would serve staggered 18-year terms. Justices in office at the time of ratification would be unaffected, to avoid any tinge of ex-post-facto law. The number of seats on the Court would be fixed at nine, and a rotating schedule of expiration of terms would be established. If a justice retires before their term expires, a replacement would be appointed for the remainder of the term.
I really, really don't like the Ministry of Truth amendment proposed by Mopshell.
I like the idea and I'm not sure how I'd word it either. Perhaps this one would be better off in a separate Bill?
A bill would probably be insufficient to countermand the implicit conflict of interest in allowing transit between government and the lobbying profession. All it takes to nullify a bill is another bill.
I don't think it makes sense to ban the lobbying profession entirely, because without a legal avenue that attempt at influence would just be driven to more illegal avenues. However, I do think it makes sense to have a hard constitutional ban on national public officials (or their spouses, such as justice thomas) accepting remuneration for influencing governmental bodies within six years of their service in the federal government.
the larger issue is the influence of money in general, and the notion that money is an avenue of free speech (rather than a means to create inequality between one person's speech and another). perhaps the two issues would be part of the same amendment?
Addendum to justice stevens' proposal:
Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns. No federal official or candidate for public office, nor their spouse unless unmarried at the time, may accept remuneration in exchange for influencing public policy decisions within one term of the office in which they serve or are seeking to serve. Such remuneration will be held equivalent to bribing public officials, and prosecuted under federal law.
JL
and here's another:
Unless prevented by treaty or by the laws of foreign nations, any law made to protect the rights and privileges of US citizens domestically shall be enforced globally for all people under US influence.
JL
YoYo,
Regarding the militia loophole you mentioned, if the militia is required to have at least some level of organization, then being a member would require registration of some sort at the very least. If said registration were to require a background check, then you suddenly have universal background checks and a registration list of all legal gun owners.
nypoet22,
Your suggestion of requiring the protection of the US constitutional rights of all people globally under US influence could be very dangerous as written. Specifically, the definition of "all people under US influence" is so open ended that it could be applicable to almost anyone, and could require massive conflicts to enforce. Would that only include people under political influence? Or would it include economic influence(which could be huge since we provide financial aid to numerous foreign countries)? Or would it only apply to US citizens abroad? Without a concrete definition, this could be interpreted in numerous ways and be used as a blank check for armed conflicts with other nations.
@dsws
I really, really don't like the Ministry of Truth amendment proposed by Mopshell.
I smiled when I first read this, then rolled my eyes; ministry of truth is such a loaded term and it's connotations are a long long way from what I proposed.
First of all, I deliberately rejected the word "truth" because that has a much broader, very subjective meaning. I chose "accuracy", as in "factual", because it is that which is central to my concern.
Secondly, of those who object to the proposal, most seem to think it would limit speech yet nowhere is that stated or even implied. Nor is it intended.
Outside those strictures covered by libel and fraud laws, it isn't intended to stop anyone saying whatever they like. The proposal is there simply to hold those who make public statements accountable for what they choose to say (and that includes accuracy in advertising which I thought America was supposed to have but clearly doesn't).
Let me ask you this: do you think the framers of the Constitution intended the First Amendment to protect the telling of lies, of distortions, of disinformation? Currently, however, that is what it does.
My proposal is for an independent, non political agency that responds to complaints from the public and has the authority to act when it finds a complaint justified. Other democratic countries, which honor the right to freedom of speech, have such agencies to protect it and they work.
In his Huff Post article Shouting Fire in America, Stephen Herrington says:
If the GOP is so willing to ignore fact and public sentiment that they will deceive, and distort the facts about any and all public and political issues in order to gain or retain power, then what is the use of the First Amendment, an amendment the purpose of which was antithetical to lies?
When you use the protections of the First Amendment to defeat the intent of the First Amendment then you have obviated the usefulness of it to the democracy it was designed to foster. With billionaires using the power of mass media to deceive a seemingly hapless electorate of the correctness of the billionaire's agenda we might as well repeal it for all the good it now does the public. The most money buys the biggest megaphone of all.
The First was meant to help democracy work. Without it, free speech, democracy is virtually impossible.
...We, then, must gird ourselves to defend the First Amendment from abusers.
http://www.huffingtonpost.com/stephen-herrington/shouting-fire-in-america_b_5210463.html?utm_hp_ref=politics
His article was published after I first made my proposal and I was very pleased to see it because I was beginning to think that Americans had scant interest in defending the First Amendment from abuse. It seems that "anything goes" with most Americans in which case Herrington is right and you should just repeal it if you're against defending it.
toffiereriksen [1] -
Just had to mention, I started with your exact wording. Well done!
:-)
-CW