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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Friday, September 19, 2014

Six (or so) Amendments

There are two more speeches by Justice "I'm nearly 100 years old" Stevens up on the USSC website.  One provides an answer to a criticism of his Six Amendments book, another furthers his argument broader campaign finance rules are appropriate.*  Good to see him though these days Justice Ginsburg (and somewhat Sotomayor) seem to be dominating the airwaves. 

I'm wary about many of his proposed amendments though sympathetic about doing something about gerrymandering and current understandings as to immunity and state control over federal matters such as patents in state university presses.  His book even as to them was a bit thin and me personally would think if we are going to amend the Constitution, some other directions might be warranted. His ideas also seem all already possible under the current text, at least given his views of it.

The response to the negative review did lead me to think about what my six amendments would be, partially since they would have about as much of a chance (if not more in one or two cases) passing as his. One might be reflected in Rep. Ellison's right to vote amendment though current doctrine already holds we have a fundamental right to vote.  How the text would apply to felons (especially those serving time on Election Day) would be a major issue. OTOH, the express congressional authority would be important (though Shelby suggests possibly unclear), since states now are held to have fairly broad power over their local elections.

An amendment that broadly provides a right to vote would do what the Equal Protection Clause does with equality or the Cruel and Unusual Clause does with punishments (I'm wary of an ERA or singling out one punishment via an anti-death penalty amendment) -- provide a basic right to all. I might include in my six some sort of anti-gerrymandering amendment ala Stevens.  More alluringly, I would support one that deals with D.C.  No, I don't want it to be a state -- it is too small and as to allotting senators, don't want expand the problematic Senate practice further.  The idea is to require and provide clear authority equal voting rights, including in the House of Representatives, to the population there. This would in part require overruling the limiting rule of the 23A.

The two senator rule also warrants repeal. The disproportional representation by population troubled the likes of Madison back when the differential was much smaller between the most and least populous states.   An argument can be made that Art. V requires each state to agree. But, as was done at least once in the UK (as seen in a case involving fox hunting), the original rule can be amended away and then a new rule put in its place. If the Constitution itself can be ratified with only a supermajority of states when at the time amending the Articles of Confederation required unanimity, it seems somewhat strange that this would not be allowed.

The Constitution, especially after the Bill of Rights, largely involves amendments that alter structural provisions and voting rights. So, it is not overly surprising many of my amendments would deal with such issues. The Constitution in effect blocks certain things such as treating D.C. as a state for purposes of representation (though some argue it can) while the issue of rights is more a matter of clearly establishing things that arguably already exist. Thus, I'm sympathetic to, but don't really think there is a need for an amendment to protect a right to privacy or the like. Somewhat more worthwhile would be something like Stevens' immunity and commandeering amendments, especially given how current doctrine blocks certain things that seem glaringly appropriate. 

OTOH, an amendment to override the Electoral College would be more expressly necessary. The 2000 elections suggest the EC is not totally defanged; the 2004 could have been problematic too if Ohio was closer.  Still, more important -- and having some bipartisan support (Obama's alleged origins complicates things a tad) -- is getting rid of that obsolete Natural Born Citizenship Clause.  There is no good reason that someone who was born in Canada without American citizen (e.g., U.S. citizen parents living abroad at the time) and came here as a baby should be denied a chance to be President.  A general "Presidential amendment" to deal with both would be ideal, but especially the latter.  A tertiary concern might be presidential succession and doing away from making members of Congress the next in line.  That can be done by statute now.

The final amendment that immediately came to mind was something to deal with the modern day administrative state.  No, the administrative state is not unconstitutional or overall unjust. But, its scope and complexity might warrant clear authority that goes beyond the traditional simple tripartite (executive/legislative/judicial) system, especially given many agencies have a mixed flavor. Also, perhaps, legislative vetoes might be appropriate in certain cases, even contra to current case law. Don't think we needed a separate amendment to authorize a federal income tax, but it did provide a clear authority, minus some outlier types. Same here.

So, roughly speaking, my six amendments (with a seventh):
  1.   Repeal Natural Born Citizen Clause (etc.)
  2.   D.C. Amendment
  3.   Override Two Senator Rule  (might require two steps)
  4.   Voting Rights Amendment
  5.   Anti-Gerrymandering (and/or other electoral issues)
  6.   Agencies 
  7.   Privacy, Immunity etc.
Various other things can be imagined, including some sort of positive rights that also might clarify federal powers (e.g., health care).  If we are going to tinker with the Senate, we can also imagine altering its duties (it is unclear that it should have the veto over all matters it has now -- perhaps it should have limited functions) or things like the filibuster.  Being real creative, if people want the Senate to be there to "warm the milk" on the saucer, to allude to a supposed early sentiment, we can tinker how its done.  The current policy of leaving that to a set-up providing special power to thinly populated conservative states (as compared, e.g., to a more evenly divided Senate but retaining a supermajority requirement) is not necessary.

Will any of this come to pass? Well, time will tell. I think #1 has a reasonable chance of passing in the future. Dealing with D.C. somehow, including forming a district for a Maryland representative seems somewhat possible, though it is more problematic given the partisan concerns (one failed compromise did give Utah an addition member).  One of the others, or a totally different one might arise in the future, perhaps because of an emergency or unexpected event.  We are due, the 27A being a joker, the last one forty years ago. 

Don't expect a book any time soon though.


* I have somewhat different views on campaign finance than him, but am open to arguments that more regulations are warranted in various cases. The thing that struck me here is seen in this comment:
An Alabama citizen has no right to participate in the election of political leaders who will govern in Hawaii, Minnesota or Utah.
That's sloppy phrasing. Such a person does not have a right to vote in out of state elections, yes, but they to me have a right to "participate" in various respects. They have the right, e.g., to hand out pamphlets or take part in a campaign, even if the person isn't a resident, right?

Comparing donating to a campaign in another state (maybe right next door) and a foreigner doing so also is a bit off -- fellow states are interconnected and foreigners more appropriately regulated more than Stevens suggests. 

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