Sunday, April 3, 2016

My Five Amendments To The Constitution

The National Archives, which everyone needs to visit at least once in their lifetime, is currently hosting an exhibit called "Amending America", about the history of attempts to amend the United States Constitution. A giant banner is filling to main hall, listing the names of all of the 11,000 proposed amendments that have been put forward over the years. I hope to get a chance to see the exhibition before it closes, but sadly I have no immediate plans that would place me in Washington D.C.

Amending the Constitution is often discussed but very rarely done. Article V lays out what needs to happen for a constitutional amendment to be approved. One way is for two-thirds of both houses of Congress to approve an amendment, which then would need to be ratified by three-fourths of the state legislatures. The other is for two-thirds of the state legislatures to vote for the calling of a convention to consider amendments, any of which being approved would also have to pass muster with three-fourths of the state legislatures.

If the Founding Fathers could see the Constitution as it operates in 2016, I think they would be both delighted and shocked. I think that they would be delighted, and extremely surprised, to learn that the Constitution is still in operation after more than two centuries. When it was adopted in the late 1780s, many saw it as a stopgap measure and some did not expect it to function for very long. At the same time, however, I think that they be rather shocked that the American people have only amended the Constitution twenty-seven times (with ten of those amendments making up the Bill of Rights and being passed very early, and two of the remaining amendments cancelling one another out). Surely the wisdom that comes with experience should have caused us to update the document far more often. Thomas Jefferson, in particular, was of the opinion that the country should hold a new constitutional convention every generation or so.

This has gotten me to thinking about what amendments I might support if a new constitutional convention were to be held. I am among those who unabashedly consider the Constitution of the United States close to sacred, so the idea of amending it needs to be treated with extreme caution. On the other hand, for all the brilliance of the men who created the document, we have learned a great many lessons in the subsequent two centuries that demonstrate the need for a few changes to the way our government operates. So, with no illusions that my opinion on the subject matters in the slightest, I'll make my five top recommendations here.

1. Term Limits for Members of the House of Representatives
In last year's mid-term elections, 95% of members of Congress who ran for reelection returned to office even thought polls showed that only 14% of the American people approved of the job Congress was doing. This is absurd and outrageous. The many advantage of incumbency, the most obvious being the massive amounts of corporate campaign contributions a congressman can start reaping in when they walk into the Capitol, make it so difficult for qualified candidates to challenge sitting congressmen that they rarely bother trying. So they get reelected year after year, comfortably ensconced in the halls of power, lording it over the rest of us like the dukes, barons, and earls of medieval Europe.

Some members of Congress regularly call for term limits to be enacted, but unsurprisingly they never are. As with the imposition of term limits on the President, it can only be done by a constitutional amendment and that has to be forced onto the political establishment by the American people. To me, three two-year terms for members of the House of Representatives sounds about right.

The Senate is a different matter. It was specifically designed by the Founders to have a greater buffer against popular opinion than the House, allowing it to check what Elbridge Gerry called "an excess of democracy." Most of the Founders (with some notable exceptions, such as Thomas Jefferson and Thomas Paine) worried about the power of demagogues arising the take advantage of temporary passions or alarms among the people in order to obtain political power for themselves. Against such situations, the Senate was intended to stand as a bulwark, allowing them to resist such momentary gusts of misguided popular opinion. If one adopts their way of thinking, frequent rotation in the Senate is less desirable than it is in the House. Having thought about the question at length, I think that term limits should apply to the House but not to the Senate.

2. Prohibition of Gerrymandering
Gerrymandering is the purposefully drawing of congressional districts by state legislatures to cram as many of the opposition party's voters into as few districts as possible, thereby maximizing the number of districts in which supporters of the governing party have a majority. The end result is that the majority of state congressional delegations are skewed disproportionately towards one party or the other by a huge margin. The actual voting totals mean nothing; in a state where the congressional vote was roughly fifty-fifty, one party or the other might control three-quarters of the congressional seats. It's sickening, it's corrupt, it's unethical, it's undemocratic, but it's perfectly legal and constitutional.

This effectively disenfranchises millions of Americans. If you're unlucky enough to be a Republican in a Democratic district or a Democrat in a Republican district, you might as well have no congressional representative at all, because your vote doesn't matter. The person who ostensibly represents you can ignore your concerns with no fear of political disadvantage. Even worse, the extensive use of gerrymandering is a major contributing factor to the extreme partisan divide that now afflicts our country. Because gerrymandered districts effectively snuff out threats from the other party, a sitting congressman worries much more about a primary threat from within their own party than he does about the general election. In order to forestall this, a Republican has to veer to the far right and a Democrat has to veer to the far left as much as possible. The result is that we get a House of Representatives filled with ideological extremists rather than people disposed to moderation and compromise.

A few states, whose representatives perhaps had a momentary awakening of integrity at some point, have set up bipartisan or nonpartisan commissions charged with drawing up new congressional districts after each census. A Supreme Court case last year ruled that these commissions are constitutional. Unsurprisingly, congressional races in these states have been more competitive than in other states and do a better job reflecting the actual popular vote. Congress has the authority to prohibit gerrymandering with regular legislation, but that could always be easily repealed at a later date. I think that this problem is so serious that a constitutional amendment is absolutely necessary. So my second proposed amendment is a requirement that each state set up bipartisan or nonpartisan commissions to handle congressional redistricting.

3. Instant Run-Off Voting
In all House and Senate races, and for the allocation of presidential electoral votes for each state, we currently use a "winner-take-all" voting system (which is known in much of the rest of the world as "first-past-the-post"). Simply put, whichever candidate gets the largest share of the vote wins. This sounds fair enough, but using the winner-take-all voting system creates an enormous number of problems and, in the grand scheme of things, significantly undermines the democratic process.

Since the earliest days of the republic, the two party system has had a stranglehold on the American political process. Efforts to launch third parties, such as Teddy Roosevelt's Progressive Party in 1912 or Ross Perot's run for the presidency in 1992, have failed despite having the support of millions of Americans. Today, the Green Party and the Libertarian Party both have strong cores of support, but have no representation in Congress or the state legislatures. This dampens political discourse in the United States and gives disproportionate influence to the political machines of the two major parties, thanks to the use of winner-take-all elections for all federal and state offices and the vast majority of local elections as well.

Another problem with winner-take-all is the so-called "spoiler effect". A good example of this was seen during the 2000 Presidential election in Florida, when a vote for the Green candidate Ralph Nader effectively became a vote for the Republican George W. Bush over Democrat Al Fore, since the number of votes Nader garnered was greater than the margin between Gore and Bush. This is undemocratic, as supporters of Nader almost certainly would prefer Gore over Bush. Similarly, it is common in congressional and state legislative races for the Libertarian candidate to spoil the election of a Republican in favor of a Democrat, even though the voters supporting the Libertarian would probably prefer the Republican over the Democrat.

An easy alternate to winner-take-all elections would be the instant runoff voting system. Under this, voters rank their choices in order of preference, ignoring those they don't at all. Imagine a congressional election with a Democrat, a Republican, a Green, and a Libertarian. A voter who cared mostly about small government might choose the Libertarian as their first option, the Republican as their second option, and ignore the other two. A voter who cared mostly about environmental protection might choose the Green as their first option, the Democrat as their second option, and ignore the other two. The decision is made by a simple formula. If any candidate gets more than 50% first choice votes, they win. If they don't, the candidate with the fewest votes is eliminated and the second choice of those who favored the eliminated candidate becomes their first choice. The process is repeated until a candidate gets 50%. As far as the person in the voting booth is concerned, it's as simple as 1-2-3.

Instant runoff voting would eliminate the spoiler problem entirely and would give genuine representation to those voters who don't feel that their interests and views are expressed by either of the two major parties. It has been used with great success around the world, perhaps most visibly in elections to the Australian House of Representatives and state legislatures. It has also been used in some local elections in the United States. Of particular note is the fact that instant runoff voting sharply reduces negative campaigning, since candidates are reluctant to attack opponents whose supporters might choose them as their second choice.

A very beneficial constitutional amendment would simply state that all elections in the United States, on federal, state and local levels, shall use a system of instant runoff voting.

4. Balanced Budget
Of all the irresponsible actions we the people have witnessed on the part of the federal government over the past few decades, surely none can match the sheer insanity and senselessness of how it has managed our nation's finances. As I type this blog post, the national debt is a whopping $19 trillion. Although annual deficits have shrunk sharply in recent years, the debt is still increasing by more than $1.5 billion every day. And this is not even counting unfunded liabilities for Medicare and Social Security, which amount to much more, This represents an unsustainable fiscal emergency.

Truth be told, the national debt represents a far greater threat to the United States than any conceivable combination of foreign enemies. Every dollar that is added to debt increases the amount of the annual budget that has to be set aside simply to service the interest on the debt we've already accumulated. It currently stands at 6.5% of the entire federal budget, but this is expected to increase dramatically in the coming years.

Congress, whether controlled by Republicans or Democrats, has proven utterly unable or unwilling to restrain its spending habits. Therefore, the only viable solution to this pressing problem lies in a Balanced Budget Amendment, establishing constitutionally that the federal government cannot spend more than it brings in as revenue. An exception might be made for major wars or perhaps some unprecedented national emergency, but any language in the amendment designed to allow this would have to be very carefully written so to prevent it from becoming an easy loophole around the restriction.

In a 1798 letter, Thomas Jefferson (who maintained a balanced federal budget throughout his presidency) said that if he could insert only a single change into the United States Constitution, it would be a requirement that the national government maintain a balanced budget. It is time for us to recognize this wisdom and get this amendment done.

5. Limiting Presidential War Powers
The men who wrote the Constitution were very careful and explicit in granting Congress, and Congress alone, the power to declare war on another country. Allowing the President, a single individual, to hold such power was such a dangerous proposition that they apparently never considered it (with the apparent exception of Alexander Hamilton, who wanted the president to have powers akin to a monarch). The Framers, unlike the politicians of today, were people who studied and understood history. To them, hundreds of examples from the ancient and medieval world showed convincingly how foolhardy it would have been to give one man the power to take his country into war.

Yet we have forgotten their wisdom and allowed the constitutional power of Congress to declare war to fade away. The last time the United States actually declared war on other nations was during the Second World War, yet our armed forces have since gone to war in Korea, Vietnam, Afghanistan, and Iraq, as well as fought a number of smaller campaigns in places as diverse as Panama, Lebanon, Grenada, and the Balkans. From a geopolitical perspective, some of these campaigns have been successful, others have had decidedly murky results, and some have been downright disastrous. In all of these cases, some nod to congressional approval has usually been sought, but not always. In some cases, as with the Gulf of Tonkin Resolution of 1964, congressional approval was obtained through clearly fraudulent means. What has been clear is that, since 1945, the decision on whether to send American men into harm's way has been made, for all practical purposes, by the President, and not by Congress as the Framers intended.

Congress has only itself to blame for the disintegration of its power to declare war, since it has meekly acquiesced as one president after another has made war without genuine constitutional authority. Its one effort to claw back the war-declaring rights granted it by the Constitution, the War Powers Resolution of 1973, was a pathetic display of incompetence which granted the President the right to wage war however and wherever he wanted for three months, so long as he deigned to inform Congress within two days of what he was doing. Even under the provisions of the War Powers Resolution, it would be perfectly legal for the President to order the military to invade a foreign nation for no other reason than that he felt like. For that matter, if the congressional power to declare war has become obsolete, there is nothing preventing the President from launching an unprovoked nuclear strike on whomever he wanted whenever he wanted.

We are in desperate need of a clear constitutional clarification of presidential war powers, which would specify that the President of the United States cannot initiate military action without congressional authority except in response to a direct military attack upon the country.

Conclusion
These would be my top five amendments. I've written before about the need for an amendment to give congressional representation to the people who live in the District of Columbia. I might make others, including some clarifications on the Commerce Clause and the Necessary and Proper Clause, and some other things. I don't like the Electoral College, though the proposed National Popular Vote Interstate Compact provides a way for the people to circumvent the Electoral College without the need for a constitutional amendment. Something desperately needs to be done about the amount of money flowing into political campaigns from special interest lobbyists, which is nothing short of mass bribery. Any amendment, though, should only address the general structure of the government and how it operates, not specific political issues like the minimum wage or offshore oil drilling.

Here's the thing, though. If another constitutional convention were to actually be convened, I would be extremely wary and worried if the delegates were made up of the current crop of politicians in Congress and the state legislatures. Given the politically stratified and deadlocked condition of our nation at the present time, I would expect such a convention to become an absolute circus of crazed egomaniacs each trying to shoulder the others out of the way so that they can get in front of the television cameras. They'd see the convention not as a chance to serve the American people, but only to advance their own personal agendas and grind their own ideological axes.

Personally, I would rest easier if the delegates were randomly chosen from among the general population in the same manner as people are chosen for jury duty.

No comments:

Post a Comment