Not so long ago I recommended, as
a useful pastime, the creative exercise of devising amendments to our
constitution. I “proposed” two amendments as the kind of thing I
was suggesting. I even tried to write them as they would appear in
their final form. I must admit the selection of the appropriate
language is harder than coming up with the idea for one in the first
place. Well, a far more influential voice than mine did exactly what
I suggested although I am sure he came up with the idea all on his
own. In a recently published book, former Supreme Court justice,
John Paul Stevens, proposes six amendments. I have read the language
the justice uses and it's a pleasure to see the work of a true
professional. My intent here is to share these proposed changes to
our basic law, as reported in a news account, but I want to first
offer a short argument as to the timing of Justice Steven's efforts.
Each of these proposed amendments deserves a response by each of us
and I will offer mine in future postings.
As I have written often in this
blog, changing the constitution is difficult. It's so difficult that
any single attempt should be looked at as being highly unlikely to
succeed – if you are a betting person, the rational choice is to
bet against it being eventually ratified. But historically, if we
look at a time in history when such efforts were successful –
outside of the ratification of the first ten amendments, the Bill
of Rights, and successful a multitude of times, two time periods
come to the fore. First is the time period immediately after the
Civil War. Then the Thirteenth, Fourteenth, and
Fifteenth Amendments were ratified. When a nation goes
through an experience that caused the death of about 750,000 – both
in combat and from other causes – then it seems that the nation
would be in the mood to see what needs changing so that such a
catastrophe does not happen again. Of course, many would argue that
the changes entailed with these amendments were forced down the
collective throat of the South. Be that as it may, they were
ratified within a relatively short amount of time – five years.
The second period that comes to mind is during what is considered the
Progressive Era. Four amendments were added during that time:
Sixteenth, Seventeenth, Eighteenth, and
Nineteenth Amendments. All four were ratified in the years
from 1913 to 1919. Not all of them can be attributed to the national
consensus over progressive ideals. The Eighteenth, empowering
the federal government to establish prohibition, was not, in my
judgment, a product of progressivism, but the other amendments seem
to be directly a result of the progressive political forces striving
to achieve a more democratic polity. Consider the substantive
issues: Sixteenth, establishment of the federal income tax,
Seventeenth, direct elections of senators, and Nineteenth,
extending the franchise to women. And nothing motivated that drive
more than concerns over the concentration of wealth that was
occurring during the years leading up to the end of the 19th
Century. That sort of thing should sound familiar to us living in
the beginning of the 21st Century. We are again facing a
distribution of income and wealth skewed, to an unsavory degree, to
the “one percenters.”
So, what are these amendments
being offered by Justice Stevens? As reported by USA Today,
they are: 1. “Changing the Second Amendment to make clear that only
a state's militia has a constitutional right to bear arms;” 2.
“Changing the Eighth Amendment's prohibition against 'cruel and
unusual punishments' by including the death penalty;” 3. “Removing
from First Amendment protection any 'reasonable limits' on campaign
spending enacted by Congress or the states;” 4. “Requiring that
congressional and state legislative districts be 'compact and
composed of contiguous territory' to promote fair competition;” 5.
“Eliminating states' sovereign immunity from liability for
violating the Constitution or an act of Congress, which he calls a
'manifest injustice';” and 6. “Allowing Congress to require
states to perform federal duties in emergencies.”1
I know, just as with the case of prohibition, not all of these
amendments address the concentration of wealth issue, but I just feel
the issue can serve to put us in the mood for change.
I see that Justice Steven
addresses one of my concerns that I expressed with my proposed
amendments: the concern for reform in our election processes and
structures. This does relate to wealth in that current law and
political conditions serve the monied interests. Congressional
districts as drawn do favor one party over the other and led to the
fact that even though the Democrats received over a million more
votes nationally in 2012 House elections, they still were not able to
gain control. Given how the rich spent their campaign contributions,
I judge the outcome to have been in their favor. Justice Stevens
addresses election reform from the perspective of Congressional
districts – in number 4. While the justice attacked one aspect of
the problem, my approach takes on a more comprehensive view by
setting up a commission. As I stated in the previous posting:
Proposed amendment two:
1 - The power to administer
national elections is vested in a national election commission. The
commission is comprised of seven members. The commission is to:
administer federal government's
duties related to the election determining the members of the
Congress, the President, and the Vice President;
determine the boundaries of the
Congressional districts;
administer a non-partisan
informational and promotional program to encourage active
participation on the part of the citizenry.
2 - The electoral commission is
comprised of members who serve seven year terms and will serve as
long as they maintain lawful status. The terms of members will be
established as staggered with one new member selected every year.
Each member is selected by one of various bodies consisting of the
House of Representatives, the Senate, the President, the Supreme
Court, the chief officer of the Department of State, the chief
officer of the Department of Justice, and the active members of the
sitting electoral commission.
3 - Members of the election
commission are limited to one full term of seven years. Those
initial members whose terms are fewer than seven years can be
reappointed for one full term.
4 - Congress shall pass necessary
legislation to administer this provision.2
Whether or not this effort is
worth considering, the attempt, I believe, shows what all an
amendment must address. As I mentioned above, the language is
tricky. I can hear you: don't give up my day job. Luckily, I'm
retired.
Given the stature of Justice
Stevens, we should give his proposals our attention and I look
forward to seeing if they are given the attention they deserve.
Perhaps his timing is timely.
1Wolf,
R. (2014). Former justice Stevens wants to change the
Constitution. The Tallahassee Democrat,
April 22, Section B, pp. 1-2, citations for all the amendments on p.
2B.
2This
proposed amendment was included in my posting for February 3, 2014,
entitled A Better Way?
