Can amendments save the Constitution?

Discussions of the unconstitutional actions of government officials often lead to the question of whether those usurpations could be remedied by constitutional amendment. Most find that those provisions that are very unambiguous tend to be followed, while almost all the departures have taken advantage of ambiguities, most of which the Framers could not have anticipated. When we examine the amendments that have been made, the most carefully worded ones are usually the few things that brought lasting reform, other than a few court precedents, which usually defer to claims of authority by officials that stretch the limits of ambiguities. The Bill of Rights, except for the twenty dollar rule of the Seventh Amendment, were argues by Madison and others not to have added anything to the original Constitution, but only clarified it. Yet a very large proportion of court cases hang more on those clarifications than on what they were designed to clarify. History indicates that jurisprudence likely would have taken a very different course had they not been added.

Similarly, except for the new enforcement powers granted Congress, the 13th, 14th, and 15th amendments were argued by their proponents to have been clarifications of the original Constitution, not new content. They corrected practices that had become entrenched, but which were not strictly and logically consistent with the original Constitution. The 14th in particular was intended to overturn two key court decisions, Barron v. Baltimore and Dred Scott v. Sandford.

Several reformers, such as Randy Barnett, have proposed one or a few general amendments they hoped would leverage sweeping reforms. But my analysis indicates that won't work. Any amendments will need to overturn specific departures with highly specific, highly unambiguous language that no lawyer can find a way to weasel out of for the next 200 years. Drafting amendments that work is an advanced art. There are probably fewer than 200 people in the world who have anywhere near the skills needed to do that. One has to not only be able to write very clearly, but to anticipate every possible misinterpretation, no matter how outlandish.

That means we will need a large number of very specific, carefully worded amendments, each of which corrects one line of interpretive departure. We can expect to have to increase the overall length of the Constitution by perhaps an order of magnitude. A sense of how this might be done can be found at http://constitution.org/reform/us/con_amend.htm

My proposals are one effort, but so far not one that is gaining much traction. It is often thought that to produce proposed amendments to which enough people would pay attention would take some kind of national conference or convention of prominent people, such as the 1787 Constitutional Convention. Some have called for the constitutional convention described in Article V of the Constitution, but many are highly dubious about that approach, because most ways to convene such a convention do not make it likely that the attendees would have the necessary skills or diligence.

I have proposed a different approach: one or more working conferences of constitutional experts to develop the language of specific amendments to do specific things. When they completed their work, it would be proposed to state legislatures as specific amendments, which the state legislatures could then adopt as identical proposals to Congress for them to adopt and send back to the states for ratification. The idea would be for there to be no changes from the original proposals, only an adoption and ratification process, up or down.

However, when I have proposed this to some of those constitutional experts, there does not seem to be much interest, and less in the way of suggestions for draft language.

This article is intended to arouse action on this. Suggestions are welcome.

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StevenSki said...

If we are already not following the Constitution, what good will more amendments do?

The Constitution orders that the president shall take care that the laws be faithfully executed, but all members of congress are not calling "foul" on his statements to reform immigration law.

Congress citing the Constitution is the first step. If they can't do that, they will never help with an amendment.

John Frederic Kosanke said...

Well-written clarifying amendments are the key to restoring a strict interpretation of the Constitution.

Remedial amendments - especially repeal of the income tax, formalization of state and jury nullification, and of the sanctity of private contracts - are necessary to reverse the centralization of political power.

Substantive amendments should put a high priority on nullifying victimless crime in favor of dispute resolution mechanisms in which victims are compensated by aggressors.

Passage of the 27th amendment is telling: A strategic letter-writing campaign by one person to State legislatures resulted in its passage by all but five states.

The original Liberty Amendment, which has passed the legislatures of nine states, has many important elements, and could serve as a test case.

John Frederic Kosanke said...

As an anarcho-capitalist, I see a well-designed constitution as a useful means of preventing (or reversing) the formation of a monopolistic state - rather than merely limiting the state. Ideologically, we have a lot of common ground with minarchists.

In the context of the US Constitution, reformers would best focus on the following areas:

* Repeal of the income tax (While any tax is immoral since it is involuntary, few existing states are ready to condemn taxation itself.);

* Establishing the sovereignty of the Individual and private contracts (Third-party regulation is a violation of both);

* Allowing private defense, private resolution of disputes, private currency, and a free flow of communication (Politicians and bureaucrats have no birthright giving them immunity from natural market corrections or from prosecution);

* Fortifying checks and balances against official monopolies - beginning with state and jury nullification. (If done correctly, an amendment would put the state on a level playing field with a competitive market - which by definition would end its monopoly.)

The history of the 27th amendment is illustrative of what lies ahead for us as reformers. Since it began 200 years ago with the Bill of Rights, it had a built-in nostalgia. A one man letter-writing campaign to State legislatures resulted in its ratification by all but five States. It has already been violated several times, and the federal courts and executive branch have been unwilling to defend it.

The original Liberty Amendment similarly has a nostalgia. It too has been ratified by almost 1/4 of the States necessary for ratification. Restoring the Liberty Amendment campaign could provide a test case, and establish the basis for an infrastructure for future amendments.

John Frederic Kosanke said...

Another approach is an amendment that specifically limits the functions of the federal government to those expressly enumerated.

Here is the text of the original Liberty Amendment - which already has the blessing of nine states, and cannot expire until passage:

Section 1. The Government of the United States shall not engage in any business, professional, commercial, financial or industrial enterprise except as specified in the Constitution.

Section 2. The constitution or laws of any State, or the laws of the United States shall not be subject to the terms of any foreign or domestic agreement which would abrogate this amendment.

Section 3. The activities of the United States Government which violate the intent and purpose of this amendment shall, within a period of three years from the date of the ratification of this amendment, be liquidated and the properties and facilities affected shall be sold.

Section 4. Three years after the ratification of this amendment the sixteenth article of amendments to the Constitution of the United States shall stand repealed and thereafter Congress shall not levy taxes on personal incomes, estates, and/or gifts.

Note: "Intent and purpose" in Section 3 covers a lot of territory, and begins the demise of the whole "living constitution" versus "originalism" debate.

The amendment is certainly not without shortcomings, but finishing its ratification would be a good place to start.


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