2013/06/09

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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