Education, Free Society

Amending the Constitution

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

Amending the Constitution of the United is an arduous process. It was intended to be for good reason. Any questions; try reading the California Constitution. There are several “amendments” in the pipeline at any given time. They vary from definition of life to a balanced federal budget. The primary impact of most of these would be the full employment of lawyers. The really hot one right now seems to be “the People’s Rights Amendment,” a rhetorical attack on the Citizens United decision with the effect of eliminating the Bill of Rights altogether. You may read my analysis posted 24 April.

I divide the amendments into limitations on government, housekeeping, individual rights, powers of government.

Articles I-IX are limitations on the federal government and individual rights.

Article X is limitations on federal power and powers reserved to states respectively and to the people.

Article XI limits the jurisdiction of federal courts.

Article XII is a housekeeping amendment on the method of choosing elector.

Articles XIII, XIV and XV are about individual rights. Article XIV also places the limitations of Articles I-IX on the states and their subdivisions.

Article XVI says the federal government may tax income from whatever source.

Article XVII took the appointment of the Senate away from the legislatures and made it by general election.

Article XVIII was one of two populist amendments, this one created national prohibition—a “noble experiment” that unified organized crime across the country and provided plots for numerous movies.

Article XIX is women’s suffrage. Out west it was not necessary. It was only in some of the eastern states that this was necessary.

Article XX reset the days for commencement of presidential terms and congressional terms. It also provided some flexibility in selection of the vice president and succession issues.

Article XXI repealed Article XVIII and gave ATF authority to enforce state laws contrary to the Commerce Clause.

Article XXII created term limits for president.

Article XXIII allows the District of Columbia the same number of Presidential electors as the least populous state. This basically gives the Democrats three guaranteed electors.

Article XXIV abolished use of a poll tax or other tax as a condition precedent to voting.

Article XXV provides for succession due to the death, disability or resignation of a President. Section 4, which has never been used, is problematic as I could see it as a coup d’etat provision.

Article XXVI provides for suffrage at 18.

Article XXVII Congress cannot raise its pay during the session. No change in compensation will take effect until after the next congressional election. This was one of the original twelve proposed, but it took a while—and a bunch of scandals—to take effect.

While I do not favor amendments for their own sake, I do see some areas that could increase liberty.

Repeal Article XVI. The current mess we are in has come from a monopolization of the taxing power by permitting unlimited taxation of income. When the government had to rely on tariffs and excises it did not expand and it did not engage in worldwide military adventurism. The income tax made military adventures by the Executive possible.

Repeal Article XVII. The direct and democratic election of Senators has increased demagoguery and reduced the accountability of the Senate. The purpose of the Senate was to represent the states—as such senators were appointed by, and accountable to, the legislature. This is extremely important in the Senate’s role in treaties but also in national legislation that may impact on small states. Also, senators with national constituencies may ignore their own states entirely.

Repeal Articles XVIII and XXI. When prohibition was repealed, the government kept in place a regulatory system to protect “dry” states from the commerce clause. Repeal would eliminate the A from ATF.

Repeal Article XXII. This proposal would eliminate term limits on the presidency. A good compromise would include changing the impeachment standard from Treason, bribery or other high crimes or misdemeanors to the during good behavior standard for judges. Term limits reduce accountability and were adopted as a knee-jerk reaction to FDR.

Add Article. Prohibit the bundling of regulatory or criminal laws onto budget legislation. It is a common practice to tie unpopular laws to “must pass” budgets.

Add Article. All federal criminal and regulatory statutes shall have a sunset clause. Most criminal laws at the federal level were passed in the heat of reaction. Reconsideration on a regular basis might result in appropriate corrections or repeals.

Add Article. Prohibit the federal courts from the awarding of punitive damages. Punitive damages are a quasi criminal remedy in a civil case. The motivation arises out of two basic premises. The most common is the feeling that a jury will find conduct so outrageous that it needs to be stopped and can best be stopped by excessive awards. The other is that a prosecutor can meet the preponderance of evidence standard for a tort case (every criminal trespass is also a civil tort) but not the reasonable doubt standard required for a criminal conviction. In addition to tort lawyers using the punitive damage tactic, political entities such as Southern Poverty Law Center and the various Public Interest Research Groups will use it as the means of “shutting down” those entities they have decided need shutting down.

Having escaped the Peoples Democratic Republic of California in 1963 I have avoided the idea that a Constitution needs to address every legal contingency. So I will leave it there.

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