A New York Times article by Ezra Klein makes a strong argument for the United States needing more democratization in order to depolarize American politics.[1]
He starts this analysis with the assertion that the current polarization of U.S. politics is due to ideological changes: “the Democratic Party has moved left, and the Republican Party has moved right. But more fundamentally, those changes are compositional: Democrats have become more diverse, urban, young and secular, and the Republican Party has turned itself into a vehicle for whiter, older, more Christian and more rural voters.”
As a result, “Democrats can’t win running the kinds of campaigns and deploying the kinds of tactics that succeed for Republicans. . . . [Democrats] can move to the left — and they are — but they can’t abandon the center or, given the geography of American politics, the center-right, and still hold power. Democrats are modestly, but importantly, restrained by diversity and democracy. Republicans are not.”
In addition, the two parties’ voters differ in what sources of information they respect and listen to. Democrats trusted “22 of the 30 sources, including center-right outlets like The Wall Street Journal. Republicans trusted only seven of the 30 sources, with PBS, the BBC and The Wall Street Journal the only mainstream outlets with significant trust.” (The other trusted sources, for Republicans were, big surprise, Fox News, Sean Hannity, Rush Limbaugh and Breitbart.)
Even though Democrats have won the recent total popular vote in elections for the U.S. presidency, the U.S. Senate and the U.S.House of Representatives, the Republicans currently control the presidency, the Senate and a majority of governorships. This is due to the structure of the U.S. government which “counts states and districts rather than people, and the G.O.P.’s more rural coalition has a geographic advantage that offsets its popular disadvantage.”
This Republican advantage, however, may be temporary. Republicans “represent a shrinking constituency that holds vast political power. That has injected an almost manic urgency into their strategy. Behind the party’s tactical extremism lurks an apocalyptic sense of political stakes.”
Klein, therefore, concludes that “one of the few real hopes for depolarizing American politics is democratization,” including “proportional representation and campaign finance reform; . . .[making] voter registration automatic and. . . [giving] Washington, D.C., and Puerto Rico the political representation they deserve.” This would compel the Republican Party to become a “more moderate and diverse party.” However, “precisely because the Republican Party sees deepening democracy as a threat to its future, it will use the power it holds to block any moves in that direction.”
Without such changes, Klein argues, the U.S. will face “ a legitimacy crisis that could threaten the very foundation of our political system. By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.”
Conclusion
Klein is right to call for the need for more democratization of the U.S. electoral system.
But while mentioning the U.S. system’s favoring land and districts over people, he does not attack directly those features that do just that: the Electoral College for electing the U.S. president, the allocation of two U.S. senators to each state regardless of population and state legislatures creating the boundaries for seats in the U.S. House of Representatives. Yes, this would require amendments to the U.S. Constitution, which may be next to impossible, but they should be mentioned.
Alex Wegman, a member of the New York Times editorial board, however, points out one facet of theElectoral College: whether the individuals selected by the political parties are legally obligated to vote for that party’s successful candidate in the popular election when the 536 electors meet about six weeks after the popular election. Indeed, that very issue is now under consideration by the U.S. Supreme Court in two related cases from the federal appellate court in Colorado and a state court in Washington State. In the federal case, the court held that the founders clearly intended for electors to act independently and vote according to their consciences, not to the dictates of any political party. Once a state appoints an elector, the lower court said, its power over that elector ends. They cannot punish someone, or replace him or her, for voting a certain way. This issue, says Wegman, raises the more important question, why do we have to have the Electoral College?[2]
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[1] Klein, Why Democrats Still Have to Appeal to the Center, N. Y. Times (Jan. 26, 2020). Klein is an American journalist, blogger, and political commentator who co-founded Vox, where he is currently editor-at-large. He was previously a blogger and columnist for The Washington Post and an associate editor of The American Prospect. He has served as a contributor to Bloomberg News and MSNBC. (Ezra Klein, Wikipedia.)
End Designation of Cuba as a “State Sponsor of Terrorism”
By a vote of 481 to 63, the General Assembly adopted resolution 11-03: “Petition the President of the United States and the U.S. Department of State to remove Cuba from the list of state sponsors of terrorism as soon as possible.” [1] The stated rationale for the resolution included the following:
“[T]here is no evidence that Cuba has provided [logistical and financial or political support to groups that carry out terrorist attacks on civilians] in recent decades or is currently providing it.”
“To the contrary, Cuba has made international commitments to combat terrorism, has ratified all twelve international counterterrorism conventions, and has offered to sign a bilateral agreement with the United States on counterterrorism.”
“In an immediate response to the September 11, 2001, attacks on New York City and Washington, D.C., by Islamist militants belonging to Al Qaeda, Cuba expressed solidarity with the U.S, condemning the attacks and offering Cuban airports for the emergency diversion of airplanes from U.S. airports.”
“Cuba is a sponsor of the peace talks between the Revolutionary Armed Forces of Colombia—People’s Army (Fuerzas Armadas Revolucionarias de Colombia—Ejército del Pueblo or FARC) guerrillas and the Columbian government and is playing a constructive mediating in these talks in an effort to bring an end to one of the regions’ longest-standing conflicts and has been lauded by the Columbian government for its assistance.”
“Cuba collaborates with the U.S. in counter-drug traffic efforts, interdicting narcotic shipments in the Caribbean and has been publicly thanked by the United States government for this cooperation.”
“Under these circumstances, keeping Cuba on the list of state sponsors of terrorism weakens the credibility of the entire list. . . . Removing Cuba from the list would send a positive signal to all Latin American governments and would enhance the image of the U.S. in this hemisphere and around the world.”
End Restrictions on U.S. Citizens Traveling to Cuba
By a hand vote the General Assembly approved resolution 11-05: “Petition the President of the United States, the U.S. Department of State, and the U.S. Treasury Department’s Office of Foreign Assets Control to remove all of the restrictions on travel by U.S. citizens to Cuba, which it is legally possible for them to do, and to openly and vigorously advocate to Congress the repeal of all laws restricting the constitutional right of U.S. citizens to travel to Cuba.” The resolution also stated: “Petition the majority and minority leaders of the U.S. Senate and the U.S. House of Representatives to work to repeal all of the laws restricting travel to that nation.”
The rationale for this resolution included the following: “[M]illions of U. S. citizens are unable to visit Cuba because of restrictions still in place that limit travel to that nation. Speaking to the Organization of American States in 2013, U. S. Secretary of State, John Kerry, stated that ‘our people are actually our best ambassadors.’ . . . Increased travel by U. S. citizens will help support thousands of . . . [new] Cuban entrepreneurs and will enable them to purchase food and clothing and provide for their other basic needs.”
Consultation of U.S. and Cuban Presbyterian Churches
The General Assembly also considered Resolution 11-06 calling for developing a process for consultation between the U.S. and Cuban Presbyterian churches. By a hand vote, it was referred back to the appropriate church committee to find the necessary funding for such a process in light of the U.S. church’s “commitment to deepening our relationship [with Cuba] by careful analysis of the ongoing complex situation in Cuba.”
Conclusion
The biennial General Assembly is the national governing body of the Presbyterian church (U.S.A.) that brings together commissioners and advisory delegates from all 172 presbyteries in the U.S., as well as other delegates and observers from around the world.
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[1] This blog repeatedly has called for ending the designation of Cuba as a “State Sponsor of Terrorism.” Here is the latest such post.
The top officials of the U.S. Commission on International Religious Freedom –Its Chairperson, Robert P. George, and its Vice Chairperson, Katrina Lantos Swett –recently have been entering the public forum to discuss that freedom. A prior post reviewed their recent essay in the Wall Street Journal entitled “Religious Freedom Is About More Than Religion.”
The Criticism
Now in the Washington Post they have criticized the U.S. Government for its alleged failure to comply with the requirements of the International Religious Freedom Act of 1998 (“the Act“). They assert that the statute requires all administrations to conduct annual reviews and designations of “countries of particular concern,” defined as those governments engaging in or allowing ‘systematic, ongoing, egregious” violations.’” Unfortunately, they continue, “neither Republican nor Democratic administrations have consistently designated countries that clearly meet the standard for offenders.”
Now, the Commission leaders say, “a key deadline for action [is] arriving this month, [and] it is time to confront this unwise failure to act.”As a result, they ask Congress to press the executive branch “to apply the International Religious Freedom Act fully and the country designation process decisively.”
Analysis
George and Swett apparently refer to section 402 (b)(1) (A) of the Act, which states:
“Not later than September 1 of each year, the President shall review the status of religious freedom in each foreign country to determine whether the government of that country has engaged in or tolerated particularly severe violations of religious freedom in that country during the preceding 12 months or since the date of the last review of that country under this subparagraph, whichever period is longer. The President shall designate each country the government of which has engaged in or tolerated violations described in this subparagraph as a country of particular concern for religious freedom.”
Guidance on this requirement is provided in section 402(b)(1)(B) of the Act, which says that such presidential review “shall be based upon information contained in the latest [State Department} Country Reports on Human Rights Practices, the [State Department’s] Annual Report [on International Religious Freedom], and on any other evidence available and shall take into account any findings or recommendations by the [U.S.] Commission [on International Religious Freedom] with respect to the foreign country.”
Given these statutory provisions, I think George and Swett erroneously say that various administrations have failed to comply with section 402 (b)(1)(A) of the Act. That provision, as I read it, invests the president with the exclusive authority to make the determination of whether another country has “engaged in or tolerated particularly severe violations of religious freedom.” In so doing, the president determination shall be based on any available evidence, including said reports by the State Department and the Commission.
Moreover, Ms. Swett undercut her and Mr. George’s criticism when she acknowledged the Commission has limited authority when compared with the U.S. Department of State and implicitly the U.S. President.
In an interview about whether or not the U.S. should grant a visa to an Indian politician, she said, “The State Department has a more difficult job than we do because they are balancing American security interests, American commercial interests, American cultural interests, American exchange interests, a whole range of diplomatic interests, and one of the things that they are putting into that mix is the defense of our fundamental values, human rights and religious freedom and other such things. Because of its much larger portfolio the State Department cannot be as single-minded as we are.”
The International Covenant on Civil and Political Rights (ICCPR or Covenant) was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated. [1]
The Covenant establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The Covenant forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.[2]
The Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty.
President Jimmy Carter
A year and a half later (October 5, 1977), the U.S. started its process for ratification of this treaty when President Jimmy Carter signed the Covenant on behalf of the U.S. at the U.N. Headquarters in New York City.
On that occasion the President observed that the Covenant was “concerned about the rights of individual human beings and the duties of governments to the people they are created to serve.” Parties to the Covenant, the President added, pledge, “as a matter of law, to refrain from subjecting its own people to arbitrary imprisonment or execution or to cruel or degrading treatment.” In addition, this treaty “recognizes the right of every person to freedom of thought, freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of association, and the rights of peaceful assembly, and the right to emigrate from that country.” [3]
Over four months later (February 23, 1978) the next step in the U.S. process was taken. President Carter submitted the Covenant to the U.S. Senate and requested its advice and consent to ratification with reservations, understandings and declarations.[4] He said,
“While the [U.S.] is a leader in the realization and protection of human rights, it is one of the few large nations that has [sic] not become a party to . . . [this Covenant and the other two U.N. treaties he transmitted]. Our failure to become a party increasingly reflects upon our attainments, and prejudices [U.S.] participation in the development of the international law of human rights. [This Covenant is] . . . based upon the Universal Declaration of Human Rights, in whose conception, formulation and adoption the [U.S.] played a central role. . . . [This Covenant] treats in detail a wide range of civil and political rights. Freedom of speech and thought, participation in government, and others are included which Americans have always considered vital to a free, open and humane society.”
“The great majority of the substantive provisions of [this Covenant] are entirely consistent with the letter and spirit of the [U.S.] Constitution and laws. Wherever a provision is in conflict with [U.S.] law, a reservation, understanding or declaration has been recommended. The Department of Justice concurs in the judgment of the Department of State that, with the inclusion of these reservations, understandings and declarations, there are no constitutional or other legal obstacles to [U.S.] ratification.”
In 1979 the U.S. Senate Committee on Foreign Relations held hearings on the treaty, but took no action. Therefore, the Senate as a whole did not consider the treaty at that time. Later Senator Clairborne Pell said that although “there was significant support for ratification [in 1979] . . . domestic and international events at the end of 1979 [the Soviet invasion of Afghanistan and the Iranian hostage crisis] prevented the Foreign Relations Committee from moving to a vote on the covenant after hearings were completed.” Nor was there a vote on the treaty during the Reagan administration (1981-1989), according to Senator Pell, because that Administration had no interest in ratifying this treaty.
President George H. W. Bush
This presidential attitude changed in August 1991, with the Administration of George H. W. Bush, who requested the Senate to give its advice and consent to ratification of the Covenant subject to proposed reservations, understandings and declarations substantially the same as those proposed by the Carter Administration in 1978.
In response the Senate Foreign Relations Committee held hearings on the treaty in November 1991, and on March 4, 1992, the Committee voted unanimously to report the treaty favorably to the entire Senate for its consideration. Its report stated, “The . . . Covenant . . . is one of the fundamental instruments created by the international community for the global promotion and protection of human rights. . . . In view of the leading role that the [U.S.] plays in the international struggle for human rights, the absence of U.S. ratification of the Covenant is conspicuous and, in the view of many, hypocritical. The Committee believes that ratification will remove doubts about the seriousness of the U.S. commitment to human rights and strengthen the impact of U.S. efforts in the human rights field.”
U.S. Senate Chamber
Soon thereafter (April 2, 1992), the U.S. Senate debated the treaty. In presenting the resolution supporting such action, Senator Pell, the Chairman of the Foreign Relations Committee, said the U.S. “plays a leading role in the international struggle to promote and protect human rights. However, failure to ratify the covenant has blemished our record and cast doubt, in some quarters, about the seriousness of our commitment to human rights. Ratification will reverse this situation. It will demonstrate that our commitment is serious and sincere and strengthen our voice as a champion of human rights. Ratification will enable the [U.S.] to participate in the work of the Human Rights Committee established by the covenant to monitor compliance. The rights guaranteed by the covenant are the cornerstones of a democratic society. By ratifying the covenant now, we have an opportunity to promote democratic rights and freedoms and the rule of law in the former Soviet Republics, Eastern Europe, and other areas where democracy is taking hold.”
With little debate the Senate, by a two-thirds vote of those Senators present, then gave its advice and consent to ratification of the Covenant with the following five reservations, understandings, four declarations and one proviso:
The five reservations (1) preserved the higher protection of free speech and association guaranteed by the U.S. Constitution; (2) reserved the U.S. right to impose the death penalty as punishment for individuals under the age of 18; (3) limited the ban on”cruel, inhuman or degrading treatment or punishment” to the definitions in the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution; (4) reserved the right to impose a criminal penalty in force at the time of an offense even if a lighter penalty is later prescribed; and (5) reserved the right to treat juveniles as adults in exceptional circumstances.
The five understandings stated that (1) distinctions based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status are permissible if rationally related to a legitimate governmental objective; (2) compensation of victims for unlawful arrest, detention or miscarriage of justice are subject to reasonable requirements of U.S. law; (3) certain practices concerning accused and convicted individuals were preserved; (4) governmental responsibilities to criminal defendants were limited; and (5) the obligation of the U.S.federal government to enforce the Covenant in the federal system were limited.
The four declarations provided that (I) the Covenant was not self-executing; (2) states could not use the Covenant to reduce any higher standards of U.S. law; (3) the U.S. accepted the competence of the U.N. Human Rights Committee to resolve inter-State claims of non-compliance with the treaty; and (4) the right under Article 47’s right of all peoples to enjoy and utilize natural wealth and resources may be exercised only in accordance with international law.
The proviso stated that the Covenant did not require or authorize legislation or other action that was prohibited by the U.S. Constitution as interpreted by the U.S.
On June 5, 1992, President George H.W. Bush signed the U.S. instrument of ratification of the Covenant which, his signing statement said, “articulates the principles inherent in a democracy, including freedom of expression and peaceful assembly, equal protection under the law, and the right to liberty and security. By ratifying the Covenant, the United States is underscoring its commitment to these principles at home and abroad. We hope that our ratification of the Covenant will contribute to the fostering of democracy and human rights throughout the world.”
Three days later (June 8, 1992) that instrument of ratification was filed with the U.N. Secretary-General, thus marking the official date of U.S. ratification. This was nearly 26 years after the Covenant had been approved by the U.N.
Thereafter a number of other states filed objections to the U.S. reservations and understandings. [5]
Now 167 states are parties to the Covenant.
This account of the belated U.S. ratification of an important multilateral human rights treaty shows the complexity of the negotiation and adoption of such treaties and of their ratification by the U.S. There is a similar history of the U.S. ratification of (a) the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and (b) the Genocide Convention.
[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 141-43 (4th ed. LexisNexis 2009).
[2] The ICCPR is based upon the Universal Declaration of Human Rights, which was adopted by the U.N. General Assembly on December 10, 1948. The Declaration, however, is only a resolution of the General Assembly. It is not a treaty that imposes international legal obligations on states and thus was seen from the start as a basis for subsequent treaties, including the ICCPR.
[3] Weissbrodt, United States Ratification of the Human Rights Conventions, 63 U. MInn. L. Rev. 35 (1978).
[4] Simultaneously President Carter submitted to the Senate: the International Convention on the Elimination of All Forms for Racial Discrimination, which President Gerald Ford had signed on September 28, 1966, and which the U.S. subsequently ratified on October 21, 1994. Two other human rights treaties also were submitted to the Senate by President Carter on February 23, 1978, but they have not yet been ratified by the U.S.: the International Covenant on Economic, Social and Cultural Rights, which President Carter also had signed on October 5, 1977; and the American Convention on Human Rights, which he had signed on June 1, 1977.
[5] Weissbrodt, 63 U. Minn. L. Rev. at 54-77 (analysis and criticism of U.S. reservations, understandings and declarations).
The New York Times in its “Room for Debate” feature invites knowledgeable outside contributors to discuss news events and other timely issues. The feature also solicits comments on the topic from readers.
The feature’s July 9th topic is suggestions for amending the U.S. Constitution. Ten professors of history and law started the conversation with their suggested constitutional changes.
Contributors’ Comments
Direct Election of President. Article II, Section 2 provides for election of the president by an electoral college. Alexander Keyssar, the Stirling professor of history and social policy at Harvard’s Kennedy School, suggests abolishing the electoral college and having the president (and vice president) directly elected by the national popular vote.
He says the “concerns that prompted the Founding Fathers to adopt [the current] . . . system — a distrust of popular elections, worry that the people would be unfamiliar with national candidates, a desire to reinforce the great constitutional compromises between large states and small states, slave states and free states” are no longer valid.
In addition, Keyssar points out that we have learned about “shortcomings in the framers’ design: the person who wins the most votes doesn’t necessarily become president; the adoption of “winner take all” rules (permitted but not mandated by the Constitution) produces election campaigns that ignore most of the country and contribute to low turnout; the legislature of any state can decide to choose electors by itself and decline to hold an election at all; and the complex procedure for dealing with an election in which no candidate wins a clear majority of the electoral vote is fraught with peril.”
As indicated below, I support this proposal.
Qualifications for Office of President. The Constitution’s Article II, Section 4 establishes the following qualifications for the presidency: “a natural born citizen,” at least 35 years old and a resident of the U.S. for at least 14 years. Akhil Reed Amar, a professor of law and political science at Yale University, proposes this be changed to make eligible “those American citizens who happen to have been born abroad to non-American parents — and who later choose to become ‘naturalized’ American citizens.” This would be consistent with the overall historical trend of increasing equality and with the current practice in the 50 states.
I am indifferent on this proposal.
Federal Judges Tenure. The Constitution in Article III, Section 1 now provides that federal judges hold office during “good behavior,” which in practice has meant for life absent voluntary retirement. Jamal Greene, a professor of law at Columbia Law School and a former clerk for U.S. Supreme Court Associate Justice John Paul Stevens, says “In a democracy, no one person should wield so much power for so long.” To solve this problem, Greene endorses a proposal by Professors Steven Calabresi and James Lindgren for Supreme Court appointments with non-renewable 18-years terms, with one new justice every odd-numbered year.
As indicated below, I support this proposal.
Re-emphasize that Treaties Are Part of the Supreme Law of the Land. Under Article VI, Section 2 of the Constitution, “all treaties made, or which shall be made, under the authority of the United States, shall be [part of] the supreme law of the land, and the Judges in every State shall be bound thereby, anything in the Constitution of laws of any State to the contrary notwithstanding.” However, as pointed out by Jenny S. Martinez, the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law School, the U.S. Supreme Court has held that certain treaties were not enforceable against the states. Therefore, she suggests that this provision be re-emphasized in some way.
I agree that treaties under the existing Constitution are part of the supreme law of the land and that they should bind states. There, however, is no specific proposed amendment to react to.
Changing the Process for Amending the Constitution. Article V of the Constitution provides two methods of amending the Constitution: (i) specific proposed amendments adopted by two-thirds of each chamber of Congress plus ratification by three-fourths or 38 of the states; or (ii) a call for a constitutional convention by two-thirds or 34 of the states, whose proposed amendments are ratified by three-fourths or 38 of the states. The latter method (constitutional convention), has never been used, and Michael Rappaport, the Darling Foundation professor of law at the University of San Diego and the director of its Center for the Study of Constitutional Originalism, believes that this non-use “means that Congress has a veto on all amendments and therefore no amendment that Congress opposes, including necessary reforms of Congress’s power, can be enacted.”
Therefore, Rappaport proposes that the Constitution be changed “to eliminate the possibility of a runaway convention.” The best way, he says is dispensing with “a constitutional convention and instead have the state legislatures agree to propose a specific amendment. But any method that allows for a working alternative to Congress’s amendment monopoly would be an enormous improvement.”
Rappaport has a valid objection to the present constitutional scheme, and I could accept a proposal that would allow three-fourths of the states to propose specific amendments, but would still require a two-thirds vote by each house of the Congress to adopt an amendment.
Emphasize the 10th Amendment’s Limits on Federal Government’s Powers. Under Article I, Section 8 of the Constitution, the federal government has certain specified powers, and the Tenth Amendment to the Constitution states, “The powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people.”
According to Elizabeth Price Foley, the holder of the Institute for Justice Chair in constitutional litigation at Florida International University College of Law, these principles are important for liberty. As the Supreme Court unanimously stated in Bond v. United States (2011), “By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.”
She believes that the existing Constitution is sufficient on this point so long as it is followed by the courts, but is open to amendment to restore certain powers to the state and like Michael Rappaport endorses the suggestion that the states have the right to propose federal constitutional amendments.
Although as just stated, I support giving the states a right to propose specific amendments, I do not favor any amendments that seek to diminish the power of the federal government. In this age of globalization, it is unwise to emphasize states over the federal government.
Narrow Congress’ Power Over Interstate Commerce Power. As discussed in prior posts before and after the June 28, 2012, Supreme Court decision regarding the Affordable Care Act, the power of Congress under Article I, Section 8(3) to “regulate commerce . . . among the several States” has been interpreted by the Court to encompass intrastate commerce that has a substantial effect on interstate commerce.
Consistent with the views of Professor Foley, Randy E. Barnett, the Carmack Waterhouse professor of legal theory at Georgetown Law Center and one of the attorneys challenging the constitutionality of the Affordable Care Act in the Supreme Court, has proposed the following amendment that he says essentially returns the clause to its original meaning:
“The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”
I oppose this suggestion for the reasons stated in my prior posts.
Revising the First Amendment. The First Amendment to the Constitution states, in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .” Pauline Maier, the William Rand Kenan Jr. professor of American history at M.I.T, says that this language was a revision of a more expansive version prepared by James Madison. She, therefore, suggests returning to the following Madisonian version:
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed. The people shall not be deprived of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
This wording, like most of the first eight amendments, Msier believes, affirms basic rights in general terms, not as restrictions on the federal government. It also would undermine the Supreme Court’s decision about corporate speech in the Citizens United case.
I support this proposed amendment.
Delete the Second Amendment’s Right To Bear Arms. The Second Amendment to the Constitution provides that “the right of the people to keep and bear arms, shall not be infringed.” Melynda Price, an associate professor at the University of Kentucky College of Law, proposes the deletion of this right because of the amount of gun violence in the U.S.
I like the spirit of this proposal, but would have to evaluate specific language for such a change.
Clarify the Eighth Amendment’s Ban on “Cruel and Unusual Punishment.” The Eighth Amendment to the Constitution states, “cruel and unusual punishments [shall not be] inflicted.” Rachel E. Barkow, the Segal Family professor of regulatory law and policy and the faculty director at the Center on the Administration of Criminal Law at New York University, suggests this be clarified to “specifically state that excessive terms of incarceration are prohibited, just as it bans excessive [bail and] fines.” In addition, she says , it “should expressly prohibit mandatory sentences so that every case gets the benefit of individualized attention by a judge” and “insist that legislatures create a record showing that they considered empirical evidence about the law’s likely impact.”
I support this proposal.
Readers’ Comments
Readers are invited to add their comments, and I made the following suggested constitutional changes.
1. Outlaw Senate Filibuster. To require 60% of the Senators to agree in order to do almost anything is outrageous. It should only be 51% for most issues. Earlier I called the filibuster part of the abominable rules of the Senate; another post discussed revisions to the rule; and yet another post talked about additional attacks on the filibuster.
2. Change Weight of Senate Votes. Based on population, each Senator from Wyoming would have 1 vote, for example, but each Senator from California would have 66 votes. This approach would produce a total Senate vote of 1,094 based on the total U.S. population in 2010. The weightings would be changed every 10 years with the new census.
3. Change Term of House Representatives. Change the term from two years to four years to coincide with the presidential election.
4. Direct Election of President and Vice President. I agree with Professor Keyssar that the U.S. should institute direct election of the U.S. President by the national popular vote and abolish the electoral college.
5. Eliminate Life Tenure for Federal Judges. Impose a term limit on all federal judges, including Supreme Court Justices. One solution, perhaps by statute, would be to amend the current statute on judicial retirement (28 U.S.C. § 371) to make such retirement mandatory on reaching the current age and service requirements. I essentially concur in the comments of Professor Greene.
Many years ago I made other suggestions for constitutional changes in a virtual constitutional convention. More recently I have discussed what I regard as our antiquated or imbecilic Constitution.
With the U.S. Supreme Court arguments this week regarding the Affordable Health Care Act we are reading and hearing what seems like non-stop commentary on the constitutional arguments that are being made by the lawyers and questioned by the Justices.
As a retired lawyer who studied constitutional law in law school nearly 50 years ago and who was a lawyer in some constitutional cases, I should be enjoying this commentary. But I am not.
I increasingly am coming to the conclusion that the U.S. Constitution is antiquated and needs radical changes.
We in the U.S. have developed a cult of worshipping the Founding Fathers as if they were demigods. Yes, they were wise in many ways, especially on the need for checks and balances in any governmental system. But if they were as wise as we often think they were, then do we really think that these men of the late 18th century would want their descendants in the early 21st century to obsess over what we think they intended in the late 18th century? Especially over terms like “due process” and “cruel and unusual punishment” that appear on their face to invite evolving meaning as circumstances change?
The U.S., in my opinion, is one nation, and the national government needs to be able to address problems facing the nation, like the problem of providing affordable health care to its citizens. The so-called “individual mandate” is one way to address that problem and should be permissible.
There are so many other problems that the U.S. is not addressing today. Our governmental system–our Constitution–is not working, in my opinion.
I have no grand alternative constitutional schema in mind, but as previously noted, I think the U.S. Senate in particular needs radical reform if we are to retain a bicameral national legislature.
To require 60% of the Senators to agree in order to do almost anything for me is outrageous. It should only be 51% for most issues. This deficiency is exacerbated by the fact that each state has two and only two Senators regardless of the state’s population. Yes, this was part of the original grand and anti-democratic compromise in the late 18th century when there were 13 states. But the expansion of the union to 50 states has made the Senate even more anti-democratic.
Since I believe that it would not be wise to increase the size of the Senate to reflect the population of the states (like the allocation of seats in the U.S. House of Representatives) and that each state should continue to have two Senators in a bicameral upper house, I suggest for discussion that there be weighted voting in the Senate. Each Senator from Wyoming (the least populous state in 2010 with 564,000) would have 1 vote, for example, but each Senator from California (the most populous state in 2010 with 37,254,000) would have 66 votes (37254/564 = 66.05). This approach would produce a total Senate vote of 1,094 (total U.S. population in 2010 of 308,746,000 divided by 564,000 (population of Wyoming) = 547 x 2 = 1094). The weightings would be changed every 10 years with the new census population figures.
As I suggested in a 1996 virtual constitutional convention, I would also change the term of office of members of the House of Representatives from two years to four years to coincide with the presidential election. This should result in less divided and stalemated government.
I also recommend that we have direct election of the U.S. President by the national popular vote and abolish the electoral college. This would eliminate the possibility of a repeat of the outrageous Bush v. Gore decision of the U.S. Supreme Court in 2000.
This new constitutional framework would permit the national legislature to enact laws regulating guns and political contributions, now virtually forbidden by the Supreme Court’s interpretations of the existing Constitution.
The process of amending our current Constitution is appropriately difficult. Probably a new constitutional convention would be the most appropriate way to make the kind of changes I think should be considered and adopted. I despair, however, when I speculate of how such a convention could be held today.
