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Liberty Forum on the Constitutional Amendment Process

The Liberty Forum feature of this site is an exciting one.  It provides for an essay on a topic of interest, followed by two responses by commentators, and then a possible reply by the original author.  The first Liberty Forum was written by the excellent Philip Hamburger on the topic of the proper office of the judge, a subject that Professor Hamburger knows something about.

The second Liberty Forum was written by yours truly on the problems created by the failure of the national convention amendment process and the consequences of that  failure for the protection of federalism.  The piece was based on this longer article.  Here is a short excerpt from my essay:

The failure of the convention method means that the Constitution largely operates as if it contained only the congressional proposal method for enacting amendments and therefore that no amendment that Congress does not support can be enacted.  This congressional and nationalistic bias in the amendment process has distorted our constitutional history by preventing amendments that check Congress and, unless corrected, promises to do the same to our constitutional future.

I was fortunate to have two excellent commentators from two different perspectives: Nick Dranias and Bradley Watson.  I have now posted a reply to their comments here.  Here is a short excerpt from my reply, The Middle Way:

Watson argues that I am too optimistic about the benefits of a reformed amendment process.  Dranias argues that I am too pessimistic about the current national convention amendment process.  Watson argues that, even if the amendment process is reformed, no significant improvements can happen until the country grows out of its progressive beliefs.  Dranias believes that significant benefits are possible now without any change in either the nation’s beliefs or the amendment process.  My position – that a reform of the national convention amendment process could produce significant benefits, even though it would not solve all of our problems – is right in the center.  The pairing of their two responses gives me the reasonable, middle position.

Reader Discussion

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on June 10, 2012 at 19:36:35 pm

I just found your forum and read your "Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them" and "The Middle Way." I thought both articles were brilliant. I am mostly in agreement with your conclusions.

There are a few items I want to comment on.

First, the foundation of American government is found in the sovereignty of the citizens. We freely keep a contract for an agency government, the Constitution. Our rights as sovereigns are limited only by "the Laws of Nature and of Nature's God." We exercise our sovereign rights to form and keep an agency of government at our pleasure. The government serves us. We do not serve the government. The Constitution defines the powers and limits on government. It cannot define the powers and limits of the citizens beyond our obligations to support the agency in performing its duties. (Regulations in the form of legislation are a different matter.)

Our rights over the Constitution are absolute. If we wish to toss it out and abandon constitutional government, we may. If we wish to completely rewrite the Constitution, we may. If we wish to modify it in any way, we may. If we wish to leave it intact, we may, and usually do. We may modify it through any process we wish, whether through the sword or pen; but being rational and moral we choose to discourage and avoid violence.

There are no limits on what we are permitted to do, or how we do it, except those provided in "the Laws of Nature and of Nature's God." That is what is meant by "all men are created equal." No one of us has been granted special powers by God to govern the rest of us. We are equally sovereign. Our sovereignty is unalienable. It cannot be taken from us by any person, group or any writing.

The structure of the Convention was not defined in the Constitution because it would have been inappropriate in that it would have attempted to take away from our sovereignty. Only the citizens can dictate the process for amending the Constitution when the Amendment Convention is being used.

The Amendment Convention is our way of having a rational and thoughtful process of exercising our sovereignty and modifying our contract for agency of government. The requirement that government call for a convention on our application is our way of letting our agent know that change may be coming from us and what forms those changes may take. It gives our agent notification that legal conditions and possible consequences apply to its actions and inactions. It gives our agent opportunity to prepare for those changes. It cannot define the citizen's process for amending the Constitution.

We may use whatever process pleases us.

My second comment is on the problem of selling specific changes to the people. There are two sides to this tightrope. One the one side is the problem of overprescribing the changes and protocols. When too much up front work is done, a lot of people will resist because they will feel they were not involved enough; like the amendment is being forced down their throats. When too little up front work is done, a lot of people will resist because there are too many unknowns. People will not support a prescribed amendment if it has too many shadows and too many possible bogey men. The balance requires involving the citizens in the process, without overwhelming everyone, while keeping out hidden agendas, and allaying the people's fears.

My final comment is on the character of the primary problem in the contract. It is unconscienable. If this one problem were solved most of the others would go away on their own.

When the Constitution is considered as a contract we can see quickly where the persistent overreach of government originates. The Constitution grants government positive powers. Government may may laws regulating us. It may extract funds from us. Those powers are necessary to a peaceful society. But those powers are not held in check by a neutral third party. There are some instruments to help reduce government overreach such as the balance of powers and the election cycle and a Federal court system, but time has proved those instruments ineffective over the long run. The balance of powers does not work when all three branches collude to overreach. Overreaching legislation that is put in place in one election cycle is not undone when the abusive office holders are removed from office. The citizens elect office holders based on their ability to bring home the bacon, not on their willingness to stay within the limits of the Constitution. The courts are a creation of the Legislature and Executive branches, so the courts reflect the character of those bodies. The courts are not neutral.

We have a contract in which one party has monopolistic powers over another; the monopolistic party has been granted the written right to extract funds and control the behavior of the other party; and no neutral party is empowered through the contract to adjudicate complaints from the abused party. It is an unconscienable contract.

What interests me about your work is the opportunity we have to repair the contract. What must happen is that the contract must be modified to create the neutral third party and make the monopolistic party subject to its rulings. If we do not make this change the abusive party will continue being abusive until our peace is destroyed, our welfare is consumed, and probably, our government collapses on itself. If we do make this change, most of the problems coming from government will go away.

The problem of the balanced budget will become a problem of due process. If a generation chooses to run up debt through its government, it may do so, as long as they hold only themselves responsible for that debt. The problem with debt as it is currently managed is that future generations, generations not even born yet, much less empowered to vote, are being required to pay off that debt. One generation improves itself financially by making an unempowered generation pay the bill. That is not due process. The proposed neutral third party would be empowered to address the debt problem as a problem of due process. No extra amendment would be necessary.

The problem of the line item veto would likewise go away. The practice of combining laws into single bills is not due process. Laws are not passed on their merit. They are passed on political advantage. The proposed neutral third party would be empowered to require each bill to address single laws and would be empowered to void bills that combine laws. Pork barrel politics would all but go away.

The problem of term limits would go away. Term limits attempts to reduce corruption. The neutral third party would be empowered to impeach any government office holder. If a President knowingly attempts to violate the limits in the Constitution, he should be impeached. That is obvious to anyone (I would hope). As things stand now, the President tends to violate the limits of the Constitution in collusion with Congress. Who is responsible for impeaching the President? That same Congress. See the problem here? An outside party needs to be empowered to impeach not just the President, but any Federal office holder. The problem of corruption will never go away, but removing the power of enforcement from the corrupt will help reduce its dark influence over our government.

The problem, it seems to me, is how to set up this office. South Korea has a working example of a government that has set up such a system. If you are interested, their split court system is worth looking at. I would make only two substantial changes to the South Korean Constitutional Court. I would remove the court from the Federal government completely and make the President of the Court a proper employee of the citizens. The citizens would elect the President of the Court directly. The citizens would set the salaries and budgets. The citizens would determine how the Court would do its job. The citizens would have the power to fire at least the President of the Court at any time. I would also attach a police force to the Court to make it proactive in looking for violations, so it functions more like a group of referees at a football game, and less like the Supreme Court which acts only in response to complaints.

That is my interest in your work here. I want to help make this happen, and I need help from folks like those here at Liberty Forum.

-- Scott

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