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Room for Debate: Fixing the U.S. Constitution

Over at the New York Times Room for Debate feature, the topic is: If the U.S. Constitution were being written today, what would you omit, add or clarify?  My own contribution is to end Congress’s monopoly on proposing constitutional amendments by fixing the convention method of amending the Constitution.  It currently does not work, because state legislatures fear a runaway convention.  I wrote about this issue at the Liberty Law Forum, which also included a couple of responses.

The Room for Debate topic included a variety of interesting answers.  One was by Randy Barnett, who proposed to amend Congress’s Commerce Clause authority so that it “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.”  This is definitely a good start, but I would want to add some checks on Congress using other powers (such as the Taxing Power and the Power to Enforce the Law of Nations).

Jamal Greene also proposed 18 year term limits for Supreme Court Justices, which I also support.

Reader Discussion

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on July 10, 2012 at 12:45:48 pm

Professor Rappaport, I noticed that one of the other proposals at the "Room fir Debate" forum is very much like yours. Professor Elizabeth Price Foley writes that the amendment process should be changed by adopting something called the "Madison Amendment."

See http://www.madisonamendment.org/

Interesting stuff. Have you heard of that proposed amendment? Do you support it?

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Andrew Hyman
on July 11, 2012 at 10:10:46 am

What worries me about rewriting the constitution nowadays is that for the past fifty years we have focused so much on rights that we have spent little time discussing structure. Who now studies the how and why of separation of powers? Who now studies what is a good or bad way to create a legislature? Who now studies what makes a good or bad veto power in the executive? Etc.

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Richard Samuelson
on July 11, 2012 at 14:38:04 pm

Professor Rappaport has studied refirm of the Article V process in some detail. See:

http://www.virginialawreview.org/content/pdfs/96/1509.pdf

The fear of opening a general convention that would entirely rewrite the Constitution is a valid fear, but that fear itself has prevented the states from successfully pressing for specific amendments. So, I tend to agree that Article V should be carefully amended (as Professors Rappaport and Foley suggest), even if it takes the threat (or even the reality) of a constitutional convention to do it.

P.S. Thanks to Professor Rappaport for pointing me to the article that I've linked to here.

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Andrew Hyman

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