Happy Constitution Day - and a Question
Today is Constitution Day: 223 years ago today, the delegates at the Philadelphia convention signed the finished charter. Their magnificent document has been copied in many other countries, and has inspired countless others. Example: 20 years ago I was studying European Community law in the UK under an ardent European federalist; the professor began a lecture by pulling out a well-worn pocket Constitution and declaring it to be his favorite document of all time.
Here at home, it sometimes feels as though the Constitution is under siege. Justice Souter says that originalism has "only a tenuous connection to reality." Justice Breyer says much the same thing. Law professor David Strauss recently celebrated the fact that the text of the Constitution plays "at most a ceremonial role" in the majority of instances.
One of the Left's favorite strawmen is the notion that originalists want the Constitution to remain, unchanged, in its pristine 1787 condition. That's just not true - we have no problem with changing the Constitution; in fact the Founders gave us a nifty mechanism to do so: it's called amending. The Left seems to think that the Constitution is ripe for change whenever they can muster five votes on the Supreme Court. Over at this conversation, Peter made an interesting observation -- Justice Scalia once said that he would amend the Constitution more rather than less often, since that is the only honest way to update the Constitution.
And so on this Constitution Day, I ask my fellow Ricocheterians to weigh in on either of the following questions:
- Which "lost" constitutional provision would you most like to revive (privileges and immunities, commerce, etc)?
- What amendment would you most like to adopt?
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Comments :
May '10
Re: Happy Constitution Day - and a Question
An amendment that reads something like, "Seriously, you guys. Stick to the rest of this document and quit pretending it says things that aren't in there. Seriously." Maybe followed by a footnote saying, "Italics mean we are not joking."
Jun '10
Re: Happy Constitution Day - and a Question
My amendment would prohibit public employees (employees paid primarily from tax revenues) from joining labor unions and negotiating their employment contracts collectively. Public employees, by definition, never negotiate directly with the people paying their salaries, and so, will always be negotiating with a third party--a party not sufficiently invested in the outcome. The current system has demonstrated that it doesn't have the proper checks and balances in place, and is unlikely to reform itself. The current system is ripe for government corruption, or rather, more government corruption. It's already corrupt.
Aug '10
Re: Happy Constitution Day - and a Question
Adam, the Repeal Amendment from your commentary yesterday is perfect. The literal dictatorship of D.C. is what we must focus on, and this would do it :
"In today's WSJ, Prof. Randy Barnett and William Howell (Speaker of the Virginia House of Delegates) have an idea that sounds great to me: a "Repeal Amendment." This would be an amendment to the US Constitution that says the following:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
Aug '10
Re: Happy Constitution Day - and a Question
By the way, James and Dolley Madison's home, Montpelier, is open and free today, and they're having a large celebration. The U.S. Army Fife & Drum Corp. will be there, and actors playing Madison and Jefferson will debate the Constitution.
The house has just undergone a $20 million restoration, and is now just as it was when the Madison's lived there.
Re: Happy Constitution Day - and a Question
What about a balanced budget amendment? Most states have one, so why no the federal government?
Sep '10
Re: Happy Constitution Day - and a Question
River:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed." · Sep 17 at 6:04am
I like it. The only change I would make would be to add a provision that all the state repeal resolutions on a given law should be made during the same two-year election cycle so that we avoid the situation we have with ratifying Constitutional amendments wherein a proposed amendment can slowly accumulate states over decades or centuries and therefore no national majority ever need approve of the amendment in order to ratify it.
Sep '10
Re: Happy Constitution Day - and a Question
I think there's a fundamental Free Margaritas for Everyone right hiding in one of the emanations of penumbrae that we need to uncover.
Jun '10
Re: Happy Constitution Day - and a Question
You could hide a Buick in some of those "emanations of penumbrae."
May '10
Re: Happy Constitution Day - and a Question
The text of bills proposed by Congress should not consist of more words than the Constitution itself. The Constitution covers a lot of ground without a lot of bovine excrement; should we not have the same standard for new laws created under that document?
Sep '10
Re: Happy Constitution Day - and a Question
States can get away with having balanced budget amendments precisely because the Federal Government doesn't. When states get into budget troubles during economic downturns the Federal government can simply give the states block grants to help the states balance their budgets.
If the Federal Government had to balance its budget, then in recessions and depressions as tax revenues fall, the Federal Government would have to cut back on spending. That would result in pro-cyclical fiscal policy. What we want is counter-cyclical fiscal policy where the Federal Government runs a balanced budget (or surplus) during good times and a deficit during recessions.
Edited on Sep 17, 2010 at 7:32amMay '10
Re: Happy Constitution Day - and a Question
I doubt all states with that budget amendment adhere to it, anyway.
River:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed." · Sep 17 at 6:04am
I like it.
Sep '10
Re: Happy Constitution Day - and a Question
Mack the Mike
"When states get into budget troubles during economic downturns the Federal government can simply give the states block grants to help the states balance their budgets."
Block grants did not exist prior to 1966 and were not substantial until the 1970's what did we do the other 200 years?
The government would need some leeway on a balanced budget amendment but I might prefer a fiscal policy of surplus and deficit to what we have now which is structural deficits getting worse as far as the eye can see.
Sep '10
Re: Happy Constitution Day - and a Question
Ross Conatser:
Block grants did not exist prior to 1966 and were not substantial until the 1970's what did we do the other 200 years?
Suffered through huge swings of the boom-bust cycle, that's what we did.
Sep '10
Re: Happy Constitution Day - and a Question
Mack The Mike
If the Federal Government had to balance its budget, then in recessions and depressions as tax revenues fall, the Federal Government would have to cut back on spending.
I was wrong about that. The Government wouldn't have to cut spending. More likely it would raise taxes.
Jul '10
Re: Happy Constitution Day - and a Question
Term limits.
A term limits amendment would make a lot of other prospective amendments superfluous.
Sep '10
Re: Happy Constitution Day - and a Question
I think Randy Barnett's Federalism Amendment has some merit:
http://www.tenthamendmentcenter.com/2009/04/24/randy-barnett-and-the-destruction-of-federalism/
Re: Happy Constitution Day - and a Question
Agreed, Kenneth. I confess I've had my doubts about term limits, but every time I feel myself going wobbly on the issue I think about Pete Stark. And Charlie Rangel. And . . . you get the point. I also agree with Emily on a balanced budget amendment. It may be the only way to starve the beast. And Frozen Chosen had an intriguing suggestion over here about repealing the 17th Amendment.
As a lawyer, I have the urge to add a "Definitions" section to the Constitution, eg, "Commerce" means interstate trade; "Due Process" means procedure, not substantive fairness, etc. I know, I know, Justice Breyer and his ilk could twist the definitions every which way, but perhaps some black-letter definitions would make their abuses be a little more obvious?
Jun '10
Re: Happy Constitution Day - and a Question
Mack The Mike
States can get away with having balanced budget amendments precisely because the Federal Government doesn't. ...If the Federal Government had to balance its budget, then in recessions and depressions as tax revenues fall, the Federal Government would have to cut back on spending. That would result in pro-cyclical fiscal policy. What we want is counter-cyclical fiscal policy where the Federal Government runs a balanced budget (or surplus) during good times and a deficit during recessions. · Sep 17 at 7:31am
Edited on Sep 17 at 07:32 am
I understand the economic theory but, when all of the off-budget liabilites and GSE's are factored in, have we ever run a surplus? Some restriction on federal fiscal policy has to be in the Constitution. How about a restriction on indebtedness to foreign governments?
May '10
Re: Happy Constitution Day - and a Question
My favorite would be an amendment revivifying the Commerce clause, by emphasizing that it applies to, you know, commerce between the states. The eviscerating of the current clause by generations of timid and feckless Supreme Court justices has vastly expanded Federal powers to meddle with every aspect of economic life. I leave it to the experts to estimate just how much Federal legislation and regulation would become null and void if the Commerce clause were restored to its original strength.
Want to put the Federal beast on a diet? I can't think of a more far-reaching and effective way. Much quicker than trying to get Congress to repeal decades of bad and intrusive law and regulation.
Re: Happy Constitution Day - and a Question
etoiledunord
You could hide a Buick in some of those "emanations of penumbrae." · Sep 17 at 7:06am
With Halloween coming up, I'm thinking of dressing up as a penumbral emanation. But I'd hate to scare the trick-or-treaters.