Change the Constitution: A what-if discussion

[NoPretentiousCodename]

Thanks for all the posts so far.

Slavery would indeed be an inviting target. One would have to be really clever, I think, and word it in a way such as some posters suggested. Of course it would go through much debate and some states might just ignore anti slavery provisions for as long as they could get away with it. Perhaps the best one could hope for is to give a president or congress the justification to act a couple of decades earlier.

One thing I care about is scientific research. We spend umpteen-Billion dollars on our military each year, yet scientists (such as cancer researchers) can easily spend more time looking for grant money than doing actual research. Now, throwing money at a problem won’t ensure a solution, but surely there have been advances delayed or missed due to lack of funding.

So I might try to slip some wording into the constitution to achieve that effect. Perhaps in the preamble, I would change “promote the general welfare” to appear before “provide for the common defense”{minor change}. I am pretty sure that the government wasn’t much into the research funding business in those days, so I would need to word the actual changes carefully.

I think it would be a change to the BOR. First I would suggest that they clarify what they intended by

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

{minor change}. The major change would be a new amendment. Perhaps something to the effect of:

Amendment XYZ-Funding of common defense:
In times of peace, the needs of the people shall not be considered second to the needs of any army, navy, or militia. In these times, a majority of tax money shall be judiciously spent on such projects as benefit the general population most, including security, health and education.{major change}

Obviously, somebody would need to word it better so as not to sound so anachronistic, and to put the words and concepts into 1780’s terms. Of course I think that science funding (along with public health and safety) are goals worth striving for in this day, and I let my congress-people know that. I wish we would spend in several years on research what we spend in one year on military (not to belittle the research that comes from defense sources).

Not saying it’s the most important issue, but I wanted to throw the idea out there.

[E-Sabbath]

I’d go for clarifying the 2nd amendment. Logically, it seems clear to me that the ‘milita’ is a justifying clause, but not the meat of the matter. It seems the other way to others.

I would also make the 10th amendment more clear. Interstate commerce is another good call… but it did give us the highways. Tighten it up.

Right to Privacy in one’s domain: Man’s Home is his Castle amendment.

Slavery needs to be altered, but it could not be abolished at that point.

[Dewey_Cheatem_Undhow]

@E-Sabbath

Interstate commerce is another good call… but it did give us the highways.

Actually, highways are the product of the taxing/spending power, not the commerce power.

If you want a noble use of the commerce clause (albeit one that also illustrates how elastic the notion of “commerce” can be), look to the 1964 Civil Rights Act.

[Evil_Captor]

I would add some clarifying language to the first amendment.

“Congress shall make no laws restricting the freedom of speech. Neither shall any other governmental entity within the jurisdiction of the United States. And anyone who DOES attempt to restrict freedom of speech shall be liable for severe legal penalties. This especially goes for you damn churchies out there. If you don’t like the sex stuff, DON"T WATCH IT!”

[Dr.Love]

I’d also change the first amendment a bit. Change “Congress shall make no law…” to something more like “No governmental entity shall take any action…” I’d also take “respecting an establishment of religion” and spice it up to make it more accurately reflect Jefferson’s Wall of Seperation idea.

[2sense]

@Zoe

But don’t forget about the slaves in the North. I believe that Vermont was the first state to abolish slavery, but that was after the Constitution was written.

There likely were a few slaves in the Green Mountains before the state was organized but you could say that slavery wasn’t abolished in Vermont because it never existed. It was outlawed from their first constitution in 1777, a decade before the constitutional convention.

Still, it is important to realize that the North free/South slave dichotomy didn’t exist in the 1780s. Slavery was uncommon in New England, common in the middle states but didn’t have much economic importance outside of New York, and ubiquitous in the South. There was an important economic difference between the Upper and Deep South. Before the spread of the cotton gin Virginia and Maryland planters had more slave labor than they could efficiently utilize and so tended to be opposed to the slave trade. They could make more money exporting slaves if the Deep South couldn’t buy slaves from overseas. In the North, Pennsylvania had enacted a gradual emancipation law. Every child born to a slave woman after the 4th of July, 1781 would be free upon reaching their majority. That there was a single state in the Union where slavery was technically illegal in 1787 was brought about by those damn liberal activist judges in Massachusetts. Commonwealth v Jennison ruled that slavery violated the state constitution but slavery still persisted.

There was no way a constitution outlawing slavery, or even creating a government empowered to outlaw slavery, then or in the future, was ever going to be ratified by any state south of the Chesapeake. That doesn’t mean that slavery had to be supported as emphatically as it was in the Constitution. The Fugitive Slave Clause could have been avoided and given the economic interests of the Upper South perhaps the prohibition against banning the slave trade could have been limited to the year 1800 as the compromise was originally structured. Not that we should allow reality to interrupt the fun of our hypotheticals.

Other than the slavery issue, for my part I would wish for the president to be chosen by the Congress as nearly happened. Even if limited to only a single seven year term the developing party system would have ensured a closer relationship between the legislative and executive branches. A more consolidated and efficient government would reduce the irresponsiblity and gridlock that is the normal fare in the Capitol.

@Liberal

No legislature. No provision for amendments. One law: “Government shall guarantee every citizen freedom from initiated force and deception.” The reason is because I believe that peace and honesty is the only efficacious context in which free people may pursue their own happiness in their own way.

How quaint. The rest of us are talking about limiting slavery and you propose to enslave us all. Having just won a bloody war for the right to govern ourselves there was no way we would throw it away so soon.

[Lumpy]

The problem with changing the Constitution is that when it was ratified in the 18th century, most of the safeguarding provisions in it applied exclusively to the federal government. Other than the clause about “guaranteeing a republican form of government”, the Constitution simply takes for granted that democracy flows from the states, since that’s the level that popular suffrage took place at. There was very little direct control by the people at the federal level; the Chief Executive is chosen by an Electoral College, which does NOT necessarily have to follow the result of popular vote. The Senators were appointed by the state governments, not voted for. In fact I don’t know if even the Representatives HAD to be chosen by popular vote. The federal government was originally like what a somewhat strengthened UN would be today. The states ceded some authority over things that were clearly the federal government’s business, but jealously guarded what they saw as their sovereign rights. The current situation - where the Federal government is a “higher court of appeal” for people who believe that local government has trampled their rights - is an exact 180-degree role reversal from how the US was originally envisioned. The founding father’s primary concern was that the federal government not be expanded into an imperial dictatorship, with the states reduced to mere provinces- in other words, what we pretty much have today.

So with the benefit of 20/20 hindsight, but given the political and social realities of the day, here’s what I would have suggested:

1. The most proactive abolitionist agenda possible that would not cause the southern delegates to walk. At a minimum I would aim at giving the Federal government the explicit right to ban slavery from any or all western territories. Better still would be a provision that all new states would have to be free. An expiration clause on slavery if possible.

2. Either explicity ban secession, or explicity state what conditions it may take place under.

3. Raise the issue of judicial review, and either incorporate it into the Constitution or proscribe it.

4. Make some provision for party politics- either allow for it, or try to suppress it- but not simply assume it won’t exist.

5. Reform the second amendment. Best option would be requiring universal milita training along Swiss lines.

[Dewey_Cheatem_Undhow]

@2sense

Other than the slavery issue, for my part I would wish for the president to be chosen by the Congress as nearly happened. Even if limited to only a single seven year term the developing party system would have ensured a closer relationship between the legislative and executive branches. A more consolidated and efficient government would reduce the irresponsiblity and gridlock that is the normal fare in the Capitol.

This would be, essentially, a parliamentary system of government, which the framers explicity rejected. Separation of powers, checks and balances and all that.

[Steve_MB]

@Dewey Cheatem Undhow

Of course, the authors of the 14th amendment never intended such an extension.

This turns out not to be the case:

@Original Drafters of the Fourteenth Amendment

The first draft of the proposed Fourteenth Amendment was debated in the House for three days, beginning on February 27, 1866. Bingham, its author, argued on its behalf that previously “this immortal bill of rights embodied in the Constitution, rested for its execution and enforcement hitherto upon the fidelity of the States.”[28]

Representative Robert Hale of New York saw no need for the amendment, because he interpreted the existing Bill of Rights to bind not just Congress but also the States…

Bingham wished to “arm Congress with the power to … punish all violations by State Officers of the bill of rights.”[64] In drafting the first section of the Fourteenth Amendment, Bingham clearly sought to protect the same rights…

Howard introduced the proposed amendment in the Senate on behalf of the Joint Committee, explaining “the views and motives which influenced that Committee.”[114] After acknowledging the important role of the testimony before the Joint Committee, Howard referred to “the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press;. … the right to keep and bear arms”[115] (emphasis added). Howard averred: “The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees”

[Dewey_Cheatem_Undhow]

@Steve MB

This turns out not to be the case:

All that article proves is that selective quotation and preconcieved interpretations can yield any result at all.

Bottom line: full incorporation wasn’t judicially recognized until Hugo Black’s time on the court, many generations after the passage of the 14th. If their intent was to incorporate, someone would have said something, especially given the many decision that explicitly disavowed the notion that the Bill of Rights were applicable to the states between the time of the amendment’s passage and Black’s time on the court. Indeed, if their intent was to incorporate, they would have simply put language to that effect into the amendment itself.

Proponents of full incorporation never seem to be able to answer one thing: if the framers of the 14th amendment intended it to apply the Bill of Rights to the states, why did they include a due process clause in the amendment? There’s one already there in the 5th amendment. If the 14th incorporates, an additional due process clause is wholly unnecessary.

[pravnik]

A extended study on the history of the amendment process and the historical development of constitutional case law through the U.S. Supreme Court and the thirteen U.S. Circuit Courts of Appeals have led me to the conclusion that one Amendment to the United States Consitution is needed above and beyond all others: two for one taco Tuesdays!

[Gorsnak]

@Dewey Cheatem Undhow

All that article proves is that selective quotation and preconcieved interpretations can yield any result at all.

Bottom line: full incorporation wasn’t judicially recognized until Hugo Black’s time on the court, many generations after the passage of the 14th. If their intent was to incorporate, someone would have said something, especially given the many decision that explicitly disavowed the notion that the Bill of Rights were applicable to the states between the time of the amendment’s passage and Black’s time on the court. Indeed, if their intent was to incorporate, they would have simply put language to that effect into the amendment itself.

Proponents of full incorporation never seem to be able to answer one thing: if the framers of the 14th amendment intended it to apply the Bill of Rights to the states, why did they include a due process clause in the amendment? There’s one already there in the 5th amendment. If the 14th incorporates, an additional due process clause is wholly unnecessary.

You like posing these little conundrums, but fail to realize that they cut both ways.

“Indeed, if their intent was to limit equal protection to issues of race, they would have simply put language to that effect into the amendment itself.”

And then, of course, there’s the wholly unnecessary 15th amendment.

What Steve MB’s quote really demonstrates is that not all leglislators involved in the passing of any of the constitutional documents, be they the original or amendments, agreed on what the text they were implementing entailed. They disagreed about what, in fact, they were doing. It follows, then, that the doctrine of original intent is virtually meaningless, since the original intent of the framers is fragmented and contradictory.

[pravnik]

@pravnik

A extended study on the history of the amendment process and the historical development of constitutional case law through the U.S. Supreme Court and the thirteen U.S. Circuit Courts of Appeals have led me to the conclusion that one Amendment to the United States Consitution is needed above and beyond all others: two for one taco Tuesdays!

Erm, I mean, an explicit enumertion of the incorporation doctrine.

[foolsguinea]

Well, a joint session of Congress electing a President to a fixed term isn’t really parliamentary government. And Congress can impeach the President, so I think the argument that they explicitly rejected Congressional authority over the President isn’t quite the whole story.

What I would do, though, is put in a defined secession process.

[pravnik]

@Dewey Cheatem Undhow

Proponents of full incorporation never seem to be able to answer one thing: if the framers of the 14th amendment intended it to apply the Bill of Rights to the states, why did they include a due process clause in the amendment? There’s one already there in the 5th amendment. If the 14th incorporates, an additional due process clause is wholly unnecessary.

Maybe they intended seletive incorporation, and wanted to ensure that the Due Process was explictily included as one of those incorporated rights?

[Dewey_Cheatem_Undhow]

@Gorsnak

You like posing these little conundrums, but fail to realize that they cut both ways.

“Indeed, if their intent was to limit equal protection to issues of race, they would have simply put language to that effect into the amendment itself.”

Cute, but the overwhelming weight of the historical record shows that race, and specifically concerns over freed black slaves, were the animating factor in passing the 14th.

Compare that to the “evidence” for incorporation. Outside of an odd quote or two from Bingham, nothing really addresses that issue. Even in Steve’s lengthy article, most of the quotations are so general that they can’t honestly be said to be describing the substance of the amendment – they’re just ordinary political bombast.

@Gorsnak

You like posing these little conundrums, but fail to realize that And then, of course, there’s the wholly unnecessary 15th amendment.

Protects a political right arguably not covered by the 14th amendment.

@Gorsnak

What Steve MB’s quote really demonstrates is that not all leglislators involved in the passing of any of the constitutional documents, be they the original or amendments, agreed on what the text they were implementing entailed. They disagreed about what, in fact, they were doing. It follows, then, that the doctrine of original intent is virtually meaningless, since the original intent of the framers is fragmented and contradictory.

No, it only demonstrates that original intent can encompass a multitude of competing views as to what the historical record shows. Indeed, I accept Steve’s argument as being essentially intentist in its origin. It’s a legitimate position to hold. I just think that position doesn’t hold up very well when you look at the evidence in the historical record.

BTW, FTR, I accept incorporation on pure stare decisis grounds. I just think we should recognize from the outset that its origins are dubious at best.

[Dewey_Cheatem_Undhow]

@pravnik

Maybe they intended seletive incorporation, and wanted to ensure that the Due Process was explictily included as one of those incorporated rights?

If they intended selective incorporation and named those things they wanted selectively incorporated, why didn’t they list other things besides due process?

The simpler explanation is that they weren’t trying to incorporate, and they named due process because that was the one thing in the Bill of Rights they wanted enforced against the states. Occam’s Razor.

[pravnik]

@Dewey Cheatem Undhow

BTW, FTR, I accept incorporation on pure stare decisis grounds.

Even decisions about the incorporation of unenumerated rights, like the dreaded penumbral right to privacy?

[Gorsnak]

@Dewey Cheatem Undhow

Protects a political right arguably not covered by the 14th amendment.

Rather disingenuous of you to then use the existence of the 19th as evidence that equal protection doesn’t (or shouldn’t, anyways) extend to gender, as you have done in the past.

Your general argument on intent is also rather odd, since most of the framers of the Bill of Rights were proponents of natural rights theory. Surely, then, it should be read through that lens, but you of course do not accept this.

[kanicbird]

Well so many thing.

1st the 2nd would be stated in year 2000 language to make it clear that the right is one of the people, and that no gov’t entity should interfere w/ it at all.

2nd would prevent the fed gov’t from ‘taking’ powers not granted to it, it must be given to the fed by the states. (EPA, FCC, DoT, Etc.)

3rd would be a limit that the gov’t could take from the people during peace times.

4th Property taxes would not be permitted at any level, if someone wants to live as a hermit on property he owns, he should not be required to give the gov’t anything.

As for ending slavery, I think it would have put the US at a big disadvantage till the industrial revolution got started, and causing the end of slavery so early could have ment the defeat of the US in the war of 1812.