Let's have a Dopey Constitutional Convention

Since it is clear that Congress has illegally refused to hold a Constitution Convention, I say we hold it here on the Straight Dope.

As the Chair (since I started the thread) the ground rules are

  1. that you are allowed to add or modify up to 3 items to the Constitution
  2. you may debate (pro or con) any number of previous proposed items
  3. explanations are always helpful to see where you are coming from

I’ll start. I’m a bit of a Federalist and I really hate when activists judges (both right and left) “interpret” the Constitution but rather fold, spindle, annd mutilate it to meet a political end. For example: the Kelo decision or the decisions after the Civil War (screw consistancy - just punish the rebel States). I really hate the South Dakota v. Dole which allows the Federal Government to legislate outside the confines of the Constitution with pursestrings. My 3 proposals are

a) rewriting the ICC to limit Federal jurisdiction to those specific transactions that cross state line
b) rewriting the definition of citizenship in the 14th amendment to agree with the original intention viz. children born of people in this country illegally (anchor babies) are NOT citizens
c) re-emphesizing the Tenth Amendment specifically making it unconstitutional for Congress to pass a law not specifically addressed by its powers in Article I or any Amendment. For example, IDEA is entirely appropriate under the Fifth and Fourteenth Amendment but NCLB is not since education is left up to the states. Mandating state drinking age upheld in SD v Dole would be unconstitutional by this. Nebulous terms such as “Necessary and proper” “The Congress shall have power to enforce this article by appropriate legislation” or “General welfare” cannot be used to overextend Congress’ powers outside those specified in the Constitution.

Regarding your point b, how do you know their original intention wasn’t to say “everyone born in this country is a citizen”? There really was no such thing as an illegal immigrant back then. Immigration was pretty much unrestricted, so why do you think the writers of the 14th amendment would want to restrict their children?

Can we agree the first amendment is perfectly acceptable as is?

And can we agree that the second amendment should be clarified? (I’m going to say to just remove the first clause, to make it explicit as current legal interpretation stands, that it’s an individual right.)
I’d like to just get the obvious and predictable second amendment argument out of the way by proposing a status quo (as currently interpreted) on it.

As for my third bit? I propose the internet should be considered as a navigational river in regards to e-mail, and that the Post Office should have control of it, supply it, and network neutrality should be enforced.

(Wi-Max in the post boxes. Should work just fine, most towns.)

I’d also like to agree that the ICC should be revised and limited significantly, probably in the way mentioned above.

Not allowing anchor babies is a modern reaction to a modern issue. If you believe the constitution shouldn’t be manipulated to fit an agenda, and should be read as written in its time, you cant change it to address modern things, right?

Well, you can certainly change the Constitution any time you want to to address whatever needs to be addressed.

But doing so requires careful consideration of the future, otherwise you get a few amendments that make us look bad. Things having to do with certain people not being allowed to cast a full vote, and such.

If you start throwing out amendments willy-nilly to address the problems of the day, you’ll only be wasting the time of people in the future to undo your amendment once the sociological landscape has changed.

Maybe amendments could have expiration dates, decades into the future, and must be either renewed exactly as written or they automatically expire. If something’s about to expire and you want to change a few specific points, you’d have to re-write it and start from scratch.

From the Congressional debates when it was proposed it is clear that the stilted language was to deal with the citizenship issues of Native-Americans on reservations. It was not thought by most that foreign nationals were considered under American jurisdiction and in fact, the landmark case of Wong Kim Ark deals with the parents being in this country legally (on visas) and therefore under American jurisdiction but the decision implies that the same applies of born on American soil=American citizen logic applies to those here illegally (but not on possessions re: Insular cases).

I think it is just poorly worded and that SCOTUS chose a very traditional definition of jurisdition which basically says if you don’t have diplomatic immunity or are an invading soldier, you have to abide by our laws. For another example, the usage of the word “resident” to address the idea of state citizenship upheld by Dred Scott. The Supreme Court has repeatedly upheld that illegal aliens are residents (they reside in a state) so theoretically a state with 1 legal citizen and 999,999 illegal aliens would be apportioned representatives for 1,000,000 population although only 1 person could legally vote (I guess they’d be elected at large rather than by district).

Double post for not making the 5 minute edit window.

Completely wrong! The Constitution should be changed or rather amended to address modern issues. The point I was making is that those sort of changes should go through the appropriate process rather than some Judge or 5 Justices being able to change it through a simple ruling.

I completely agree that the Constitution can be interpreted to address a moden issue (like E-Sabbath’s idea about email) but the problem comes from judges completely changing an accepted interpretation of the Constitution for non-judicial means. A perfect example was the sudden Constitutionality of the New Deal after the court packing failure.

Here is another example: Is West Virginia a legal state? According to SCOTUS, yes because in Virginia v West Virginia (1871 IIRC) a group that are not elected officials can declare themselves the legal government over the legally elected state government as long as Congress says it’s OK. How is this guarrantying a “Republican form of government”? The answer is it wasn’t but it served the political end of punishing Virginia for rebelling.

N.B.: Yes I know that Luther v. Borden makes it a political question, but then isn’t there a problem when Congress says that a group of people can overthrow an elected State government simply by delaring themselves the new government and it is legal as long as the new group agrees with the politics of the majority of Congress. This means that if in every red states, a group of 30 Democrats said THEY were the new government and Congress agrees, then every state’s Republican-controlled government is now legally deposed.

Well, Wong Kim Ark’s parents weren’t in the country on visas…they had been resident in the country when he was born, and before the Chinese Exclusion Act had been passed.

But Wong Kim Ark isn’t really relevant to what the writers of the Amendment thought. The Chinese Exclusion Act was passed 16 years after the 14th amendment, and at the time of the 14th amendment, the idea that a class of persons were legally ineligible to reside in the United States was alien to them. As far as they were concerned, everyone living in the United States, with the exception of Native Americans, who had independent sovereignty, and foreign embassies, which were exempt from US law, were under the jurisdiction of the United States and its laws.

  1. Abolish the U.S. Senate; devolve all its powers and functions on the House of Representatives. For two reasons: (a) The conception of the Senate, under which a Montanan’s vote counts 37 times as much as a Californian’s, is fundamentally undemocratic, and the political necessities of the “Great Compromise” of 1789 no longer apply today. (b) A one-house legislature is stronger as against the executive than a two-house legislature. In 1789 the Framers were mainly worried about legislative abuses of power – that’s why all the plans they considered weakened the legislature by division; but in the two centuries since it has become very clear that the executive is actually the more dangerous branch.

  2. Promote a multiparty political system by electing the House by some form of proportional representation.

  3. Abolish the Electoral College and elect the president by direct national vote based on instant-runoff voting, thus allowing third-party candidates to run without playing a “spoiler” role.

  1. Restrict the Interstate Commerce clause to cover actual interstate commerce and not things that theoretically could impact it.

  2. Strengthen the right to assembly by making loitering laws unconstitutional.

  3. If possible, change from a two party system to a multi-party system without instant runoffs.

  1. I think that the country is so intertwined now that it the idea of solely intrastate commerce makes little sense. I would change the Constitution to allow Congress to regulate commerce, and make it so states can only regulate commerce in areas where Congress has not.

  2. I would amend the Constitution to abolish the Senate’s cloture rule. I believe in majority rule, and the cloture rule allows minority rule by giving way too much power to the minority party.

  3. I would amend the Constitution to spell out what “advise and consent” means with regard to the Senate’s vote on presidential appointments. For cabinet positions, the Senate may only vote to deny if the prospective appointee appears unqualified or uncredentialled, like if McCain had won the election and nominated Joe the Plumber to be Secretary of State, for instance. For judicial lifetime appointments, the nominee can be voted down for any reason. If I had one more change to propose, I’d make the term of all judicial appointments be limited to 15 years.

Would you maintain the existing 2 year terms for representatives? The House of Representatives has always been the less “responsible” branch of Congress, at least partly because their short terms mean that they’re constantly in campaign mode.

Also, are you suggesting proportional representation at the national level, or with geographical districts?

Having two Houses elected on different cycles provides a bulwark against extremist shifts.

I’d suggest the simpler Preference Voting.

Two things:

  1. I think it’s less than clear that Congress’ failure to hold an Article V Constitutional convention has contravened either the letter or the spirit of Article V.

While from the OP’s link, 750 Article V petitions have been filed by the states since the ratification of the Constitution, including 60 in the past 20 years, in recent years at least, it tends to be the same states filing multiple petitions on different issues: only 17 different states have filed those 60 Article V petitions in the past 20 years. So there’s no way to say that 2/3 of the states have properly indicated a contemporary desire for a Constitutional convention.

  1. The only thing a Constitutional convention accomplishes is to bypass Congress; any amendments passed by such a convention would still have to be ratified by 3/4 of the states. So the main point of such a Convention should be issues that have much less support in Congress than they would in the states. BrainGlutton’s proposed amendments are good examples of this.

The 14th amendment has since 1886 has been interpreted to the effect that corporations are “people” and enjoy the rights of individuals. To my mind, this is THE most egregious piece of judicial legislation EVER. A brief history of this nightmare can be found here.

IMO. we need a new amendment that specifically disallows 14th amendment protection to corporations.

One of my favorites. Problem is that the one really bipartisan position on the hill is that “There shall be no third party.”

What do you mean by “responsible”? If they’re constantly in campaign mode then they’re constantly responsible to the voters.

Some form of multi-member-district representation. Straight party-list PR, with no geographical element, works well enough in a tiny country like Israel, but for a huge country like the U.S. we need to retain some geographical representation.

PR provides a better bulwark. The first-past-the-post single-member-district system tends to inflate the importance of minor shifts in public opinion. The 1994 election returned a Republican majority to both houses of Congress even though the national aggregate Pub voted exceeded the Dem vote by less than 1/2 of 1%. A PR system is less vulnerable to wild swings; there would be several parties in Congress, none with a majority, and an election would be a matter of slightly increasing/reducing the proportionate share of each.

Yes, in that sense they’re more responsible. I was using the word more in the “good judgment” sense. The closer an election, the more likely a politician is to avoid risks and unpopular (but correct) actions, and the more likely to pursue incorrect (but popular) actions. I think representative democracy works best with some downtime between elections (but then, I’ve always been more of a trustee kind of guy).

I’ll admit that PR might reduce this problem to some extent, depending on how it is implemented.