New US Constitution (here you go, 2sense)

Great Debates
1

The United States Constitution has been in force since 1789. As is fairly well known, I think, the Founding Fathers didn’t expect their document to last anywhere near that long–I recall that Thomas Jefferson himself thought it was good for 20 years or so. Through the years the Constitution has bent–sometimes seriously–but never broken, despite the fact that we’ve been using it for 10 times as long as TJ contemplated. A remarkable document, in my opinion. They built to last in those days.

But there is plenty of disagreement on various parts of the Constitution–up to and including the form of government it created. Lots of people–including quite a few on the SDMB–think there are areas which should be different. I’ve seen and heard, both here and in other places, sentiments to the effect that the whole thing is flawed and should be replaced. (I’ve seen 2sense make statements to this effect more than once, which is why I stuck him in the thread title.) I’ll state for the record that I disagree with this view–on occasions the Constitution is violated and ignored, and the meaning is twisted into ridiculous shapes to support the politics of the moment, but it still works to preserve our basic freedoms. We Americans do not derive our liberties from the sufferance of the government, as is true of so many other places; we derive our liberties from the fact that our government is prohibitted from taking them away. I believe trying to overhaul the Constitution in any large part would endanger those liberties. The road to Hell is paved with good intentions.

But maybe I’m wrong about that–I try not to confuse my opinions about hypothetical events with facts, however strongly I may argue about them–and maybe the time is coming to either replace or at least recondition the Constitution. Even Ican think of some areas I wouldn’t mind changing–I don’t really want to “fix” the thing, but I can think of some spots I’d like to tinker with. So I throw the question to the membership–what parts of the Constitution should we change? Any of it, all of it, none of it–for the purposes of this thread, let’s assume the whole thing is open for suggestions. We can ignore politics–assume that any recommended change has a chance of being adopted. All Dopers are welcome to stick their two cents in, regardless of nationality or age.

Some examples of what we can change (meant only as examples, not limits):

[ul]
[li]Government. Change to a parliamentary/prime ministerial system, with whatever modifications we like. (Eg. the House of Representatives elected nationally with proportional representation, HR elects prime minister, Senate remains in current form.) Impose term limits on Congress. Impose term limits on federal judiciary. Remove term limits on presidency. Campaign finance reform.[/li]
[li]Bill of Rights. Modify First Amendment to make it more/less restrictive on free speech, religion, etc. Modify Second Amendment to strengthen/weaken/remove right to bear arms. Modify Fourth through Eighth Amendments to make law enforcement and judicial process lean more in favor of police/suspects; expand/ban capital punishment. Modify Ninth and Tenth Amendments to strengthen/weaken federal/state/inividual powers.[/li]
[li]Other Matters. Permanently permit/ban abortion, flag burning, use of tobacco/drugs. Permanently permit/prohibit governmental discrimination against certain classes (eg. gay people). Establish any special class rights/disabilities. Try to get your particular political opinions enshrined as Constitutional law.[/li][/ul]

In other words, this is your chance to propose any changes to the supreme law of the United States that you find desirable. But…remember that you can’t suggest anythingaround here that someone won’t violently disagree with–you don’t have to defend your suggestions if you don’t want to, but somebody may very well wander in and attack them as poorly thought out/stupid/evil/a sign of the imminent collapse of the Republic.

(I apologize for the length of this OP–I can be verbose with the best (or worst) of them.)

So, Dopers, what say you?

2

I once had the appalling experience of agreeing with something Phyllis Schlafly wrote. Worse, I even agreed with the reasoning process which led to her conclusion, at least up to a point. She was writing in opposition to calls for a Constitutional Convention (which I gather is popular in some circles of the political right); and the reason she was opposed was because a Convention could come up with anything. Of course, we parted ways at this point–she was concerned that a C.C. would enshrine the equal rights amendment, gay marriage, or Official State Satanism in the Constitution; I would be more worried about a Human Life Amendment, or a Flag Burning Amendment, or a “Religious Liberty” Amendment. At the very least, I seriously doubt a modern day Constitutional Convention would produce a document as gloriously godless as our current Constitution.

Now, naturally, if you let me–in my capacity as Dictator for a Day–write up a new Constitution, I’m just sure I could come up with all sorts of improvements. But at this point I’d really rather not play the Big Constitutional Powerball Game with the entire thing. You might talk me into supporting a particular amendment–I’m quite fond of any number of the amendments which have been passed to the Constitution–but I’d really rather take it a little more slowly than just starting at square one. (This would probably all but rule out such interesting possibilities as switching to a parliamentary form of government, which it seems to me would have to entail a pretty radical re-write to work.) All in all, it seems like most of the amendments coming down the pike these days are fairly stupid; I really can’t think of any which have been seriously discussed in the past few years which I support, and there have been several which I strongly oppose.

3

I think the US Constitution should remain, simply because, as the old adage says, “If it ain’t broke, don’t fix it.” Can anyone truly argue that there is something so fundamentally wrong with it that it has to be scrapped? Even if one would prefer, as I do, a parliamentary system, such a sweeping change really ought to have the backing of a wide majority. I haven’t seen any real clamor for change to the governmental system.

I think the best advertisement for the US Constitution is that UK liberal commentators grudgingly admire it. UK liberals generally hate the US with a vengence.

4

I’m not disagreeing with you, ME and Duke…or you’re not disagreeing with me, one or the other. But quite a few people do disagree, so the question becomes what changes people would advocate assuming we were going to change it anyway.

MEBuckner said:

There is no cause so just that it won’t attract its share of pea-brained morons. The flipside of this is that there are few pea-brained morons who don’t manage to get a few things right in spite of themselves.

5

MEBuckner writes:

A popular misconception; anything that a national convention came up with would still be required to be be ratified by three-quarters of state legislatures, or state conventions called for that purposes, just as amendments passed by Congress must.

I will concede that a CC might (not necessarily would) have a larger proportions of nuts, yahoos, and watermelons elected to it than Congress would. OTOH, Congress is pretty good at ignoring the spirit, and sometimees the letter of the existing Constitution when passing legislation, so the question is really whether you’d rather have a convention rewrite the First Amendment, or suffer the Communications Decency Act (or merely have the next administration state that of course freedom of speech is to be respected, but that universities that allow mean-spirited newsgroups and e-mail to pass through their servers forfeit access to any federal funds).

MEBuckner goes on to write:

Nah, piece of pie. Taking into account that I don’t think that a parliamentary form of government is desirable, and that this is therefore an intellectual exercise, I propose the following amendment to this end:

**Section 1. The President shall be elected by and from the House of Representatives of the Congress of the United States of America, for a term of not more than two years.

Section 2. The House of Representatives may, at any time and for any cause, remove the President by majority vote; providing that the House of Representatives be dissolved, and new elections held within one hundred days, by that act.

Section 3. No executive officer, who is a member of the House of Representatives, shall require confirmation by the Senate before taking office; and, every person who is a member of the House of Representatives, and shall resign from that office, shall be deemed to have simultaneously resigned all other offices under this Constitution.**

Parliamentary goverment?

6

katsukami said:

Not to pick nits here, but don’t you have to have some sort of interim president between the removal and the new House taking office and electing a president? (Or, to put it another way, who has launch authority on the nukes during this time period?)

And…100 days seems kind of long. Somebody correct me if I’m wrong, but don’t the British have to hold elections withing six weeks or so of the disolution of Parliament? Granted that we have a bigger population and area, but surely we could do it in less than three months.

7

My philosophical position here is that while no people are above the law, the people as a whole necessarily are. I would like to see a weak constitution with frequent voting. This not being a popular position, I would have to settle for less from a Constitutional Convention.

Yes Duke, I do argue that the Constitution is structurally flawed.
Since others do not see “checks and balances” as a flaw, I don’t tend to make much headway.

There are advantages to a parlimentary government. I don’t find Akatsukami’s ammendment disagreable. How about the idea of having people vote for President and reserving a number of House seats for the winner to appoint? How manny seats should a President get to appoint?
I would think that there should be enough to give the Pres the muscle to enact his platform.

I also believe that in this situation the Vice Presidency could go back to being filled by the runner-up. He could be the front man for the main opposition.

Just a couple quick points:

My understanding is that the FF fully intended the Constitution to be eternal. The word “perpetual” is used in the Articles of Confederation. Since the Framers were illegaly dismissing the Articles it is understandable that they might be reluctant to include the term in the new constitution.
Any clarification of this point would be appreciated.

If you don’t mind me asking…why?

8

Personally, it wouldn’t break my heart to repeal the Second Amendment entirely.

9

Okay, why not shift to a parliamentary system, as suggested?

Well, we could have changes of government every month or so, a la Italy a few years back or France prior to 1958. Or we could have stringent party discipline except for the rare revolt in times of crisis, as England usually does, where no Congressman is permitted to take a stand unless his party agrees with it. Or we could have one-party government, where the President sets up a cabinet of the leaders of major House blocs and buys off their followers with appropriate subcabinet jobs and pork, and his party just keeps going and going and…

Any of the above sound like fun?

That’s why not.

10

Refresh my memory.
Did either of these periods follow a pattern of devolution from a firm 2 party tradition?

What’s wrong with party loyalty? Do the parties stand for nothing?
If a legislator doesn’t agree with the party ideology then they are in the wrong party. On matters outside the declared platform of a party a member should vote as they think best, I think we would agree. A balance needs to be struck between “discipline” and “loyalty”.

Do you think a 1 party system is the likely result of parlimentarianization?
Our parties would somehow merge?

[sarcasm]
And America is somehow pork-free and not a legocracy, I guess.
[/sarcasm]

All in all, Polycarp, the examples of how not to run a Parliament are beneficial.
We can learn from their mistakes.

11

So far as I know, none of the unstable parliamentary countries suffered a devolution from a two-party system, though the French Third Republic (1871-1940) did have a four-party structure in which coalitions that were intended to (and usually did) hold together stably were the rule.

Italy prior to the last few years was, IIRC, plagued by coalition governments where the coalition would disintegrate over an issue important to one of the smaller parties in it that the other parties would not support. Fourth Republic France (1946-58) was much the same.

Britain and most Commonwealth nations have found their way past this problem, but at the cost of stringent party discipline, where the party endorsement is a major factor in electability, and the requirement is that you as an M.P. vote as instructed by the party whip on all issues where the party has a strong interest. There is a limited amount of flexibility – where your vote will not affect the outcome and you need to respond to constituent needs, you can be “released from the whip” on that issue. And some minor issues are left open for “conscience” votes. But at bottom line, the M.P. must toe the Labor or Tory line on virtually all major issues, and is not free to vote his conscience without committing political suicide. The occasions significant numbers of party members have “jumped ship” are few but memorable, and involve crises. The Tory withdrawal from the national government under Lloyd George in 1922 almost counts here; otherwise it would be the 1931 Labor revolt against their own P.M. McDonald over his throwing out most of the party economic platform to deal with the Depression, and the 1940 revolt against Neville Chamberlain that propelled Winston Churchill into No. 10. Most of the Commonwealth dominions show similar stories (notably, Australia facing invasion by the Japanese in 1942 insisted on this partisan status, when most parliamentary countries would have forged a coalition to get as much talent as possible into government.)

Party loyalty is often a good idea. Enforced party discipline that brooks no disgreement, on penalty of losing your endorsement and therefore your seat, is another question. I agree with you that there is a difference; Britain’s experience shows that a viable two-party system in a parliamentary state appears to require more discipline than our present congressional parties exercise. And I like the idea of the maverick, even when I don’t agree with him – his ideas make other people think, and sometimes later become law.

And a one-party system, even democratically chosen, always seems to me to be less than duly representative.

What would happen to our two current parties if we went into a Parliamentary structure? Your guess is as good as mine. I can see a strong centrist government, composed of the moderates now part of each party and maintaining perennial control, with a large conservative opposition and a smaller liberal one, neither large enough to wrest power from the centrists.

12

2sense wrote:

Now that sounds like it would make a great patriot/sovereign-citizen/tax-protestor argument:

“The Articles of Confederation were illegally dismissed when the Constitution was ratified, therefore the Constitution is invalid, therefore all the laws passed under the Constitution are invalid, therefore the income tax is invalid, therefore I don’t have to pay income tax!”

I bet it’ll be the topic of Irwin Schiff’s next book…

13

Interesting post Polycarp.
I find I would prefer the situation you describe in the last paragraph to our current 1. I wouldn’t describe it as a 1 party system since others exist. A government by a majority of moderates doesn’t seem all that bad.

Party discipline is ticklish.
It sounds like we are not that far apart on where to draw the line.
Having some members elected and some appointed would allow the elected representatives more leeway to express their opinions since they hold their seat by a direct mandate. More than the appointees anyway. Realistically they would still need at least a chance of reelection without direct party support to maintain their independance.

14

I’ve said for years that if a constitutional convention was ever assembled, I’d watch from the comfort of ANOTHER COUNTRY. If things went well, I could come back. If they went poorly, I might not be allowed to leave.

I’d be happy with the current Constitution, if it was actually enforced. I’d be ecstatic with only a couple of changes:
Eliminate popular election of Senators and return to the (original) system in which Senators were servants of their respective states, and were beholden to the state governments what appointed them (in most cases), rather than co-conspirators with the House is gathering ever more power in D.C. This would do more to shatter Washington’s stranglehold on us than anything else I can think of.
Go back to the original system–the first-place candidate gets to be President, the second-place CHALLENGER gets to be Vice President. Yes, that’s right, Algore and Shrub get to work together! Heh heh.

15

Ahhh … what memories the OP brings back. At university I had a class in Constitutional Design, the purpose of which was to write a constitution. IT’s been a few years, and I can’t recall all the details, but I do remember the following. My favortite “innovation” was a three part executive branch, with one one member dealing in foreign affairs, one member in domestic affairs, and the third being the official head of state. Also national service was required before the voting franchise was bestowed.

16

MysterEcks writes:

Yep. That was a purely arbitrary number, and, even if I were defending parliamentary government as an intellectual exercise, I won’t try to defend it. My proposed amendment wasn’t intended to be objectionable, either, except insofar as I think a parliamentary system per se objectionable; it was just an attempt to see in how few words I could radically alter the form of the U.S, government.

In fact, I do not think that parliamentary government is a good idea, basically for the reasons that Polycarp has so ably laid out already.

As far as minor (in verbiage, not in effect) changes go, how about repealing the “Elastic Clause” of Article I, Section 18 (the one that gives the Congress the power to enact all legislation necessary to carry out its explicitly delegated powers, without said legislation necessarily being related to them)?

17

Hmmm. I’ll answer the point by trying to answer the question. A short answer to the question: UK liberal commentators generally like the idea of “checks and balances.” I know this isn’t a positive point from your point of view, but from a UK perspective the system is different.

Keep in mind that I’ve only lived in the UK for six years and studied its history and constitution for twelve, so I may be fuzzy on some points.

The US Constitution basically assigns power to three governmental branches–Legislative, Executive and Judicial. While those branches exist in the unwritten UK constitution, ultimate power rests in only one of them–the Legislative branch (or Parliament). Parliament chooses the Prime Minister from its own membership, who then forms a Cabinet from various members of Parliament (the Cabinet–of which the PM is a part–is the Executive branch). The highest Judicial authority in the UK is the the Law Lords–a part of the House of Lords, which, again is part of the Parliament. Hence Parliament ultimately controls all three branches–a situation which many commentators refer to as “the tyranny of Parliament.”

So far, so good. But there are some complications. The first is that the system of government and shadow whips ensures that political parties hold a lot more power over MPs’ voting patterns in Parliament than do their US counterparts. The second is Tony Blair’s quiet move towards what many (liberal and conservative) commentators call a “presidential” style of government: meaning, in practice, that day-to-day business is conducted through Cabinet meetings and press conferences, and Parliament is often bypassed on policy decisions. The third is that Blair’s Labour Party currently hold a huge majority (of 179 seats) in Parliament. The result is that the Labour party leadership (Tony Blair by name) can theoretically run the government and draft and pass legislation at will, and other parties, or even Labour members opposed to the legislation, can do little about it. Imagine Clinton with this kind of power, and you can see why some political commentators are calling for some form of “checks and balances.”

For now, the House of Lords (packed with Tory hereditary and life peers) serves as a nominal check to Blair and the House of Commons. However, the Commons can eventually pass legislation even if the Lord rejects it (but Commons has to pass the legislation on three separate occasions, which tends to take time). A lot of (small-c) conservatives think a good check on the Commons would be to give the Lords more teeth, but that of course is anethema to liberals. Hence their admiration of the US Constitution as a document–“checks and balances” are ready-coded, as it were.

Not that UK liberals admire the USA any more for it. The general view–held most stridently by columnists like Hugo Young and Polly Toynbee of The Guardian–about the US is “great constitution, shame about the people who apply it.”

Hope this helps answer your question.

18

Parliamentary system- gah.
Might I kindly point out that for those who feel a distaste with the current Congressional election/re-election system, moving to such a Parliamentary system as stated by Akatsukami above would mean that we would be in a constant state of campaign commericals and election slogans and fund-raising not even imagined by current standards? After all, currently Representatives have two years to campaign for office; in this parliamentary system, any candidate has to be up and ready for running in 100 days. Given the power of name recognition and advertising, all members of the House (and all prospective opponents, including opponents within the primaries) would be constantly raising money and placing ads to keep their names in play on the off chance that the Prime Minister fails a vote of confidence and suddenly there will be new elections. I fail to see how this is, in any way, a better system.

19

Every once in awhile my brain slips into neutral unexpectedly–I should have provided a link so those who don’t have a copy handy could read it. Here it is: United States Constitution. The copy on this site seems to be heavily annotated–I haven’t read them, so I make no guarantees as to whether the annotations have any resemblance to reality or not.

2sence–you’re welcome. I’ll have to see if I can come up with a citation for the 20-year thing–it’s been quite awhile (I was in high school) since I came across that.

20

Thanks for the reply, Duke.

Excuse me, I have been accused of being stolid. ( Actually, I have been accused of worse and pled down to stolid. ) I’m not entirely sure that I understand the British liberal’s reasons for admiring the Constitution. Do they look at the US government and think it compares favorably with their own? The main objection seems to be a concern about the power of the dominant party. I presume that these liberals favor public medicine; how do they feel about the failure of Clinton’s health care reform?

Ah… what a sweet picture. Thanks for the image.
Limiting the efficiency of the government favors the vested interests. Their attitude tends to be that change is not desirable because things are fine. I identify this thinking with a conservative viewpoint.

Thanks for the info. After a dozen years studying the Brits, maybe you could answer this question.
In America it is widely believed that the situation that you describe ( the power gathered in the hands of the Blair government ) would necessarily corrupt it’s holders and inevitably lead to totalitarianism.
Why has this not happened to the UK?