Friday, October 10, 2008
Revising the Constitution after a “Reset”
I received this topic suggestion today, and because I think it is timely with other discussions I’ve read today, I’m going to tackle it (but not perhaps in the way the author intended):
Thought about your request for topics to do a post on prior to your retirement and a couple of ideas came to mind. Imagine that the “reset” button has been pushed, there has been a war, and America is rebuilding. Discussion arises that maybe the Constitutional amendments were a contributing factor to the misery the country suffered prior to the war. You are asked to draft a new Constitution. What, if any, amendments would you rewrite?
If the question had been framed a bit differently I could answer the question about how I might revise the Constitution, revise the Amendment process, or revise or eliminate some of the Amendments. Let me tackle some of that first.
- Overturn the 16th and 17th Amendments. They have been and are disasters of Biblical proportion. Simply overturning them might be enough, but I would choose to determine how Senators are chosen by their legislatures (detailing the requirements). As for tax revenue of the Federal government, I would make sure that they had NO method of tax collection. They should be begging for money from the states, for the few things that are handled at the Federal level. Everything else comes out of the state budgets to support themselves. I would also reinforce the idea that the Federal budget is divided by 50 (with 50 being the number of states) and each state gets an EQUAL bill. If Rhode Island or Wyoming can’t afford it, then WE can’t afford it. Those small things would restore a significant portion of Original Intent to put us back on track.
- Article I, Section 8 should have been written better. The opening paragraph contains the phrase, to pay the Debts and provide for the common Defense and general Welfare of the United States. Far too many people have taken “general Welfare” to mean universal welfare, making it read as something like: anything that could even remotely be considered to benefit a few people. I would revise that paragraph to read:
The Congress shall have Power To collect revenue from the states for the purposes of paying the Debts and provide for the common Defense, and for those things specifically listed below and to fund the other branches of the Federal government (Executive and Judicial). Congress may not legislate any other matter, nor may they pay for it, without Constitutional Amendment which specifically extends that which Congress is specifically authorized to do, but all Duties, Imposts and Excises shall be uniform throughout the United States, and apportioned equally to all the states;
I’d take away their ability to “Lay” taxes or collect any revenue that wasn’t first in the hands of the states. Second, I would make it impossible for them to legislate on any matter what wasn’t specifically listed. That WAS the Original Intent, but We, The People didn’t hold them to that.
Mr. Jefferson (and Mr. Madison) were quite emphatic about how the general welfare “clause” was being abused:
The construction applied… to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to [the General Government’s] power by the Constitution… Words meant by the instrument to be subsidiary only to the execution of limited powers ought not to be construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument.
--Thomas Jefferson, 1798To lay taxes to provide for the general welfare of the United States, that is to say, “to lay taxes for the purpose of providing for the general welfare.” For the laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union.
--Thomas Jefferson: Opinion on National Bank, 1791Aided by a little sophistry on the words “general welfare,” [the federal branch claim] a right to do not only the acts to effect that which are specifically enumerated and permitted, but whatsoever they shall think or pretend will be for the general welfare.
--Thomas Jefferson, 1825They are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please… Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers and those without which, as means, these powers could not be carried into effect.
--Thomas Jefferson, 1791 - I’d revise the Second Amendment to read:
The right of the people to keep and bear Arms for defense of the nation and their persons, property, and communities, shall not be infringed, except to deny arms to felons, the insane, and other enemies of the nation, and to restrict weapons of mass destruction to the government. The states may determine the methods by which individuals are identified as felons or insane and the methods of restriction of sale, and the Congress determines how someone is classified as an enemy of the nation, and the method by which that information is made available to the states.
Again, I think that’s what they meant, but it needs to be updated to reflect our use of the language.
- Finally, I think the Amendment process needs to be easier. Not easier to pass (I would not change that aspect), but I would change the way that an Amendment could be put up for a vote. It should not require consent by Congress or a Constitutional Convention. It should require a certain number of signatures from a majority of the states only (say 100,000 signatures from 3/4 of the states). Yes, we’d have more a lot more Amendments, but I don’t see that as a bad thing. We might have some temporary ones, that were more faddish than reasonable, but we also have the ability to overturn them just as easily. The biggest problem with our nation today is apathy, and that is because The People can’t seem to get their government to do as they wish. Imagine if we’d had a easier time passing Amendments when we were debating the illegal immigration problem. The People could have proposed Amendments to fix the problem the way they wanted it fixed. The outcome may not have been different, but that’s not the point. The point is to put it up for a vote by the states and allow The People to vote for representatives in their state that could make the general government do as they ask.
* * *
So I answered what I think was the intent of the topic request. I do not want to gloss over the context of the question, because context is everything.
If our nation was to go to war and engage is something we like to call a “reset” I think the last thing we’d be discussing is how to shore up our Constitution for USA II. It’s a preposterous idea and just how preposterous is important. Our Civil War resolved a question, which was if a state could leave the Union. The answer was a resounding “NO.” That is not to say that we couldn’t provide a mechanism (through Constitutional Amendment) where that could happen, but the Southern states didn’t choose the voting booth as their method of asking the question.
I cannot imagine a situation reoccurring of that magnitude, or that fundamental a difference of opinion, that would be decided by war, not the voting booth.
So what WOULD be the causes for a “reset”?
The dissatisfaction with the outcome of an election? What would the war determine, in that case? That the outcome of a legal election was someone not liked enough by the minority of voters that they’d start shooting at their neighbors?
That’s a breakdown of the Constitution, in the extreme, and a decision among a minority of people to not abide by the outcome of our democratic process. I don’t care who the winner was, if a minority of people started shooting at others because they’re sore losers, I’d start shooting at THEM, even if that made my bedfellows doctrinaire communists.
Last week the Congress essentially set aside the entirety of the Constitution and turned us into socialists. Not a single shot was fired, and that’s a good thing. What SHOULD happen is that every Senator and Representative who voted “yes” should be booted from office, by The People of their respective states. But that won’t happen, because the majority of people needed to do such a thing don’t care, agree with the extra-Constitutional bailout bill, or don’t seem to know how to vote in elections to get rid of the scoundrels.
I can’t think of anything more dastardly and extra-Constitutional than what they did last week in the passage of that bailout bill. At least when they passed Social Security, they did it with a Constitutional Amendment. I think it was stupid, but at least they did it the right way.
In other words, I cannot think of a scenario in which The People would go to war with one another that would not be for nefarious and genocidal purposes, so any discussion of us remaining a nation with a Constitution would be moot. We’d be a nation of oppressed people, ruled by tyrants. There is no other outcome, so it is a situation that is to be avoided at all costs.
The People who remain will be the same (unless we opened extermination camps), so there would be nothing to be gained by having a “reset.” It is the opinions of The People we must change, not their life/death status. The only outcome of a “reset” is death, destruction, and tyranny… and no matter who wins, it would not be a place any of us would want to live.
- AIDS Cure Found in Dolphin Livers (11/25/2008)
- Apologies (11/24/2008)
- Conservative Principle (11/06/2008)
- Screwed Long Ago (11/02/2008)
- Doing It The Right Way (11/01/2008)
Posted 10/10/2008 3:21 PM CDT • Print Vers.
Comments
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Good revisions.
What do you think about making it possible, but difficult, to remove Supreme Court justices?
Weetabix | 10/11/2008 09:57 AM CDT -
Drat, Weet. You always beat me to my own questions.
Though the essence of mine was to ask if Mrs. DT thought the Constitution contained sufficient checks on the Judiciary and, if not, what changes she would make.
I’m tiring of “reset” discussions. First, that it’s a euphemism for revolution seems to elude the conversation; so thank you, Mrs. DuToit, for addressing the utter disaster it would bring. Second, we already have mechanisms in place to rectify contemporary political travesties. What we lack are representatives with the guts (or brains) to activate them.
Vote the cowards and dummies out.
OT, I’m so pleased and relieved to hear that you’re recovering. You and Kim are frequently in my prayers (sweet irony).
Dr. Feelgood | 10/11/2008 11:18 AM CDT -
Supreme Court justices can be impeached. Samuel Chase in 1804.
BobbyK | 10/11/2008 12:07 PM CDT -
I think the fundamental problem (besides the obvious one of all societies to crumble eventually through malaise) is that we’re too big. I think the mechanisms the Founders gave us to be governed locally have become too far removed. We feel powerless to make a difference, so we don’t even try most of the time.
Who says that 9 guys in robes (or however many are sitting on the bench at any given time) should be making rules? That’s why I think the Amendment process needs to be something The People can put forth more easily. So if the Court does make a decision we don’t agree with, WE can change it, and overrule THEM. We can do that now, and with every district and circuit court decision, but we don’t, because we’re overwhelmed by the process. If we COULD more easily overrule them, then how the Court is selected and who sits on the bench wouldn’t matter so much.
Mrs. du Toit | 10/11/2008 12:54 PM CDT -
I should begin by saying that I am a long time fan of this site. I especially liked Something to Live and Die For which I replied to on my blog with my post Culture and Freedom. However I have to corect Mrs. du Toit, none of the new deal was made constitutional by amendment. Instead the court was pressured into accepting the president’s idea of constitutionality.
Steph Houghton | 10/15/2008 11:50 AM CDT -
You’re right, Steve. Thank you for the correction.
Mrs. du Toit | 10/15/2008 12:02 PM CDT
