Useful Amendments

“In regard to the Constitution of the United States, it is confessedly a new experiment in the history of nations. Its framers were not bold or rash enough to believe, or to pronounce, it to be perfect.” Justice Joseph Story, A Familiar Exposition of The Constitution of the United States

The 55 delegates who attended the Constitutional Convention of 1787 were remarkable men. While Justice Story was correct when he stated that the Constitution was not perfect, it was as near to perfection as could have been achieved at the time. We should be thankful that these delegates gave us such a document.

Still, the demand for amendments began with the ratifying conventions. The states proposed 124 amendments in the first Congress. Madison whittled these down, sending a list to the floor of the House, which approved 17. The Senate narrowed the number to fifteen. At this point, some of the amendments were combined, and twelve were sent to the states for ratification. This took place less than five months after Washington’s inauguration.

The first amendment, which dealt with representation in the House of Representatives, was never approved. It would have modified Article I Section 2 Clause 3. The second amendment, which was not approved for nearly 203 years, dealt with the compensation of congressmen. It is now the 27th amendment to the Constitution. The remaining 10 amendments were ratified fairly quickly, and are known collectively as the Bill of Rights.

Not all of the amendments to the Constitution represent positive changes. The 16th Amendment, which gave us the income tax, is an easy target, as is the 18th Amendment, which gave us Prohibition. And although the 26th Amendment allowed me to vote in my first presidential election just days after my 20th birthday, I think it is a very bad amendment. Frontal lobe development is not complete until the age of 21 or 22, and I think we should demand frontal lobe development of our voting citizens, even if we cannot rightly expect it from our elected representatives.

Undoubtedly, the worst amendment is the 17th, which gave us the popular election of senators. Originally, the House was to represent the people, and the Senate was to represent the states. The direct election of senators removed the representation the states originally enjoyed. That amendment should be repealed immediately. Unfortunately, what should happen and what will happen are two different things.

In his book The Liberty Amendments, Mark Levin proposed 11 amendments to the Constitution that would help restore something of the framers’ original intents. His amendments included repeal of the 17th, plus ways of dealing with spendthrift Congresses and an out-of-control judiciary. One of his amendments, if in effect, would have prevented the recent massive continuing resolution that will eventually help to bankrupt the United States. One of the articles in his amendment on taxation reads as follows: “The deadline for filing federal income tax returns shall be the day before the date set for elections to federal office.” That is my favorite: file your taxes on Monday, vote the rascals out of office on Tuesday.

Unfortunately, these amendments are pipe dreams. I cannot see Congress voting voluntarily to limit its ability to tax and spend, and the Convention of States method of amending the Constitution is proving to be painfully slow.

But there are several provisions that, once upon a time, were parts of a Constitution that was the governing document for a portion of what is now the United States, that could be used quite conveniently to restore some balance to the Constitution. The fact that they were once the law of the land leads me to believe that they would have a better chance of being enacted today than amendments that have never been a part of the Constitution. These provisions can be found in the Constitution of the Confederate States of America.

The Confederate States of America was under a great deal of pressure at its birth. There was a government to form and a war to prosecute, so the Confederate government borrowed a considerable amount from the United States Constitution. Whole articles are lifted directly from the United States Constitution. The changes, such as they are, tend to emphasize the importance of States’ Rights to the Southerners. Consider, for example, the preamble, where the differences between the two documents are in bold:

“We, the people of the Confederate states, each state acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our posterity – invoking the favor and guidance of Almighty God – do ordain and establish this Constitution for the Confederate States of America.”

There were, of course, changes. That first proposed amendment to the US Constitution, which would have modified Article I Section 2 Clause 3, was written into the CSA Constitution. The Confederates also tended to be a bit more direct in their language. The three-fifths compromise, in the original Constitution “. . . and excluding Indians not taxed, three-fifths of all other persons” became “. . . and excluding Indians not taxed, three-fifths of all slaves”. Eight of the ten amendments known as the Bill of Rights were added to Article I Section 9 Clauses 12 through 19. Amendments IX and X, the States’ Rights Amendments, were inserted later in the body of the text, specifically in Article VI. Amendments XI and XII were also inserted later in the text of the document.

Here are the highlights from the Confederate Constitution that should be considered for the United States Constitution.

Article I Section 7 Clause 2 deals with how a bill becomes law, and is almost identical to the US Constitution until we reach the end. “The President may approve any appropriation and disapprove any other appropriation in the same bill. In such a case he shall, in signing the bill designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in the case of other bills disapproved by the President.” In other words, the Confederate president had the line-item veto.

Article I Section 9 Clause 9 states that any money appropriated (with some exceptions) must be approved by a two-thirds vote of each house. Article I Section 9 Clause 10 prohibits paying for cost overruns: “. . . and Congress shall grant no extra compensation to any public contractor, officer, agent, or servant, after such contract shall have been made or such service rendered.”

My favorite – and the one change I would pick if I had a choice of only one – is found in Article I Section 9 Clause 20. It reads, in total, “Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.” Imagine that: no more massive thousand-pages-long bills with multiple subjects. If you want to build a bridge in New York named for a certain US Senator, then it must be introduced as a separate bill, not rolled into a monstrous bill that deals with the military, the interstate highway system, bailouts for pension systems, and the like. This would effectively end the earmark practice.

If I had the power, I would add a restriction on page length for new laws. Imagine if each bill before Congress clearly expressed the purpose of the bill in the title, dealt with only one issue, and had a maximum length of, say, four pages, single-spaced, in 12-point type. It might provide the opportunity for our elected representatives to do the job they were elected to do: to read and debate the details of legislation before them.

Many of the other changes seem at this remove to be relatively unimportant. The question of protective tariffs, which nearly disunited the country in the 1820s and 1830s, is settled in the Confederate Constitution: they are expressly prohibited. There was also a prohibition against public expenditures for “internal improvements”, another pre-war burning issue. Article II, which establishes the executive department, restricts the president to one term of six years. This may or may not be a good idea. On the plus side, the president would not be distracted by continually positioning himself for re-election. On the minus side, the president would be a lame duck the moment he took the oath of office.

Article IV Section 3 Clause 1 of the Confederate Constitution modified the US procedure for adding states to the Confederacy. In order for a new state to join the Confederacy, there had to be approval by two-thirds of the whole House of Representatives, plus a two-thirds approval by the Senate, voting by states. If this provision were in place today, we would not be worried about the addition of the District of Columbia or Puerto Rico as new states.

Finally, amendments to the Confederate Constitution could not be initiated by the Congress. It was left entirely to the states to initiate amendments by conventions. The Article V threshold requirement was minimal: “Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made . . .” At the time the Confederate Constitution was adopted, there were only seven states in the confederation. A request by only 43% of the nation would then compel the government to call for a convention. And the number three was fixed in the Confederate Constitution. The Confederate States ultimately contained 11 states as members: at that point, a mere 27% of the states could trigger a constitutional convention.

The wording of this text also seems to provide protection against a runaway convention. The United States Constitution, Article V, contains the language “. . . shall call a Convention for proposing amendments”. Compare this with the Confederate Constitution, which restricts the focus of the convention: “. . . to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made . . .” (emphasis added).

I join a long line of people who propose changes to our governing document. We all have different ideas as to the root cause of our problems, and how to correct them. My analysis recommends the following three top priorities: (1) Repeal the 17th Amendment; (2) Adopt Article I Section 9 Clause 20 of the Confederate Constitution: “Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title”; and (3) Adopt a combination of Article I Section 9 Clauses 9 and 10 of the Confederate Constitution, which requires a two-thirds vote of each branch of the legislature for certain appropriations and ends the practice of paying for cost overruns.

If you want to stop the flooding, try turning off the spigot.