As I see it, we have three major problems associated with the amendment and ratification process:
1) It was built on a flaw: it was meant to preserve the privileged status of the rich landowners, who held most legislative offices, especially in the U.S. Senate, by making it difficult to amend "their" constitution, thus preventing the uneducated masses from having much of a say in the process.
2) The process basically precludes the People. Rather, it depends on office-holders at the state and federal level to carry out the procedures. The only part the voter might play is in conventions, either that called by states to pass ratification or in a national constitutional convention called by Congress to propose amendments. The problem is that, in both cases, the state legislatures or the Congress could pass laws to set the qualifications for delegates, the agenda for the conventions, and the manner of election of delegates. By the way, we have not seen a constitutional convention called by Congress since 1787
3) Until the processes of amendment and ratification are themselves reformed, we shall be waiting a very long time for changes in our system that are desperately needed right now! By the way, one of the main reasons the 1787 Convention was called is because the Articles of Confederation, then in effect, required the unanimous consent of all 13 states for the national government to take action; a system that proved to be unworkable. George Washington complained about it constantly because his requests for troop supplies often went unanswered. The newly written Constitution sought to address this problem with a central government kept in line with checks and balances.
I have addressed this issue of amendments before on this BLOG, but not quite in this way, for now I am placing much more emphasis on the need to amend the very way in which the Constitution is amended.
First of all, it is my earnest contention that in as many ways as possible, there must be built into our system of governing a way to involve ordinary citizens. That is, representative democracy is important to maintain in some respects, but at this point in our history there are more citizens aware of what our country needs, aware of how to make government work, and aware of how the system does work that they need to be directly involved in the planning, the day-to-day activity and in the checking that must be done to make sure that government is living up to its potential. So, I have advocated advisory councils to departments of the Executive, in legislative offices and even in judicial offices. I have advocated auditors and evaluators in offices of the Inspector General. Now, I urge citizen involvement in the processes of amending and ratifying our Constitution's amendments. Here are the main ingredients:
1) The Constitution of the United States belongs to the people of the United States, or so the Preamble implies:
"We the people of these United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America."
I'm not sure that could be any plainer: the ratification of the Constitution established the People as the ultimate creator of this foundational document. Unfortunately, the Constitution failed to follow through in some respects on the thrust of that statement. The ordinary citizen was excluded from the process whenever it seemed prudent to the leaders (the elite of their day) to protect their privacy and their property. No need to say more as my BLOG for March 16, 2014 says it quite plainly.
But here's the rub. The process for amending the Constitution omits any part for the People to play. Elected officials have all the say. To be more specific: either three-fourths of the state legislators petition Congress, or the Congress itself votes to present amendments. Presumably the only role the people play is to elect those officials in the first place. In today's "money controls everything" environment, that doesn't buy a whole lot except a bunch of millionaires intent on keeping the status quo in their favor.
2) We must find a way to insert the people back into the amendment process. I have proposed in the past, and re-iterate now, that the use of the petition process is a natural place to begin. The People are used to petitioning their government (or their representatives) on any number of matters. Why not on the matter of amending their Constitution?
How would that work? Probably much like it works now. Individuals, groups and organizations would have to start the ball rolling by starting a petition drive (perhaps online or from door-to-door), getting propositions onto ballots, getting legislatures to pass resolutions of support, getting amendments into the spotlight and into a process defined by the Constitution itself.
3) Here's a thought: let's begin by starting a petition on MoveOn.org's sister website for starting petitions: www.petitions.MoveOn.org.
It might go something like this:
"Whereas the Constitution of the USA says that it is 'We the People' who created that document, and
Whereas, the people now have no say in the amendment process of our own creation, and
Whereas, citizens have the right to petition their government to express their grievances,
Resolved, that Article V of the Constitution must be amended to reflect the direct participation of the People in the amendment process, thereby checking and balancing the power of the Congress to be the only arbiter of how and when amendments shall be proposed and ratified."
4) Here's one thought on how a petition process started by the People might result in an amendment to the Constitution without a Convention.
Let's say that a petition must focus on one amendment at a time, and that all petitions must be in conformity on the issue being promulgated, and on the wording of the amendment being proposed. Therefore, a process for writing such an amendment must be worked out in advance of the circulation of the petitions. Secondly, those petitions should be presented to state legislatures for their support expressed in a legislative resolution.
Once 1/2 of the state legislatures have passed a resolution of support, the actual passage of the amendment can commence. In those states where the amendment is rejected by the legislature, the sponsors of the original petition should have the ability within a certain time frame, to collect enough additional signatures to equal 1/3rd of the voters of that state. In which case, the state legislature's decision will be over-ridden, and that state will certify it's concurrence with the petition. Once 1/2 of the states concur in the amendment, it must be placed on the electoral ballots in all fifty states, so that voters may vote to pass or reject the amendment just as they do in regard to a proposition or referendum.
The results of this vote in all fifty states shall determine the fate of the amendment: if it passes in 3/5's of the states (30), it shall be considered to be ratified and shall become part of our Constitution within 30 days from the election, unless Congress shall pass a recall motion by a 2/3's majority of both Houses within that time frame, by which the amendment shall be considered invalid.
5) That's my outline of a People's way with checks and balances built in. How might the amendment regarding amendments be written, you ask. Well, I'm no lawyer, and not a legislator or office-holder, so I would love to hear from readers of this BLOG who have a comment or another idea. Contact me at email@example.com and share your thoughts. Thanks.
Here's an amateurish attempt to put my outline into constitutional language, with apologies for it.
"Section 1. A Citizen petition containing the names of at least 25% of the total number of registered voters in each state, may call for an amendment to this constitution but shall be limited to one amendment per petition. Having certified that the requisite number of signers are qualified to vote, with accurate names and addresses, the state Board of Elections shall, within 45 days of receipt of said petition, deliver the petition to the Leaders of the state legislature who shall, within 30 days, introduce a resolution to either support or reject the Peoples' petition. Should the State Legislature initially pass the Resolution of Support, the petition and Amendment shall be transmitted to the Congress within 30 days from the vote.
Section 2. Should the Legislature reject the petition and its amendment, the Petition sponsors shall have 60 days in which to gather an additional number of signatures equal to a cumulative total of 1/3 of the voters of the state. Such petition shall be examined by the State Board of Elections to determine validity, and be transmitted within 45 days to the Congress of the United States with certification of validity.
Section 3. Whenever the Congress receives notification from 30 states of their support for a Peoples' amendment, both Houses if Congress must vote within 30 days to accept or reject the particular amendment being petitioned and, if accepted, the amendment shall be placed on the ballot as an amendment to be ratified in all 50 states.
Section 4. The amendment shall be considered ratified if the voters of 30 of the 50 states pass the ballot proposition. It shall become part of the Constitution within 45 days from the conclusion of the vote tabulation in the last of the 30 states who have voted to ratify the Peoples' amendment.