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Tuesday, October 13, 2015

One Way to Change the System

We are stymied. It’s not a pretty picture, this blockage. One large root of our lack of change and reform lies embedded in our Constitution. We, the People, are fundamentally prevented from initiating meaningful reform in any area that involves changing the Constitution. The American gentry who were essential in the formation of our unique democratic Republic, made very sure of one thing. They made sure that this country would reserve certain powers to the “better sort” of people and would, at the same time, restrict those of lesser light from gaining a foothold on power. Just how did they arrange such barriers to prevent drastic change unfavorable to their class? Here are five very telling provisions written in to the Constitution to protect the “ruling class.”

1) They restricted voting and eligibility for public office to white men who owned property, and excluded Native Americans, slaves and women from meaningful participation in the new government

2) Because the Senate was seen as their key to maintaining control of the excesses of the people’s representatives, the Founders made sure that members of the Senate were elected not by the people but by the state legislatures which were mainly composed of gentleman farmers and successful merchants . Why else would the founders strengthen every Senator’s hand by making his term 6 years as opposed to a term of just two years for a Representative?

3) The President and Vice-President were to be elected by an unusual process involving intermediaries known as Electors. Each state legislature was given the responsibility of determining the method by which these Electors would be chosen. Of the states that participated, the clear majority chose the legislature to appoint (at least some of) the Electors who ended up being either of a similar class and background, or beholden to people bound by a common bond and loyalty. There is a helpful chart on the methods used to choose Electors for the very first election of George Washington to the Presidency (see

4) Not only was the Senate intended to hold popular movements and unruly legislation in check, it was provided with powers that were distinct from those given to the House of Representatives. It is the Senate that makes the final decision on the guilt of a President who has been impeached by the House. It is the Senate that has the power to advise the President and either consent or not consent to Treaties, and to the appointment of Ambassadors, Supreme Court Justices, and other government officials. With presidential Electors and Senators representing a “ruling class” so to speak, there was just one final mechanism of control needed.

5) The leaders found just such a mechanism in the very process by which the Constitution can be amended and ratified. With ‘checks and balances’ built in at other points, one would not expect provisions specifically meant to protect an elite group but that is most evident in the very processes by which the founders chose to allow changes to the Constitution. For it is the amendment and ratification process, placed in the hands of the national and state legislatures, that essentially blocks participation by the ordinary citizen. The enormity of the numbers required to initiate and ratify amendments indicates the lengths to which the elitists went to assure that changes to ‘their’ founding document would not be hastily or easily made. As it has worked out, there have been just 27 amendments over the last 225 years, and the second mechanism of a constitutional convention has never been used! The first Ten – known as the Bill of Rights – were promised by the Founders in order to get the original Constitution passed and ratified. The Bill of Rights was quickly ratified by December 15, 1791. The 27th amendment took over a century and a half to ratify (sent to the states for ratification September 25, 1789 and finally ratified by the last required state on May 7, 1992)! It is a cumbersome process, and just to remind you, it is here recalled to mind:

Article V – “The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution; or, on the Application of the Legislatures of two-thirds of the several states, shall call a convention for proposing Amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution when ratified by the legislatures of three-fourths of the several states, or by Convention in three-fourths thereof, as the one or the other mode of Ratification may be proposed by the Congress.”

For those of you who still maintain an idealistic view of our Founding Fathers and their motivations, let me provide some background from a book titled: “The Radicalism of the American Revolution” by Gordon S. Wood. He begins in an unfamiliar place – that of inequalities that existed everywhere in 18th century life. Although eighteenth-century Americans were “without nobility, or orders of gentry, there was evidence everywhere in the colonies of “how necessarily some differences of rank, some inequality must and ought to grow up in every society.” Thus, there was one great division that cut through colonial society to an extent that overwhelmed all other divisions “even the one between free and enslaved...” It was that between extraordinary and ordinary people, between gentlemen and commoners, between patricians and plebeians: “that some were gentlemen and most were not; some were polished and literate but most were rude and unlettered.” The many were often called “The Mob”, “The Vulgar” or “The Herd; the elite few were referred to as the honorable, the excellent, the noble or royal. And lest you think that this attitude escaped our Founding Fathers, let me list some thoughts from them that have not been widely quoted.

George Washington called ordinary farmers “the grazing multitude.” Colonel Landon Carter, head of one of Virginia’s distinguished families, “saw little to respect among ordinary people and thought that some of them were ‘but idiots’.” John Adams early in his career referred to ordinary people as the “common Herd of Mankind.” “Common persons, he said, “have no idea of Learning, Eloquence, and Genius,” and their “vulgar, rustic imaginations” were easily taken over. As Gouverneur Morris, signer of the U.S. Constitution, declared, “they have no morals but their (own) interests.” Alexander Hamilton called the commoners “the unthinking populace” before he went on to praise the elite “whose minds seem to be of a greater make than the minds of others and who are replenished with heroic virtues and a majesty of soul above the ordinary part of our species.” It seems to be quite general among the “better sort” like many of the Founders, that the gentry and aristocrats in society were considered to be the ones who made things happen; men of extraordinary character “destined in war, the arts, and in government to be the source of achievement and works of genius.” Even Thomas Jefferson, who penned the great Declaration that all men are created equal, thought that the ordinary people most often seen by travelers – “tavern keepers, Valets de place, and postilions” – were the “hackneyed rascals of every country” who “must never be considered when we calculate the national character.”

So it was then; so it is now. There are still among us those who believe in an Elite, an aristocratic plutocratic cabal of ‘worthies’ -- the privileged few -- who must be paid respect and obeisance so that they may lead us all to greater exceptionalism. All the more reason to emphasize the egalitarian aspects of our founding and of our development as a democratic republic that has periodically emerged to ensure the rights and freedoms and opportunities of all its citizens. One of the ways to do so in our time would be to change that remnant of elitism known as the amendment/ratification process enshrined in our Constitution. But first, let us re-iterate that many constitutional amendments have been proposed and have been set aside; an easier way to amend might just bring out the worst of proposals as well as the best. Is it worth the risk?

According to

“In every session of Congress, hundreds of constitutional amendments are proposed. Almost never do any of them become actual Amendments. In fact, almost never do any of them even get out of committee.”

It is interesting to see some of the types of proposals our legislators have brought forth. “Proposed amendments are a reflection of the mood of the nation, or of a subset of the population. These lists are not detailed examinations of the proposed amendments, the bills that carried them, or the process they went through. If a further examination is desired, a search of the Thomas database can be done.”

Please note that some amendments are proposed over and over again in different sessions of Congress. For the sake of brevity, the 102nd Congress is used as a ‘baseline’ and each subsequent Congress has only new ideas for amendments listed. Some having to do with ‘nuts and bolts’ operations have been eliminated by me for the sake of more brevity.

109th Congress (2005-2006)
To ensure reproductive rights of women
To force the Congress and President to agree to a balanced budget, with overspending allowed only in the case of a three-fifths vote of Congress
To ensure that all children who are citizens have a right to a "free and adequate education"
To specifically permit prayer at school meetings and ceremonies
To allow non-natural born citizens to become President if they have been a citizen for 20 years
To specifically allow Congress to regulate the amount of personal funds a candidate to public office can expend in a campaign
To make the filibuster in the Senate a part of the Constitution
The "Every Vote Counts" Amendment - providing for direct election of the President and Vice President, abolishing the Electoral College
To clarify eminent domain, specifically that no takings can be transferred to a private person except for transportation projects
Providing a right to work, for equal pay for equal work, the right to organize, and the right to favorable work conditions

108th Congress (2003-2004)
To lower the age restriction on Representatives and Senators from 30 and 25 respectively to 21
To ensure that citizens of U.S. territories and commonwealths can vote in presidential elections
To guarantee the right to use the word "God" in the Pledge of Allegiance and the national motto
To restrict marriage in all states to be between a man and a woman
To remove any protection any court may find for child pornography
To place Presidential nominees immediately into position, providing the Senate with 120 days to reject the nominee before the appointment is automatically permanent

107th Congress (2001-2002)
Calling for the repeal of the 8th Amendment and its replacement with wording prohibiting incarceration for minor traffic offenses
To specify that progressive income taxes must be used
To specify a right to "equal high quality" health care
To limit pardons granted between October 1 and January 21 of any presidential election year
To require a balanced budget without use of Social Security Trust Fund monies
To allow for any person who has been a citizen of the United States for twenty years or more to be eligible for the Presidency
To force the members of Congress and the President to forfeit their salary, on a per diem basis, for every day past the end of the fiscal year that a budget for that year remains unpassed

106th Congress (1999-2000)
To provide a new method for proposing amendments to the Constitution, where two-thirds of all state legislatures could start the process
To allow Congress to enact campaign spending limits on state and federal elections
To declare that life begins at conception and that the 5th and 14th amendments apply to unborn children
To prohibit courts from instructing any state or lower government to levy or raise taxes

105th Congress (1997-1998)
To force a national referendum for any deficit spending
To provide for the reconfirmation of federal judges every 12 years
To prohibit the early release of convicted criminals
To establish the right to a home
To define the legal effect of international treaties
To clarify that the Constitution neither prohibits nor requires school prayer

104th Congress (1995-1996)
To clarify the meaning of the 2nd Amendment  
To force a two-thirds vote for any bill that raises taxes
To repeal the 16th Amendment and specifically prohibit an income tax
To provide for removal of any officer of the U.S. convicted of a felony

103rd Congress (1993-1994)
To allow a Presidential pardon of an individual only after said individual has been tried and convicted of a crime
To allow Congress to pass legislation to allow the Supreme Court to remove federal judges from office
To provide for the recall of Representatives and Senators
To remove automatic citizenship of children born in the U.S. to non-resident parents
To enable or repeal laws by popular vote
To define a process to allow amendments to the Constitution be proposed by a popular ("grass-roots") effort
To provide for run-off Presidential elections if no one candidate receives more than 50% of the vote
To prohibit abortion
To bar imposition on the States of unfunded federal mandates

102nd Congress (1991-1992)
To disallow the desecration of the U.S. Flag
To allow a line-item veto in appropriations bills
To expand the term of Representatives to four years
To prohibit involuntary busing of students
To make English the official language of the United States
To set term limits on Representatives and Senators
To repeal the 22nd Amendment (removing Presidential term limits)
To guarantee a right to employment opportunity for all citizens
To grant protections to unborn children
To provide for "moments of silence" in public schools
To allow Congress to regulate expenditures for and contributions to political campaigns
To provide for the rights of crime victims
To provide for access to medical care for all citizens
To repeal the 2nd Amendment (right to bear arms)
To prohibit the death penalty
To protect the environment
To repeal the 26th Amendment (granting the vote to 18-year olds) and granting the right to vote to 16-year olds
To provide equal rights to men and women

It is important to make a few comments at this point.
  • there is some risk in making it easier to amend and ratify amendments
  • this list indicates that there are ideas floating about that simply are not worthy of consideration
  • mistakes can be made by trying to legislate morality
  • opening the flood-gates to amendments from the citizenry is fraught with negative complications
On the other hand:
  • only 27 amendments have made it to the finish line
  • the people deserve some major role in maintaining our democratic Republic and popular amendment of the Constitution has been proposed more than once
  • using a new amendment method does not automatically mean that there will be chaos, especially if time spans and checks and balances are built-in
  • if our citizens are capable of organizing to do good, then they can organize to present workable and effective changes to our Constitution
  • there are many more knowledgeable and responsible citizens in the general population than there are representing us in the Congress or in state legislatures
  • it is time to end the elitist control of what gets changed and what does not; the people must have a voice in the on-going life of the Constitution and of our way of governing
Thus, we come to the major point that needs to be made:

As long as the constitutional amendment process remains solely in the hands of legislators, the will of the People for systemic change and reform will be easily thwarted.

It is, and has been, my opinion that Progressive efforts to overturn shaky Supreme Court decisions like Citizens United, Hobby Lobby and several that have negatively affected equal justice (such as Whren vs. United States and Armstrong vs. United States - see my Blog post of 5/21/2015), are not necessarily doomed to failure, but the energy behind them should be reserved for the broader battle of changing the Constitution to allow for a third popular method of amending our Constitution. As long as we are going to fight for constitutional reform, we might as well concentrate our efforts where we can bring about the greatest change.

I have written on this topic before (5/26/2014), and have already proposed some general elements for such an amendment to the Constitution, and herewith submit a few more practical guidelines:
  1. any amendment offered should concentrate on one topic so as not to confuse the issue being addressed
  2. the wording of any proposed amendment should be uniform throughout the states
  3. some common sense “checks and balances” should be included in the new amendment process
  4. time frames assigned to steps to be taken would be helpful in allowing time for reflection and debate, and moving the process to conclusion
  5. the proposal for method should be based on procedures already familiar to the voters
  6. this new amendment process should be reserved to the people, with office-holders at state and national levels prohibited from using the petition process (they have the original methods all to themselves!)
That brings us to my admittedly amateurish attempt to put something in writing that might be the basis for an amendment to involve the initiative of the People in our constitutional amendment/ratification process. But not before I refer you to something that already exists known as the popular or populist amendment process based on the populist theory of the Constitution written about by Constitution framer James Wilson and examined at some length in The Constitution: a Biography by Akhil Reed Amar.

This idea of popular amendment comes from the conceptual framework of the Constitution which asserts that its power comes from the People; it functions at the People’s behest and for their benefit. Thus, if the people want to make a change to their Constitution, all that is lacking is a process, as the principle of possession and control were settled long ago in the Preamble and the contents of that document. I believe we already have certain clues as to how this could be done, but am not skilled enough in the law to construct a definitive amendment. So here are my thoughts for your consideration:

1)  Let us make use of the petition process which is already well-established in our political processes, and sanctioned by the Constitution in the First Amendment.
  • any citizen should be able to initiate an amendment petition – an individual, group or organization, but not state or national office-holders
  • circulate the petition to like-minded groups and organizations within one’s own state and to other states
  • enlist the aid of one or more nation-wide organizations to spearhead a collaborative effort in every state
  • gather support for the proposed amendment by collecting signatures from voters and supportive resolutions from local government entities
  • once a petition contains the signatures of 1/3rd of eligible voters in a state, it shall be transmitted to the designated official in each state who will verify the signatures within 45 days of receipt and certify the petition to the state legislature; each state legislature shall then have 60 days to consider the proposed amendment, offer its own amendments to the proposed amendment, and then transmit the proposal and suggested amendments with its recommendation for or against passage to the Congress of the United States
  • within 120 days after receipt of the recommendations and suggestions of 26 states, Congress, or a joint special committee thereof, shall periodically and systematically consult with representatives and sponsors of the original petition drive in order to review all state suggestions for amendments, as well as its own recommendations, and those of other appropriate committees; the Select joint Committee shall then present to the full Congress, with the concurrence of the original petitioners, the proposed amendment in final form.
2)  Let us also make use of a ballot referendum or initiative which is standard in at least 26 states.
Eighteen states even have ballot initiatives involving direct votes on state constitution amendments.
  • The Congress shall then debate and pass a joint resolution with its recommendation for approval or disapproval of the amendment. Notwithstanding the outcome, the joint resolution with the final form of the proposed amendment shall be submitted within 21 days to the Archivist of the United States who will submit the proposed amendment to the States within 30 days ( including a legislative history and information packet relevant to the amendment) for placement on each state ballot in a special nation-wide election called for the purpose of voting on the proposed amendment, or at the next general election; said election of either type shall be held within three months from the receipt of the letter of notification from the Archivist.
  • The results of each state’s referendum on the amendment shall be formally transmitted to the U.S. Archivist with an original or certified copy of the State’s action, within 21 days of the election . When the Archivist certifies that 3/5s of the states (30 states) have certified the passage of the proposed amendment by ballot referendum, the Archivist shall certify that the amendment has passed and has become part of the Constitution. This certification is then published in the Federal Register and U.S. Statutes at Large, and serves as official notice to the Congress, the States and to the voters that the amendment/ratification process has been completed.
3)  The total process might take anywhere from 9 months to two years (including an extra fifteen months for the initial petition phase, if needed); still long enough to debate, discuss, publicize and test while short enough to maintain interest and commitment.

I do hope you find this worthy of your consideration and maybe even of a broader consideration and debate. After all, isn’t it time to assert that the Constitution does belong to the People and that it is our civic responsibility to preserve, defend and enhance it to the benefit of the People?