Strengthening Constitutional Self-Government

No Left Turns


Revising the Constitution

After learning of the fact that tiny Iceland is rewriting its constitution, Fareed Zakaria makes the suggestion that our own United States Constitution needs some revisions as well. While it does seem like he would be open to another constitutional convention in order to just rewrite the whole thing if need be, he stops short of calling for that with a clear understanding of American views on the rightfully-respected document. While he rightfully points to the unintended power that the courts have acquired as a flaw within the document that could use some correcting, he then goes on to lament that the Senate and the Electoral College are not democratic enough, exhibiting a lack of understanding of the document. Yes, those two bodies are absolutely intended to limit democratic tendencies and permit some sort of local governments to exist via the states. Like many anti-EC types, he wrongfully points to the disputed 2000 election as a great failure of the system. The 2000 Election was a failure in electoral management by the state of Florida and an arguably bad decision by the Supreme Court to support Florida's decision not to count some votes; had Florida not had the problems it did, and had Bush still won the state, I believe that the arguments against the system would not be nearly as loud despite Bush winning the college's vote and Gore the popular vote.

However, the discussion on new amendments to the Constitution is perhaps a good one to have, and he asks people to mention three amendments that they would like to see. Personally, I think amendments that give a supermajority of the states the power to veto federal legislation, repeal the 17th amendment, and figure out some way to address the mess that the courts are would all be good ones to consider. What amendments would you propose?
Categories > Politics

Discussions - 21 Comments

To make California secede from the Union and become part of Russia.

he then goes on to lament that the Senate and the Electoral College are not democratic enough, exhibiting a lack of understanding of the document.

I will wager Mr. Zakaria understands that component of the document passably. It is just that he sees this feature as disagreeable.

The whole institutional architecture is sufficiently problematic that I do not think you are going to get by with just three amendments if you want to repair much of anything, unless those amendments are of the omnibus variety.

If given the opportunity, I probably wouldn't change the Constitution at all. However, if there is one problem with it, I do believe it lies in the way the judiciary was able to worm its way into the legislative process.

I genuiney believe that in light of failed social policies and practices (see: 1960s - present), failed economic policies (see: Great Society - Stimulus/Bailout Bonanza), and failed foreign policies (see: Cold War, DoJ vs War on Terror, et al) of the last half century, the country is becoming more conservative. Gallup agrees.

The trouble in the future won't be convincing the public that conservative principles are correct, but rather that the elite institutions of higher learning will continue vomitting forth armies of credentialed lawyers and judges who will overturn legislatures and create laws by judicial fiat against the will of the unenlightened masses. Other than winnin the war of ideas in said named institutions, I don't know how else to stop that.

The Great Society was not an example of 'failed economic policy'. The economy was bouyant during those years. It was failed social policy. The failed social policies were not limited to specific packages proposed by Mr. Johnson and his confederates, but were the result of discretionary decisions at all strata of the political architecture.

You would likely get quite an argument (from soi-disant 'conservatives' as much as anyone else) if you wished to defend the proposition that the Cold War, the War on Terror or the TARP program were manifest failures.

If you wish to deal with the challenge of the judiciary, have a constitutional amendment which puts standards of judicial review in plain and explicit language, assigns the advise-and-consent function for trial judges to state legislatures; and subjects federal judges to mandatory retirement, retention referenda, recall, and interpellation by legislative bodies.

If you would like an amendment which addresses the problem of academe, the following might do: make civil service placements and occupational licenses contingent on completing competitive examinations, with no degree requirements; place institutions of higher education under the governance of trustees elected by locally-resident alumni; replace tenure with renewable six year contracts; limit conceivable degree programs to a menu agreed upon by the state legislature and the board of regents; require by law that any course offered is to be offered every year; replace baccalaureate and masters degrees with a set of one, two, three, and four year degrees wherein all course work would be devoted to the same subject; end all public subsidies to institutions of higher education; and standardize institutional nomenclature.

Okay, I'll Take a shot:
1) Term limits; Congreess - 2, Senate - 1, Pres - 2
(Possibly a ten year limit on Supreme Court Service)
2) Balanced Budget (every year)
3) All gov't employees/officials must abaide by same laws/regulations as other citizens.

I was unclear: the liberal/progressive position taken during the Cold War and WOT, not the measures taken to fight them, were invalidated by events (the fall of the Berlin Wall and the Sunni Awakening come to mind). TARP: from what I've read, the general consensus is that it was a necessary measure which achieved a positive good. The mortgage, bank, auto bailouts? Those bailouts rewarded bad behavior/choices of a few at the expense of the many all while maintaining the rotten structure which begat the mess.

Great Society: touche.

Your other suggestions sound reasonable, although enacting them is another matter.

Regarding the electoral college, John Kennedy quoted William Faulkner: "When it is not necessary to change, it is necessary not to change." This posting and thread reminds me of Sunday supplements that pose some question just to fill up space and interest readers. There is no demonstrable need to amend the U.S. Constitution, so leave it alone. In any case, nothing can be done with a split Congress.

See above

There is no demonstrable need to amend the U.S. Constitution, so leave it alone.

I think you mean there is no need that anyone is ever going to succeed in demonstrating to you.

If we are fortunate, we might in the next few years avoid a sovereign default and might just avoid an imposition, per the whims of Mr. Justice Kennedy, of a ghastly parody of marriage as a matter of law. But let's not get above ourselves and suggest their might be a structural flaw which promotes this sort of mess.

Ammend to repeal! The 16th would be a great one to start with. Followed with the 17th and a return to the original intent of allowing state assemblies to elect Senators and then finally a repeal of the 22nd -for the Gipper!

For new constitutional clauses, I wonder if Mr. Zakaria might not like something like:

"No Title of Nobility shall be granted by the United States... unless it comes with an Ivy League seal....."

"All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of two houses--"Meet the Press" and "This Week with Christiane Amanpour."

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of Donna Brazile, expel a Member."
"All Bills for raising Revenue shall originate in the House of Representatives; but Newsweek may propose or concur with Amendments as on other Bills."

"He shall have Power, by and with the Advice and Consent of Foreign Affairs magazine, to make Treaties, provided two thirds of the post-American world concur;"

Well, you get the drift...

Juvenile, I know, but if the times fit....

In the spirit of the above, I look forward to the new "Hard Progressive version" of the Declaration of Independence:

"The people have refused their Assent to Laws deemed by the New York Times to be the most wholesome and necessary for the public good."

"The people have dissolved Democratic Representative majorities repeatedly...."

"The people have obstructed the Administration of Social Justice, by refusing their Assent to Laws for establishing Judiciary legislative powers."

"The people have made Judges dependent on the Rule of Law alone..."

"The people have kept among us, in times of peace, Standing Armies with the Consent of our legislatures."

And so on...

Getting back to the issue at hand...I am not in favor of getting rid of the Electoral College tabulation method, for I consider it a wise way to prevent smaller and rural areas from having to consider independence as the only way to have a meaningful say in the direction of their nation.

I have no problems getting rid of the College itself, or the Electors. As to the reason for it/them---I think the structure itself was chosen as a highly effective method to prevent vote fraud in a nation that, before 1787, only voted statewide in elections for governors (and had only been doing that for about a decade), and that before the Revolution was a land where people really never voted for anyone where they couldn't see each and every voter on election day, if they wanted to--because there were, to my knowledge, no colony-wide elective offices of any great import during the colonial period. Though I could be wrong, I think they were all local races, and any higher offices that were elective were voted on at the colonial capital by the representatives themselves.

I'm thus convinced what the Electoral College allowed was assurance that the votes in the local districts or the state capital would actually show up in the national capital as being for the appropriate candidate--because the locals weren't sending ballots that could be tampered with during the long trip, but people, known locally and elected locally and thus accountable for their vote when they returned. And the large number of electors meant you weren't able to bribe just one to change his vote--you had to bribe them all. (For in a nation where it took a month to hear news, by the time you heard the wrong candidate had been installed because of fraud, say an Aaron Burr, it might be too late to do anything about it peacefully).

Thus, in my argument, the Electoral College was a wise solution to a real potential problem of voting chicanery, and in my view, if I am right, should serve as a reminder that not everything in the Constitution was always explicitly spelled out for posterity as to the exact motivating concerns that drove inclusion (because they had a lot of concerns, many tacit).

At any rate, while time has passed the need for the College on by (though not the need to guard against electoral fraud, thanks to our Democratic friends), I still view the system of 535 electoral votes as a wise one, and one that should be retained.

The EC also guarantees Presidential campaigning in flyover country. If the popular vote was the only path to victory, candidates would spend all their time in California, New York, Florida, Texas, and the Midwest.

The argument against a new constitutional convention has always been that the crazies would come out of the woodwork and you'd end up with something far worse than what we have. I tend to concur with that assessment. The Amendment process, which is generally slow and painful, is best, I think.

Personally, I do not care if the candidates campaign in my town or not or run one single advertisement unless those advertisements are information rich (and I have not seen such an advertisement in a presidential contest in 35 years). That aside...

If the candidates are optimiizing, they are going to distribute time and funds in such a way as the marginal benefit of each increment is similar accross the geographic expanse of the country. It would only be concentrated on the coast if the marginal benefit of advertising expenditures in the interior was always and everywhere nil, which of course it is not. Of course, the susptibility of a given geographically-bounded popuation to a given level of saturation may vary, but that is true whether or not you have an electoral college. It may also be that the pricing of advertising is such that the ratio of expenditures to the size of the audience is lower. I would tend to wager that would be the case with the sort of advertising where the cost of manual distribution is a large part of the price, which I do not believe is the case with broadcast advertising.

The weight of an abnormally small state (e.g. Delaware or Vermont) is much enhanced by the manner in which electors are apportioned. However, the total number of electors of states of that character is small and very often there is not much of a contest in these states so little propensity to spend in them.

Any number of states have held constitutional conventions over the years. You might look into the history of these to ascertain the sort of character likely to attend such. The last held in New York was, IIRC, presided over by the speaker of the state assembly. New York being New York, 'venal' is a more likely attribute of such a character than 'crazy'.

The regular amendment process stinks, of course.

Think about what you just said. Why do you think they call it "flyover country?"

The current system of electing the president ensures that the candidates, after the primaries, do not reach out to all of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind. The reason for this is the state-by-state winner-take-all method (not mentioned in the U.S. Constitution, but since enacted by 48 states), under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state.

Presidential candidates concentrate their attention on only a handful of closely divided "battleground" states and their voters. In the 2012 election, pundits and campaign operatives agree already, that, at most, only 14 states and their voters will matter. Almost 75% of the country will be ignored --including 19 of the 22 lowest population and medium-small states, and 17 medium and big states like CA, GA, NY, and TX. This will be more obscene than the 2008 campaign,, when candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN, MO, NV, NH, NM, NC, OH, PA, VA, and WI). Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA). In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.

2/3rds of the states and people have been merely spectators in "flyover" states, to the presidential elections.

Policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

The National Popular Vote bill is a state-based approach. It preserves the Electoral College and state control of elections. It changes the way electoral votes are awarded in the Electoral College. It assures that every vote is equal and that every voter will matter in every state in every presidential election, as in virtually every other election in the country.

Every vote, everywhere, would be politically relevant and equal in presidential elections. Elections wouldn't be about winning states. No more distorting and divisive red and blue state maps. Every vote, everywhere would be counted for and directly assist the candidate for whom it was cast. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

Under the National Popular Vote bill, all the electoral votes from all the states that have enacted the bill would be awarded, as a bloc, to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted by states possessing a majority of the electoral votes — that is, enough electoral votes to elect a President (270 of 538). The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

The Electoral College that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.

States have the responsibility to make their voters relevant in every presidential election. The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president. It does not abolish the Electoral College. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action, without federal constitutional amendments.

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support is strong among Republican voters, Democratic voters, and independent voters, as well as every demographic group surveyed in virtually every state surveyed in recent polls in closely divided battleground states: CO - 68%, FL - 78%, IA 75%,, MI - 73%, MO - 70%, NH - 69%, NV - 72%, NM-- 76%, NC - 74%, OH - 70%, PA - 78%, VA - 74%, and WI - 71%; in smaller states (3 to 5 electoral votes): AK - 70%, DC - 76%, DE - 75%, ID - 77%, ME - 77%, MT - 72%, NE 74%, NH - 69%, NV - 72%, NM - 76%, OK - 81%, RI - 74%, SD - 71%, UT - 70%, VT - 75%, WV - 81%, and WY - 69%; in Southern and border states: AR - 80%,, KY- 80%, MS - 77%, MO - 70%, NC - 74%, OK - 81%, SC - 71%, TN - 83%, VA - 74%, and WV - 81%; and in other states polled: CA - 70%, CT - 74%, MA - 73%, MN - 75%, NY - 79%, OR - 76%, and WA - 77%. Americans believe that the candidate who receives the most votes should get elected.

The bill has passed 31 state legislative chambers, in 21 small, medium-small, medium, and large states, including one house in AR, CT, DE, DC, ME, MI, NV, NM, NY, NC, and OR, and both houses in CA, CO, HI, IL, NJ, MD, MA, RI, VT, and WA. The bill has been enacted by DC (3), HI (4), IL (19), NJ (14), MD (11), MA (10), VT (3), and WA (13). These 8 jurisdictions possess 77 electoral votes -- 29% of the 270 necessary to bring the law into effect.

The 11 most populous states contain 56% of the population of the United States, but under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in just these 11 biggest states -- that is, a mere 26% of the nation's votes.

But the political reality is that the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states include five "red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six "blue" states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states in 2004, the highest levels of popular support , hardly overwhelming, were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).

In addition, the margins generated by the nation's largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas -- 1,691,267 Republican
* New York -- 1,192,436 Democratic
* Georgia -- 544,634 Republican
* North Carolina -- 426,778 Republican
* Illinois -- 513,342 Democratic
* California -- 1,023,560 Democratic
* New Jersey -- 211,826 Democratic

To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 "wasted" votes for Bush in 2004 -- larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 "wasted" votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

Look what got past the spam filter.

The EC is consistent with the notion of "United States." We are not a democracy, but a constitutional republic consisting of States. Our system, clunky as it often seems (primaries, etc.), is by and large a good thing, preventing much rank demagoguery and balancing lots of regional interest. It's important to remember that sentiment and symbolism play significant roles in what we term "legitimacy."

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