Thursday, July 09, 2009

The Right Way to Amend the Constitution, part 3

This is part three of an ongoing series of articles containing proposals for amendments to the Constitution. For someone who claims so fervently to be a “Constitutionalist”, how is it that I can be so eager to change the Constitution? Well, there are several reasons. For one thing, I believe that after the Bill of Rights, much damage was done by some of the amendments that were added and the legitimacy of some of their ratifications are questionable. Secondly, the Constitution has been violated so much that the necessity of further amendments is needed to resolve the resulting problems. But this should be done extremely cautiously. These amendments are extremely unlikely to ever be introduced, much less ratified, but hey, I can dream, can’t I?

Here is this week’s proposed amendment (subject to revision):

Section 1: Every article of amendment to this Constitution of the United States ratified after the year 1799 and prior to the year 1972, excepting the 15th, 20th, and 24th is hereby repealed.

Section 2: The certification of all articles of amendment to this Constitution shall be operable as if all ratifications thereof were proper and in accordance with this Constitution.

Commentary on this proposed amendment:

I will go through all of the amendments that would be repealed and explain why they are repressive, flawed, and/or unnecessary. Section 2 is necessary to put to rest the issue of the questionable legitimacy of the ratifications of the 14th, 16th, 17th and possibly other amendments.

12th Amendment. It is better for the Vice President to be the one who gets the second most electoral votes than for it to be the running mate of an elected President. Since the VP gets to break ties in the Senate, repealing the 12th would be a slight check on the power of a dominant political party. I also don’t think that it’s good to reduce the number of candidates from 5 to 3 that could be elected in case no candidate won a majority of the Electors.

13th Amendment. I would hate to see this one go, but its flaw is that there are cases in which forced labor is appropriate. The amendment itself has an exception, namely “as punishment for crime whereof the party shall have been duly convicted”. This is a good exception, but I think that it should be clarified to include those unable to repay private debts. But the most serious flaw is that parents have the God given right to require their children to do chores. If an overriding parental rights amendment were added, then I would consider including the 13th among the other exceptions.

14th Amendment. Section 1 is the most contentious part of the 14th. The first clause, “All persons born or naturalized in the United States and subject to jurisdiction thereof, are citizens of the United States…” has also caused a lot of problems. What does it mean to be “subject to jurisdiction”? The authors of this amendment obviously meant that it shouldn’t include all people born in the United States, or else that phrase wouldn’t have been included. But everyone physically in the United States is in some way subject to the jurisdiction of the United States, because certain federal laws would be enforced with respect to such a person regardless of other factors. They should have instead written “born to another citizen” or left the phrase out altogether depending on what they really meant. Without the 14th, the Congress would have the unrestricted right to decide that question, which is a much more appealing idea to me.

Also the clause, “No state shall enforce any law which shall abridge the privileges or immunities of citizens…” is harmful because “privileges and immunities” are not well-defined—a better term to use would have been “constitutional rights” or else the desired rights to be protected should have been explicitly named. Because of this kind of nonsense, we have courts saying that this means that a woman has the right to an abortion and that we can’t have prayers in schools or Ten Commandments displays. Similarly, the word “liberty” is vague with respect to a right that one cannot be deprived of by a State.

Next, the phrase “nor deny to any person within its jurisdiction the equal protection of the laws”. Pro-lifers like to use this to say that the unborn should always be included in any law against murder. And what about this idea with respect to other issues? To say that a child should have the same protection under the law as an adult conflicts with parental rights and disallows things like statutory rape laws.

I like section 3, but the 14th isn’t worth saving for the sake of that. Section 5 makes this amendment even more dangerous, giving Congress added authority to violate states’ rights. The content of the rest of the sections either have to do with slavery and the Civil War or are redundant and are no longer needed. The validity of the ratification of this amendment is extremely questionable.

16th Amendment. This gives the Federal Government the right to extort its own citizens for money. This renders all of benefits of the 13th and many other parts of the Constitution completely useless. No need to say more.

17th Amendment. This made the election of U.S. Senators dependent upon their ability to raise large quantities of money. That promotes corruption.

18th and 21st Amendments. The 21st has already repealed the 18th. So there would be no effect as far as these are concerned.

19th Amendment. I guess I’ll take a lot of flack for this one, but I think that the issue of whether or not a woman can vote should be left up to the states.

22nd Amendment. I am against all term limits. They place an undue limitation of choice on the voter, disqualifying possibly good candidates. If no efforts succeed to dissuade people from electing a corrupt President over and over again, then we deserve to reap the resulting destruction. In the years since this amendment was ratified, Presidents have become even more corrupt. A better solution is to change the way Presidents are elected.

23rd Amendment. It’s wrong that some citizens are not represented in Congress and that Washington D.C. gets a full three Electors in the Presidential election. Washington D.C. should not be made a State, but there are better ways to address the problems addressed by this amendment.

25th Amendment. The President should not be allowed to fill a vacancy left by a departing Vice President. The original contingency of appointment by Congress is much more prudent (see under 12th).

26th Amendment. The issue of how old someone must be before they can vote should be left up to the states.

Click here to read the next post in this series.

1 comment:

Matt said...

I had written, "Without the 14th, the states would have the legal right to decide that question, which is a much more appealing idea to me." This is not true, the Constitution does charge Congress with the duty "To establish an uniform Rule of Naturalization" in Article I section 8. I have made the appropriate correction in the text of this post.