Thursday, November 11, 2010

The Right Way to Amend the Constitution, part 20

This is part twenty of an ongoing series of articles containing my 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.  My amendments are extremely unlikely to ever be introduced, much less ratified, but hey, I can dream, can’t I?

After a long hiatus in this series, I have most recently come up with this:

Section 1.  An amendment to this Constitution may only be presented by Congress to the States for their consideration if two-thirds of the whole number of the members in their respective houses shall concur with the amendment.

Section 2.  Congress shall make no law penalizing or rewarding a State for ratifying, rejecting, or failing to ratify an amendment to this Constitution.  If Congress passes a law in violation of this section and if the affected amendment has not yet adopted into this Constitution, the presentment of the amendment shall be null and void.  Congress may withdraw an amendment which it has proposed at any time before it becomes a valid part of this Constitution.

Section 3.  Whenever an amendment is pending before the States and is not yet adopted into the Constitution, any State may change its position on ratification.

Section 4.  Ratification by a State of a pending amendment shall not be valid unless the State approves of the amendment exactly as proposed by Congress including all punctuation, capitalization, wording and spelling.

Section 5.  Any amendment purportedly adopted into this Constitution which would not have been valid if this amendment had been adopted prior to any purported action taken to adopt the purported amendment by either the Congress or the States, shall henceforth be inoperative until the conditions for adoption of amendments of the previous sections of this amendment and of Article V of this Constitution have been met.

Section 6.  This article of amendment shall be inoperative if not ratified under the conditions for adoption of amendments of the previous sections of this amendment and of Article V and shall not take effect until seven years following its ratification.

Commentary on this proposed amendment:

One purpose of this amendment would be to repeal the 14th, 16th, and possibly the 17th amendments.  The 15th amendment would also be lost through this amendment, but this amendment could probably easily be passed again and perhaps in an even better form (one which would, for example, not permit states from disqualifying people from running for office based on race and prohibit literacy tests).  I don’t know if there would be any other amendments removed from the Constitution, but the Corwin Amendment (a pro-slavery amendment) would be no longer be pending before the states because its passage in Congress did not meet the qualifications of Section 1.  Another purpose of the amendment would be to prevent any future amendments from being enacted which do not truly reflect the will of the people.  It corrects wrong interpretations of the Constitution concerning the amendment process like the two-thirds requirement being only of those present, the ability of the Congress to force the states to ratify an amendment, and the validity of inexact ratifications.  These misinterpretations have lead to the (alleged) adoption of these bad amendments without the proper super-majorities and great care which the Framers of the original Constitution intended.  This amendment would not be such a broad brush as an amendment which I had formulated earlier.

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