Thursday, November 18, 2010
The Right Way to Amend the Constitution, part 21
This is part twenty-one 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?
Here is another of my amendments (subject to revision):
Section 1. The seventeenth article of amendment to the Constitution of the
is hereby repealed. United States
Section 2. The Legislatures of each State shall assemble in years preceding the year in which the term of a Senator is to begin, on the first Monday in August unless it shall by law appoint a different day. On this day, the members of each Branch of the State Legislature shall vote by ballot for one person for Senator. The Senator shall then be elected by the people of the State from among all those receiving the most votes in at least one Branch of the Legislature of the State. The electors for this purpose shall have the qualifications requisite for electors of the most numerous Branch of the State Legislature in each respective State.
Section 3. In even numbered years, in States which would not ordinarily elect a Senator in that year, a Vice Senator shall be elected to a term of six years beginning on the 3d day of January of the following year. The election shall be carried out at the same times, in the same manner, and with the qualifications for electors as election of a Senator. No person constitutionally ineligible to the office of Senator shall be eligible to that of Vice Senator.
Section 4. Whenever there is a vacancy in the office of Senator, the Vice Senator of the same State shall assume the vacant office. When there is a vacancy in the office of Vice Senator, the executive authority of the State shall make a temporary appointment until the next meeting of the Legislature of the affected State, which shall then fill the vacancy, unless they shall have provided by law other means by which the office would be filled as soon as it became vacant.
Section 5. If, at the time fixed for the beginning of the term of a Senator, the Senator elect shall have died or if no candidate for the office shall have qualified, then the Vice Senator shall become Senator. If a Senator dies, resigns, or is removed from office and the office of Vice Senator is vacant, then the office of Senator shall be filled in the manner in which it would have been if this amendment had not been adopted unless the Legislature of the affected State shall have otherwise directed by law.
Section 6. Sections 4 and 5 shall not take effect until every State shall have chosen a Vice Senator. This amendment shall not be construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Commentary on this proposed amendment:
The purpose of this amendment is three-fold.
First it offers a compromise between the method of election of Senators in the original Constitution and the way that it is done now under the Seventeenth Amendment. This would have a better chance of passing than a simple repeal. The State Legislatures would be able to choose the Senators, but there would many ways in which the electorate could still have a choice in a general election. If a state has a bicameral legislature as most states do, it may frequently occur that two different candidates would be selected, and the electorate would be able to choose between the two. And with the addition of the office of Vice Senator, being elected in the same manner, there is another chance for this to occur if there is to be a vacancy to be filled. And finally, even if the legislature chooses only one candidate, there is at least one way in which the legislature may allow the electorate to reject their choice. Note that Section 5 states “…if no candidate for the office shall have qualified, then the Vice Senator shall become Senator.” The legislature could, for example, enact a “turkey ballot” law. This would allow the voters to vote “none of the above” and if more such votes were cast than for any candidate, then all the candidates on the ballot would be disqualified. In this case, the Vice Senator would become Senator.
Secondly, it gives the States more flexibility in some respects than they had both before the seventeenth amendment and now.
Thirdly, if the office of President is important enough to have a back-up, then shouldn’t also the office of Senator? Senators serve 6 year terms whereas the President serves only four years. And the Vice Senator would be backing up two offices, not just one. The original Constitution states in Article V that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”. This amendment would help to fulfill the purpose of this statement by ensuring that any vacancies in the office are immediately filled. Thus, every state is likely to have full participation in every vote in the Senate (except for the apathy of a Senator). The creation of this office would also take most of the appointment power away from the Governor regarding Senators (and would allow the State Legislatures to take it all away if they wished).