President Obama's very fine inaugural address notwithstanding, I believe our Constitution is flawed, and perhaps fatally flawed. Please don't get me wrong; I very much admire that noble document. I have a copy (courtesy of ACLU) on my desk that I refer to quite frequently.
The founders could hardly be faulted for failing to take into account the problem: our Constitution is impossible to amend when partisan advantage is at stake. Gerrymandering is the most egregious example. The political party in any particular state has, in effect, the power to elect themselves, as long as they hold both state houses (even if only for a few hours). The judiciary could put an end to gerrymandering if it took a proactive stance, but so far it has not seen fit to do so. We could end the gerrymander madness by amending the Constitution. Guess what the chances of that happening are? Even if Congress approved a constitutional amendment (slim), what are the chances that 38 states would agree? (None)
This story, still unfolding, demonstrates that Republicans will stop at nothing. Every single Republican state senator of Virginia voted for it; not even one senator had a twinge of conscience. We wait to see if Governor Bob (ultrasound) McDonnell signs the bill, or if the courts give Virginia their judicial blessing to disenfranchise its citizens. The latest from the great state of Virginia is that at least one Republican is likely to balk at the scheme to gerrymander the state's electoral college delegation, and Governor McDonnell has said he would veto it. Praise be!
The electoral college system itself is a second problem. In the 2012 election, the presidential votes of the 220 million Americans who don't happen to reside in a swing state were effectively nullified. This is profoundly wrong because it contradicts the "one person, one vote" principle, yet our system for amending the Constitution makes it all but impossible to change. Similarly, everybody with any sense of fairness knows that the gerrymander is an unmitigated political evil, yet it is also impossible to correct.
Put these two defects together, and you have a recipe for the minority to effectively hijack the entire government. The wheels are already in motion in several swing states to do just that. The Republican party is—this very day—plotting to take over the United States government through legislative trickery. According to the Constitution, it's perfectly legal unless the courts strike it down. What can we do about this outrage? Please have a look below the fold. (Sorry, Wayne LaPierre, it doesn't involve assault rifles.)
Our founding fathers have clearly declared that we have the authority to do what is necessary. We need only to assert that authority:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.The preamble could also be cited:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.Note that "the people" are, in both of these founding documents, the source for the legitimacy of the two documents. But how should we proceed? I propose that we adopt a Meta Constitution, that is, a document ranking above the Constitution that confers upon the people the ability to give their consent to be governed.
A Meta Constitution for the USAThere is no particular reason to choose nine, except that it matches the number of Supreme Court Justices. This article is meant to assure the average citizen that there is no regional bias in the selection of Founders. In the actual bill, the regions would probably be defined explicitly by listing the states that comprise each region. In truth, the political and social views of the Founders are more or less irrelevant, given the restrictions put on them by Article V
Article I - This Meta Constitution shall take effect only after being approved by a 60% majority of the electorate in a special election to be held during the year 2XXX as Congress shall direct. As soon as the result is known, Congress shall declare that result by joint resolution. The Supreme Court shall have original jurisdiction regarding any disputes that may arise in the special election.
Article II - By virtue of its ratification by the people themselves, this Meta Constitution shall be superior to the Constitution of the United States and all its amendments. By definition, this Meta Constitution represents the will of the people. It may not be altered, amended, or repealed except by a majority vote of the people.
Article III - The nation shall be divided into nine contiguous regions of roughly equal population along state boundaries. In each of these regions, the tenured faculty of all law schools accredited by the American Bar Association that hold advanced law degrees shall choose, in a democratic manner of their own design, a "Founder" who shall have been for the past five years a resident of that region, and who shall serve for life.
Article IV - The nine Founders decide what amendments to the Constitution, if any, to propose to the people. These decisions are jointly agreed by majority vote.The Founders are in charge of the machinery that controls the rudder, but they have no say in which direction the ship of state sails. The Meta Constitution idea would be dead in the water (to extend the maritime metaphor) if the Founders could consider amendments that deal with policy. I firmly believe that policy is best left to elected officials. You might be disappointed that the second amendment would not be repealed, and so would I. But if the Founders were allowed to set policy, then Congress would be reduced to bureaucrats writing regulations at their behest. This is a bedrock principle for the Meta Constitution: it never controls policy.
Article V - The Founders must confine their proposals to matters of governance, rather than matters of policy. That is, their attention must be focused on perfecting the machinery of government rather than on the details of what government accomplishes. Founders must retain intact the following amendments: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 19, 23, 24, and 26.
Article VI - Founders may propose as many as three amendments, which must be published by June 1 in even numbered years. The amendments proposed shall be put on the ballot for the general election held in November of the same year. If a 60% majority of the electorate approves an amendment, it shall take full effect as specified in the amendment itself.Why only three amendments? Because it avoids cluttering the ballot with too many decisions for the voter. Should this be reduced to two or one?
Article VII - The Founders shall receive compensation equal to that of US Supreme Court Associate Justices, with expense allowances for their necessary travel. No office or staff expenses are authorized. The Founders are subject to impeachment in the House of Representatives in the same manner as is the President, but Founders are not otherwise subject to congressional subpoena."Travel" means airfare, ground transportation, hotel and restaurant expenses while away at Founder meetings, but nothing else. Their actual labor, while extremely important, amounts to a few weeks out of the year, so office and staff expenses are unnecessary. At $214K per year, they would be quite comfortable, especially since they might well supplement their income in ways that pose no conflicts of interest.
The above is proposed only as an example; you could change any of the details except Article V. You might object to paying nine elite lawyers a handsome lifetime salary merely for coming up with a decent idea or two every couple years. But the total bill would come to less than $3 million annually—a pittance to insure that the people have a genuine voice in government.
How could such a Meta Constitution be put into place? In theory, I think it's actually fairly straightforward. Congress enacts the above Meta Constitution as a bill, and the President signs it. The provision for a 60% majority vote of the electorate overrides any legal objection; the legitimacy of the Meta Constitution is established by the very documents that launched our republic. (see above)
Why the 60% majority requirement? The Meta Constitution would be a major step in changing the governance of our nation. If the requirement were merely a majority, the moral argument could be made that a bare majority is not unambiguously representative of the people. I believe that most people would accept that 60% represents the clear will of the American people; in presidential politics, it would be called a landslide.
There is one minor problem to be solved: we must persuade Congress—and particularly the gerrymandered House—to pass the bill. This means we must persuade a majority of Congress to do the right thing, admittedly not a trivial task. Maybe the best approach is to establish a bipartisan caucus or even a non-partisan commission to pursue the idea. I don't know; I am not a politician.
The necessity for a ratification vote for each amendment would have some interesting consequences. The Founders would presumably want to have their amendments approved, because approval would mean personal satisfaction, prestige, and a place in history. It would seem likely that they would not propose radical or controversial changes, but even if they did, the people could always reject them. Founders would themselves possess no actual political power; rather, they would enable the people to exert that power.
I would hope that gerrymander and electoral college reforms would be at the top of their list. I personally think that there are several other worthy reform topics, but I also think it would be unwise to attempt too much, too fast.
I think this is doable, at least in theory. The Meta Constitution would, for the first time, give the American people a direct voice in how they are governed. Among the benefits is the fact that politicians would be forced to pay closer attention to the will of the people, rather than looking for tricks to thwart it.
There will be those in the comments that say that this will never happen. Maybe they will be right. But I will point to the people who originated the National Popular Vote idea. They knew that a Constitutional amendment to abolish the electoral college was all but impossible, and they found a creative way to circumvent that problem. Today, the NPV has a realistic chance of becoming reality. I don't pretend that the Meta Constitution idea will take the nation by storm; I advance it in an effort to eventually improve governance in this country. How else can we the People make a real difference?