The Repeal Amendment or State Vetoes

Representative Rob Bishop has introduced the so-called Repeal Amendment in the House of Representative as a proposed amendment to the Constitution. The idea is to give the states a mechanism to preserve federalism from their end:

The U.S. Constitution, as drafted by the Founders, designed a system that created a balance of power between state and national government. That original balance has eroded as the federal government has accumulated more and more power in Washington. The Repeal Amendment will help restore the spirit of the Tenth Amendment by strengthening the ability of States to protect those powers “reserved to states”—as outlined in the Bill of Rights.

This is a much more practical alternative to the nullification option proposed by Texas-based constitutional lawyer Jon Roland.

While I have not vetted the text of the proposed amendment or seen much analysis of its projected ability in enabling its objective, here is the wording submitted by Representative Bishop:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

 

Revisiting the 17th Amendment

This blog has been a proponent of repealing the 17th Amendment. Mostly this was due to a concern that the balance of power between the States and the Federal Government had shifted too far. But this proposal is more about the ends that we would hope to promote through the means of the amendment's repeal. That is, some mechanism needs to be devised and implemented to give the States direct representation and a systematic say in crafting federal legislation. This was the idea of the Founders' original mode of senatorial selection, and it is this sort of structural rebalancing that provides the only hope of restoring the concept of enumerated, delegated powers at the federal level. A structural fix would provide the flexibility of needed to enact federal responses to problems deemed truly federal, while giving the States a direct responsibility in this formulation.

However, Jon Roland brings up a great point in his article:

Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

So point taken.

This blog's specific proposal goes beyond just repealing the 17th Amendment. Section 3 empowers State Legislatures to remove its senator, ensuring that a State's senators have its government's desires and interests in mind. Section 4 is designed to address the aspects of the original design and congressional "fix" that led to the deadlock and corruption that Progressives were fighting when they proposed the 17th Amendment.

Jon Roland's specific proposal is to change the nominating process for senators to sortition. His proposed amendment states:

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

The concern with this proposal is the quality of candidate a random selection process would produce. Taking the average Joe off the street and sticking him in the Senate would not fill me with much inspiration and hope for the Senate. Nevertheless, one key element of the Constitutionalism article that is absolutely required, assuming that a State Legislature should not choose a State's senator because of the increased chance of corruption, is the use of a different type of election procedure,

"Voters may vote for more than one nominee, using the method of approval voting."

The nominating process in America is badly broken, and this might be a good place to start thinking about how to change it. Perhaps if the random selection could be from the State Legislature itself or from among the leading people of each state's community (business, academia, medical, legal, religious, etc) and the selection from that seeded list could be via sortition, we could get to a process of senatorial selection that could bring the voice of the States back into the structure of the federal government while still minimizing the chance of corruption and deadlock.

Either way, it's heartening to see the interest in exploring this topic spread. At least people are thinking about it.

Proposed Amendment: Presidential Question Time

There is an interesting idea at goldwaterinstitute.org to import the Prime Minister Question Time from Britain and adapt it to the federal and state governments. Apparently, a proposed state constitutional amendment is being considered in Arizona to do just that for the Arizona state government.

I like this idea for Congress and the president as well, as it would at least move the politicians past their part-line talking points and pithy sound bites. I applaud President Obama for the bipartisan health care summit he held late last month in an attempt to seek ideas from Republicans on health care reform. Many in the media thought it nothing more than a show on everyone's part, but I thought some very useful and insightful question and dialogue came out of it. If we had more of that sort of give-and-take, I would venture to guess that the walls of partisanship and group-think would start to weaken.

Here is a version of the proposed Arizona amendment adapted for the federal Constitution:

On request from the Congress, the president shall appear once every two weeks on the floor of Congress to receive and respond to questions from the members of Congress during periods of regular legislative session. The president shall alternate chambers, appearing on the Senate floor to receive questions from members of the Senate, then appearing two weeks later on the House of Representatives floor to receive questions from the members of the House of Representatives. Each appearance shall be for a minimum of thirty minutes and a maximum of one hour, and the majority and minority party of that chamber of the legislature each shall receive one-half of the question time.

The option of nullification

This is a very good article by libertarian constitutional scholar, Jon Roland, on the serious option of nullification available to state legislatures.

In law “nullification” is not repeal or rescission of statutes or executive or judicial actions. It is the result of a sustained, widespread refusal to cooperate with them, until those attempting to enforce the actions are confronted with the unpalatable choice of either backing down or resorting to murderous brutality.

To say federal laws are always supreme just because Congress passes them makes a mockery of the principles of federalism that have always guided the governance of this Union, whatever the flavor of federalism of the day. We need to build some structural checks and balances into the state / federal relationship to reinforce federalism. Jon's proposed amendment to the Texas and other state constitutions seems to me to be a very good idea, serving as a possible institutionalized relief for the pressure that builds up against instances federal over-reach.

1. Commission. Establish a "Federal Action Review Commission" ─ a special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority of federal officials and agents and requiring strict proof of constitutionality from deductive logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials or agents.

4. Funding. Establish a state fund to pay for legal and financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.

To Appoint or Not To Appoint? That is the question.

Gubernatorial appointments to the Senate have not gone very smoothly as of late. Anyone who has paid a modicum amount of attention to the news over the past four months is well versed in the sad displays surrounding the appointment of Rolland Burris to the Senate by then-Illinois Governor Rod Blagojevich and the short-lived bid of Caroline Kennedy to take Hillary Clinton's New York Senate seat. These pathetic spectacles would be comical if the issue were not so serious. They surely do not bring dignity or legitimacy to the United States Senate!

To correct a process that is so obviously broken, California Senator Russ Feingold has introduced a proposed constitutional amendment that would mandate special elections to fill open Senate seats. This would bring the filling of Senate vacancies into line with the process ordained by the original Constitution for the filling of House vacancies and remove any doubt or question around senatorial successions. Where the people vote in open, free and fair elections, there is no question regarding who their legitimate representatives are.

If you haven't noticed by now, one of my hobbies is to consider the pros and cons of proposed amendments. Since the Senate and House Judiciary subcommittees will hold a joint hearing on this proposed amendment today, now seems as good a time as any to evaluate this amendment.

Feingold's proposed constitutional amendment reads as follows:

IN THE SENATE OF THE UNITED STATES

January 29, 2009

Mr. FEINGOLD (for himself, Mr. BEGICH, and Mr. MCCAIN) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relative to the election of Senators.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article --

`Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

`Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.'.

I have stated a preference for repealing the Seventeenth Amendment and going back to the original constitutional design where State Legislatures filled their State's two Senate seats. My support for a constitutional change to mandate special elections to fill open Senate seats might seem contradictory to this stated preference, but I also realize we live in a world in which the Seventeenth Amendment will not be repealed any time soon. Elections are the ultimate process that governs our country, and of all of our governing institutions, elections are, next to the Constitution itself, the most foundational and legitimate.

In addition, appointment by one man (the Governor) as opposed to appointment by a State's Legislature is a difference of kind and hardly comparable. The original constitutional senatorial selection mechanism was part of a broader scheme of federalism that the Founders put in place (the other components of federalism being the electoral college, state militias, the Second Amendment, juries, courts, and the constitutional convention process). When all of these parts worked together, they served to maintain a federal / state balance. Many of these components of the Founders' federalism have either vanished or fundamentally changed however, and senatorial appointments by Governors do nothing to move us towards a federalism re-balance.

The most prolific objection I have heard against Feingold's proposed amendment is the terrorism question - "What if terrorism or some other calamity killed every member of Congress? At least Senators could currently be appointed, but Representatives have to be elected. Mandating senatorial special elections would make it impossible to quickly reconstitute the Senate, just as it is currently impossible to reconstitute the House."

Honestly, if this is the best the opposition has, then this amendment should easily pass. In over 200 years of history, a desperate Revolutionary War that the Congress led, a War with the British that saw Washington D.C. burned to the ground, a devastating Civil War that tore the country apart, two World Wars, multiple economic crises, a Cold War fraught with the very real possibility of nuclear annihilation, and the terrorist attacks of 9/11/2001, are we *so* afraid of some theoretical event that has very little real chance of succeeding in the first place? Do we design our normative, fundamental constitutional principles around the most extreme of statistical possibilities?

Even in the unlikely event that such an attack did take place *and* was successful in completely destroying the Congress, special elections could be held within two to three months and voila la! You suddenly have a reconstituted Congress that is untainted by questions of legitimacy and free of suspicion over who it speaks for - special interests or the People. Even in the most dire of circumstances that threatened our nation's survival, President Lincoln prosecuted the War against the Confederacy for months before Congress convened in the summer of 1861. Elections are *not* a luxury that we suddenly throw out the window when we think they are no longer convenient. They help define who we are as a people and how we come together in consensus, particularly in tough times. If we want efficiency to inform our fundamental design of governance, might I suggest Machiavelli's The Prince?

So Feingold's constitutional amendment is a much needed corrective to a major defect in the Seventeenth Amendment. If we are going to keep direct elections of Senators as our preferred method of selection, we are better off applying that method in all cases, especially where emergencies are concerned.

The Era of National Services

Mort Kondrake ponders that a new "era of national service" might be upon us with the energized leadership and network of President Obama. This would dove-tail nicely with Larry Sabato's call for a Universal National Services (UNS) amendment to the Constitution. Of course this is a controversial call, because the typical cry from the far-Right that "this is an un-American imposition of government authority upon individual liberties" has predictably surfaced already. The din of the shrill would become nearly unbearable if and when a serious debate ever broke out on Sabato's proposal.

Rather, UNS is compatible with American notions of liberty if liberty is seen as freedom exercised within the context of responsibility and care for our neighbors and the "least of these," to use the scriptural phrase. Liberty practiced within a context of responsibility reinforces the other American values of life and the pursuit of happiness (property), as the young adults who go through a period of service to others will learn more about what it is to be a citizen of the United States and to be a human that gives to the world rather than taking from those around him or her. Additionally, the work of volunteers would benefit many people through direct help and improved infrastructure -- buildings, streets, freeways, forests, aid centers, homes, and various other property.

David Broder on Gerrymandering

Op-ed columnist David Broder has an article discussing the distorting effects of gerrymandering on our elections and political system.

As a number of scholars have pointed out, the scarcity of real competition in nearly all districts has many consequences -- all bad. It makes legislators less responsive to public opinion, since they are in effect safe from challenge in November. It shifts the competition from the general election to the primary, where candidates of more extreme views can hope to attract support from passionately ideological voters and exploit the low turnouts typical of those primaries.

Gerrymandered, one-party districts tend to send highly partisan representatives to the House or the legislature, contributing to the gridlock in government that is so distasteful to voters.

Broder mentions two states, Iowa and Washington, "have instituted nonpartisan or bipartisan redistricting systems, and have been rewarded with much more competitive House races". This is a good idea as far as it goes, and I would encourage all States to adopt such a scheme. Nevertheless, I've been around long enough to know politicians, and politicians do not easily relinquish such powers as the ability to draw congressional districts.

Kelly and I have long been considering the value of a constitutional amendment to remedy this distasteful practice that might provide the motivation politicians would need to reform their drawing skills:

Congressional districts must be based entirely on existing political boundaries, excluding boundaries solely used for voting purposes.

The idea is that congressional districts must be based on boundary lines that already exist for sovereignty or governing purposes. The spirit of the proposal is to force county lines, city borders, river boundaries, etc to be the basis for drawing districts, which would prevent the arbitrary (skillful) slicing and carving of population-dense areas to create "safe-seats" for one Party or the other. The wording of the amendment might need to be tweaked to ensure the spirit is secured in its interpretation, as the use of jurisdictions like school districts or home-owners association boundaries is not what we have in mind as "existing political boundaries."

So while the wording of the amendment might need to be tightened some, the spirit of the idea would give the Constitution teeth to force a return to fairness and adequate representation in our system. I dare say it would also help increase participation in the political system and voter turnout.

Proposed Amendment #5: Flag Desecration Amendment

The Supreme Court issued one of its landmark decisions in 1989, Texas v. Johnson, in which the burning of the American flag was protected as free speech under the First Amendment of the U.S. Constitution. The Congress responded by passing the Flag Protection Act, and the Supreme Court followed up by declaring the new congressional act unconstitutional and reaffirming the right to burn the flag in U.S. v. Eichman in 1990.

Since these decisions, the issue of flag burning has been an open soar festering on the American psyche. We are conflicted in that we want to respect the rights of minorities and individuals, especially rights as fundamental as free speech and the ability to protest governmental policy and action. Yet we also hate this particular form of speech because it cuts to the very symbolism of who we are as a nation and a people, a legacy of which we are, in general, very proud.

Congress responded throughout the 1990's by attempting to pass a constitutional amendment that would outlaw desecration of the flag. While the overwhelming majority of Americans and members of Congress supported the proposed amendment, a passionate minority spoke out and campaigned against the flag burning amendment. It was defeated or killed several times in the Senate after passing in the House of Representatives.

There are several problems with the proposed amendment considered by the Congress, the chief of which is how to craft a legal definition of a flag that wouldn't turn U.S. Attorneys into petty prosecutors and make us the laughing stock of the world. Would a T-shirt with an American flag on it be covered by the proposed amendment? If I threw such a T-shirt away, would that be considered a desecration of the U.S. flag? What if I had a bumper sticker of the flag on my car, and the sticker got scratched? Would I then be subject to prosecution?

While these hypotheticals might seem silly or far-fetched, they are not outside the realm of imagination, so people in power could twist the provisions of such an amendment if they wished to make political rivals go away. Or at the very least, to make life inconvenient for them. So the trick might be to craft constitutional wording that would express the importance of the flag as a symbol of America and her ideals while confining what might be considered a flag for the purposes of the amendment to a few, well-defined set of objects, such as flags that have actually flown over U.S. government installations (e.g., embassies, forts, legislative chambers, courthouses, etc.) or used in U.S. service (e.g., in military action, handed over to U.S. veterans or families, etc.). This last hedge would protect the provisions of the amendment from being used for blatantly political purposes while protecting the right of an individual or group to burn other representations of the U.S. flag in protest (or other actual U.S. flags that the burner owned or made himself). In short, the American people would be able to enshrine the importance of our flag as a symbol of the United States in a way that does not abridge individual's First Amendment rights.

With these purposes in mind, we would propose the following wording for a Flag Desecration Amendment to the U.S. Constitution:

Congress shall have the power to prohibit the physical desecration of any flag of the United States that has flown in an official capacity over United States property.

The Proposed War Powers Amendment Revisited

Earlier this year, I proposed four amendments that I thought would shore up areas of deficiency in the U.S. Constitution, the first of which was a proposed War Powers Amendment. As with any set of proposals, these were meant to be conversation starters, not the final, definitive word on the issues at hand. In my proposed War Powers Amendment, I contended that a revision of the language around Congress's power to "declare War, and grant Letters of Marque and Reprisal" is required to clarify that only Congress has the power to bring the nation into a war. My proposed language of clarification is as follows:

The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

As I have allowed this to marinate in thought and analysis these past few months, I am not sure that this is the most effective way to patch the system of war powers set forth in the Constitution. Specifically, my concern is two-fold:

1. The wording of the proposed amendment does not allow for any Presidential action in cases that are generally accepted as inherent to the President's "defensive" war powers, e.g., responding to an attack on U.S. embassies, mounting rescue operations for U.S. citizens taken hostage abroad, or engaging in overseas surveillance activities.

2. The most effective checks and balances are those that are procedurally-based. Relying on different or more words to control Presidents who ignore words already in the Constitution probably wouldn't yield the results that are needed to restore balanced war powers between Congress and the Presidency.

I recently read the War Powers Initiative, published by the Constitution Project, which analyzes the current state of war powers among the three branches of the U.S. government and gives several Recommendations for restoring balance. Not one of these Recommendations proposes a new constitutional amendment. In the view of the War Powers Initiative, the Constitution already has all the tools that Congress and the courts need to reign in presidential war-making. In the words of the report, Congress's authority to "declare War [and] grant Letters of Marque and Reprisal" is an exclusive grant of power over all forms of lesser and greater war making.

According to international law in 1789, a state could declare war either by “word or action,” as the influential political theorist John Locke put it. A state publicly announced the state of war “by word” by making a formal declaration of war
and delivering it to the enemy. A state initiated a state of war “by action” simply by committing an act of war.... Although Congress, as a legislative body, cannot itself also commit an act of war, it can authorize the President to act instead. The assignment of the Declaration power to Congress thus gives it not only the power to announce a state of war by formal declaration, but also to pass legislation authorizing the President to initiate war by using force. Furthermore, the Constitution also vests in Congress the authority to grant Letters of Marque and Reprisal to privateers to use force or to seize enemy property in retaliation for an injury to the United States.

So if a proper understanding of the current wording of Article I, Section 8 would resolve any confusion over Congress's role in initialing war and the President's required reliance on Congress for such an initiation, then trying to add to this wording might run the risk of constitutionally altering the President's ability to respond militarily to situations thrust upon the United States.

So while I am inclined to agree with the War Powers Initiative report that different constitutional language would not help matters in this area, I have been thinking of a different War Powers Amendment that might be helpful in restoring congressional involvement in decisions to both go to war and to stay at war. My revised War Powers Amendment is centered on the idea of writing into the Constitution the two-House legislative veto provided for in the War Powers Resolution. The following is my own suggestion to start the process of crafting such an amendment:

At any time that United States military forces are engaged in hostilities outside the territories of the United States, such forces shall be removed from the theater of such hostilities by the President if the Congress so directs by majority vote of both Houses.

Congress currently possesses the real power to cut off the President's ability to conduct military operations simply by not passing a bill funding those military operations. The leadership of either House of Congress or a determined minority in the Senate could refuse to allow an Iraq War funding bill to be voted on, and viola! The President would run out of funds in a few months and would have no choice but to withdraw American forces from Iraq.

Odds are low, however, that either Party will resort to cutting off funding to stop a war. The Party of the president does not want to be seen as disloyal to the president, and the opposition party does not want to be viewed as against the troops. While this is a false alternative, the desire among legislators to be viewed as patriotic Americans will color these types of questions for the foreseeable future. We could chalk this up to weak political will among Representatives and Senators, but that doesn't bring us any closer to checking the president's de facto war-making ability.

One could argue that additional war powers checks on the presidency are risky and unnecessary: risky because new checks might compromise his ability to defend the nation; unnecessary because the electoral college encourages the election of moderate presidents. After all, no president has engaged in war-making that has not at least been implicitly approved by Congress (even if only through passage of appropriations).

I think this is a weak argument, along the same lines as "you must fund this war to support the troops in the field." It's a red herring that its advocates parade about in order to smokescreen the underlying issue. If a war or some lesser military operation is vital to the national security or defense of the United States, then the executive branch should have no problem getting the support of a majority of the people's representatives in Congress. If a majority of both houses of Congress are for a war, then the majority of the American people probably support said war. If the American people turn against a war, they will probably elect the opposition Party to power with a mandate to stop the war, as they did in 2006 when they turned the Congress over to the Democratic Party for the first time in twelve years. And any war that does not have the majority support of Congress and the American people will generally be a war whose continuation will damage the United States more than its end.

President Bush was given authority by Congress in 2002 to wage war in Iraq, so all of those who label the Iraq War as "Bush's war" are engaging in nothing but unhelpful polemic. President Bush received the approval of Congress to go to war against both Afghanistan and Iraq, unlike President Clinton did when he conducted the 1999 air campaign against Yugoslavia. Nevertheless, public sentiment has soured on the Iraq War for several reasons (incompetent execution of the war after the fall of Saddam Hussein and continued in-fighting among sectarian groups in Iraq, to name two), and Congress seems powerless to do anything to effect the situation. Congress has seen limited success through its power of the purse in at least applying pressure, as evidenced by the adoption of the surge strategy around the end of last year. But the President's ability to veto any war funding bill with constricting conditions leaves Congress with the same false alternative that they cannot politically work around.

The idea of my new proposed War Powers Amendment would be to give Congress one more alternative in its chest of war powers. The President conducts the day-to-day execution of military operations, but he is not the sole decider of when the country should be committed to war. The Constitution requires the collective judgment of Congress to be sought before the country goes to war, and the collective judgment of Congress should be decisive in keeping the country at war. So if we could decouple the power of Congress to instruct a President to end a war from debates and perceptions around "funding the troops in the field," then perhaps Congress might find the political will to fulfill its constitutional duty to be a partner in the conduct of the nation's wars. This is the aim of this newly proposed amendment: if both Houses of Congress pass a resolution instructing the President to remove U.S. military forces from a theater of hostilities, then that resolution becomes law, not subject to a veto from the President.

This amendment would also carry a couple of other benefits: the power of the president to conduct lesser military operations could be constitutionally tolerated without fear of executive excesses leading the country into protracted, unpopular wars. The executive's hand is free for the short term (most Americans generally support this power, even if some operations like the 1999 Kosovo War are constitutionally suspect) while providing a relief valve that Congress can employ if a majority of both Houses can be convinced that the president has gone too far in some particular venture.

Another benefit is that this amendment would undoubtedly increase a president's willingness to negotiate matters of war strategy with Congress in the first place. A president would not wish to risk the ire of Congress if Congress has this procedural check at its disposal, so he would, I think, seek to make Congress more of a partner from the start. Members of Congress who have their own "skin in the game," so to speak, would see less of a need to resort to this power to legislate the end of a war.

As a concluding note, it is worth highlighting the inclusion of the phrase "outside the territories of the United States." This amendment would not apply to military deployments and operations within the United States itself, as this is really a different kind of situation. U.S. military forces would be operating within the United States in a non-training mode for two reasons:

1. combating an invasion force or repressing an insurrection, or
2. enforcing domestic laws

The first is a legitimate use of the Armed Forces. However, executive excesses would probably be tied to the second scenario, as might be the case if a President sought dictatorial powers through the imposition of martial law. This danger can not be checked by so simplistic a mechanism as envisioned by this amendment. A more general sweeping amendment governing the use and application of states of national emergency would be more appropriate. Perhaps the Posse Comitatus Act is enough to protect against this nightmare vision. In any case, I am not prepared at this time to propose constitutional protections for it.

Direct election of the President

There was some discussion in the 1970s of a proposed constitutional amendment to elect the president by popular election. One version of the proposed amendment can be found online here: 1977 version.

The reasons for desiring a change to the way Americans elect our President are obvious. "One man, one vote" has become the default election paradigm through various court rulings, constitutional amendments, and evolutions of our democratic traditions over time. That the states with smaller populations have proportionally more votes than the people of larger states through the electoral college seems inherently unfair to us.

Another reason to get rid of the electoral college is the problem of the faithless elector. While this has not historically been much of a problem, the possibility exists that a faithless elector or two could change the outcome of a presidential election in a very tight race, where one or two electoral votes separates the candidates.

The electoral college is not the institution that the Founders envisioned that it would be, if it ever was. The Founders meant for the electors to act as a "buffer" to the passions of the general public. They were to represent the people, but at the same time, they were to supply wisdom and deliberation to the selection of the Republic's next Chief Magistrate. Now, however, when a Party's nominee wins a state in the general election, said Party will choose loyal activists who pledge to vote for the Party's nominee when the electoral college formally meets. The electoral college has, in essence, become an out-of-date formatily.

As discussed in a 1970 report issues by the Senate Judiciary Committee, there are several benefits that the electoral college brings to American presidential elections:

• encourages the building of broad, geographically-dispersed majorities to elect a candidate that can win a majority of the electoral college, leading to more stable, moderate Governments that respect the rights of minorities;


• important support for maintaining federalism and the role of the States in the federal government (if we repealed the Seventeenth Amendment, I think this would be less of a worry);


• structurally enforces the U.S. two-party system;


• contains recounts to specific states or election precincts;


• allows control and responsibility of election process and administration to be maintained at the state and local levels, rather than at the federal level.

While I'm not sure about the claim that going to a direct election scheme would remove an underpinning of the two-party system, the support the electoral college lends to federalism and the containment of electoral recounts is obvious. Combined with the fact that State Legislatures have established direct election as the method by which their respective State electors are chosen (a power granted State Legislatures under the Constitution), and we can see why there is not the supermajority of support required to pass a proposed constitutional amendment to institute the direct election of the President. In essence, there are fifty state elections for president, rather than one national election. For the benefits that the electoral college bring, I'll be OK with the individual voter of Wyoming and Iowa having a greater proportional influence than the individual voter in Texas (my home State), New York and California.

The Unites States is, after all, a democratic republic, not a pure democracy.

Live and let Die

Craig and I have had many discussions about whether the death penalty is appropriate and how it should be implemented.

Pro-Death penalty advocates claim that having capital punishment serves as a deterrent to crime.
Pro-Life advocates claim that all life is sacred and that we don't have the right to end anyone's life no matter how cold-blooded they might be.

A recurring argument is that the justice system allows too many truly innocent people be executed. This is one reason some State Governors have suspended capital punishment in their States pending further review.

Add to all this the times the Supreme Court of the United States (SCOTUS) has weighed in to determined whether capital punishment violates the "cruel or unusual punishment" clause in the Constitution. What is a pragmatic citizen to do?

How does the State choose between the principles of Justice and the Sanctity of Life? There will never be peace while the majority imposes the primacy of one over the other. I could write an in-depth treatise on this subject, and hopefully one day I will do just that, but for now, what action remains?

I suggest an Amendment to the U.S. Constitution that reflects the following intent:

States shall not impose Capital punishment without the testimony of two credible individuals who identify the accused as responsible for the death of another person, including by bearing false witness.

The idea is by having this in the Constitution, States have more leeway around 'cruel and unusual punishment' on one hand. On the other hand, by setting the legal bar very high, requiring two witnesses to the crime (mirroring the current constitutional bar for finding a person guilty of treason), we take away the vast majority of cases where the potential to execute the innocent exists.

Thus, our society will be saying that we believe in Capital punishment as well has 'innocent until proven guilty' and define the interaction explicitly. If two people conspire to frame someone for a capital crime there is only so much the State can do to protect society from those evil few who would bend the State's power do their personal bidding. When these false-witnesses are revealed, the State still will have the possibility of extracting Justice for the innocent. By explicitly giving the States the power to impose Capital punishment, we allow those States that so desire the option to use Capital punishment while allowing the People of any State the power to renounce it as they will.

This is just the sort of approach that seems to be right at home in the design of our framework for governance.

Proposed Amendment #4: Congressional Power Amendment

The Text:

Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.

The Problem:
Our federal government was designed by the Founding Fathers to be one of limited, delegated powers, operating in spheres of life that rarely effected the day-to-day lives of the American citizenry. The federal government was there to coordinate foreign affairs, defend the Union from foreign attack and insurrection, and regulate interstate commerce. This list is a broad-brushed summary of the areas of responsibility given to the Congress in Article I, Section 8, but it is duly representative to be considered complete.

James Madison lays out this vision in no. 38 of The Federalist Papers:

But if the Government be national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers. The idea of a national Government involves in it, not only an authority over the individual citizens; but an indefinite supremacy over all persons and things, so far as they are objects of lawful Government. Among a people consolidated into one nation, this supremacy is compleatly vested in the national Legislature. Among communities united for particular purposes, it is vested partly in the general, and partly in the municipal Legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controuled, directed or abolished by it at pleasure. In the latter the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them, within its own sphere. In this relation then the proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general Government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword, and a dissolution of the compact; and that it ought to be established under the general, rather than under the local Governments; or to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated.

And again, in The Federalist no. 45, James Madison writes:

The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.

The operations of the Federal Government will be most extensive and important in times of war and danger; those of the State Governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State Governments will here enjoy another advantage over the Federal Government. The more adequate indeed the federal powers may be rendered to the national defence, the less frequent will be those scenes of danger which might favour their ascendency over the governments of the particular States.

Due to the contingencies of history and the convenience of the moment brought on by various national crises or challenges, the powers of the national government were incrementally expanded until they encompassed every sphere of everyday life. Even the regulation of water flow in our houses is not beyond the reach of the federal government. And all without one word being added to the U.S. Constitution!

The reality of what the federal government is versus what it is delegated by the federal Constitution are sorely out of line, and while most do not see it as any big deal, it will one day come back to haunt us if we do not bring the two back in line. Since reducing the federal government back down to the size envisioned by the Constitution, we are proposing an amendment to bring the Constitution in line with the realities of the day. It must be noted that while we would not have, all things being equal, advocated the current proposed amendment, but all things are not equal, the nation is where it is, and it is our view that less damage will be done in the long run if we amend the Constitution to reflect this fact.

The Explanation
Section 1. Congress shall have the power to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States.
Rather than continually trying to amend the Constitution to keep up with the ever-changing and evolving needs of the country through lists of explicitly-delegated congressional powers, this section would recognize what Congress has become: the sovereign law-making body is all spheres of American political and economic life. The wording of this proposed amendment is taken from wording originally posed by the Constitution's Framers themselves.

There is still a threshhold here that would be intended to protect the competent jurisdictions of the States, but the standard is less rigid that the current one set forth by Article I, Section 8. The realm of the Congress would still be problems or questions of an interstate and/or national scope. When combined with the Tenth Amendment and the proposed amendment to Repeal the Seventeenth Amendment, this would allow the flexibility and practicality of politics to determine the appropriate line between federal and state jurisdiction for whatever specific questions face the country at any given point of time.

This section would also remove any uncertainty regarding the proper scope of congressional power and legitimize the expanded role Congress has taken over the past 100 years. The original list of delegated powers has been stretched beyond recognition, so there is no reason to suspect that a newly updated list would fare any better in restricting congressional power. What is needed is built-in checks and balances, pitting the jealousies of each of the branches and the States between each other.

Section 2. The spending of monies levied among the several States shall not be spent in such a way as to benefit a single State or small number of States.
Since Section 1 would potentially open the doors of congressional power to any and every kind of problem, procedural checks will be important to help States or groups provide a counter-weight to Congress. While the Framers limited the powers of Congress to those listed in Article 1, Section 8 as one means to check congressional overreach, this list has proven to be nothing more than a "parchment barrier" (to use Madison's turn of phrase) as the necessary and proper clause of the Constitution has been used to stretch the originally-delegated congressional powers beyond any recognized shape.

This section would provide one such procedural check to the misapplication of congressional power by prohibiting the spending of money in ways that do not benefit the nation (or a broader group of States) as a whole. This would also have the added benefit of killing much of the present-day "pork barrel" spending that plagues federal budgets. If this provision were violated by the Congress, the States or interest groups would be able to sue the Federal Government is court in order to prevent the spending of the monies that were budgeted in violation of this section.

Section 3. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
Section 3 is an adaptation from similar clauses in state constitutions that regulates how the Congress considers bills, adding another procedural check to protect against an enthusiastic Congress. Too many laws are passed that cover a wide-range of subjects, many having nothing to do with the main purpose of the bill. Every bill that is considered should relate to one and only one topic, and the topic that is considered by the bill should be easily understood and communicated.

Section 4. No law shall be revised or amended by reference to its title; but in such case the act revised, or section amended, shall be re-enacted and published at length.
This section carries forward the spirit of Section 3, regulating the revision and amendment of existing laws by Congress. The goal, again, is to bring clarity to what it is the Congress is considering and passing.

Section 5. Congress shall pass no law that does not contain a concise and definite statement of the constitutional authority relied upon for the enactment of each portion of that law.
While this might seem an obvious requirement and has been largely adhered until the recent past (for example, Congress and the Roosevelt Administration went to great pains to lay out the constitutional grounds for the Social Security Act), this would formalize the practice and ensure, at a minimum, that Congress at least gives a passing thought to the Constitution when considering legislation.

Section 6. No person who has been convicted of a felony (unless pardoned) in their State of residence shall be eligible to hold office as a senator or representative, and any sitting senator or representative convicted of a felony in their State of residence shall not be allowed to continue in their office. Senators or representatives who have been indicted of a felony shall not have the right to vote on any business before the House to which they belong. Indictments that do not result in a conviction shall restore the member's voting rights.
Section 6 is in some respects a rider to the amendment, but one we think is necessary to restore confidence in Congress. Currently, the onus is on the House and Senate to vote to remove one of their members convicted of a felony. This section will make mandatory the removal of a member of the House or Senate that has been convicted of a felony.

In addition, too many representatives and senators have wielded too much power while a cloud of suspicion hangs over them. While we wish to respect the American principle of "innocent until proven guilty," the proceedings of Congress must be preserved from the stain on credibility that even an indictment can bring. We recognize that this provision could easily be abused by a rogue district attorney in the senator's or representative's home state, so we would be open to tailoring this section to include protections against such possibilities (e.g., restricting the area covered by this provision to the home district, in the case of a representative).

The Salve of Time

In his book Constitutional Reform and Effective Government, James L. Sundquist considers constitutional reforms that would enable the branches of the U.S. government to work together more effectively, particularly the political branches - the Senate, the House and the president. His premises are that (1) the constitutional structure of our government encourages conflict and debate and this can be bad, but worse, (2) the cycle of our elections leaves our government open to debilitating crisis. One of his less-radical proposed solutions is to add some form of "safety valve" available to the president and the Congress in the event that they are hopelessly deadlocked on some major issue or the president is so unpopular that keeping him in office is detrimental to the country. After exploring several alternatives, Sundquist settles on giving the president or a constitutional majority (a majority of total membership) of either the House or the Senate the power to call special elections, in which the total membership of both houses of Congress and the presidency would be up for election for full terms. The idea is that this would give one of the three players the option to throw everything to the People so that Washington could be "reset," thereby resolving the issue causing deadlock (either disagreement on an issue or an unpopular or ineffective president) and enabling the government to return to effective collaboration.

Part of me is drawn to this type of proposal. It has a certain resemblance to the safety valve available in parliamentary systems in which the legislature can hold a vote of no-confidence in the Government, in which case the government ministers must resign or the head of state must dissolve the legislature and call for new elections. If a Government has become ineffective or a prime minister unpopular, then there is a mechanism to relieve the pressure and let the People speak through new elections.

This is the type of mechanism that Sundquist is looking to apply to the American context. Neverthless, a larger part of me doubts the wisdom of such a proposal. Time is the safety valve that the Founders built into the American constitutional system. With the entire House of Representatives and one-third of the Senate elected every two years, elections are close enough together to (theoritically) keep our representatives and senators accountable and responsive to the People. If it be a mid-term election, the People can give the president more power if they approve of his job performance by giving him more supporters in Congress, or the People can diminish and cripple the president if they disapprove of his job performance by giving the Opposition the majority in Congress, as happened in the elections last November. A congressional Opposition majority can do a lot to thwart an ambitious president (e.g., derail his domestic priorities or defund his foreign initiatives). The worst that can result is an ineffective government, which I do not think is necessarily a bad thing.

If there be any weakness with the American system, however, it is the possibility of a bad, ineffective, or unpopular president remaining in power for two or three years until the next presidential election. Short of an impeachment (which this country sees as a traumatic, destabilizing, debilitating act) or the provisions of the Twenty-fifth Amendment for removing a disabled president, there is no way to force a president from office for "maladministration" (however that term is defined). This design serves a purpose of allowing the president time to govern without constantly being beset by looming elections. If a president truly needs to be forcibly removed from office, I can't think of a situation that impeachment or the Twenty-fifth Amendment wouldn't cover. As noted above, maladministration can still be countered by giving the Opposition the majority in Congress at the mid-term election or voting the president out of office at the next presidential election.

If it is only deadlock between the president and Congress that needs to be relieved, only three years at a maximum (assuming a president usually gets most of what he wants during his first year in office) would pass until the next election. Many people point to the inability to remove President Bush from office now as "proof" that some sort of mechanism is needed to force his early exit, but the People elected him to a second term in 2004. He also still retains a base of support that enables him to effectively govern and build political coalitions. At some point, the People deserve the Government they elected, and they have to live with it.

It would seem that proposals such as Sundquist's calling of special elections would introduce ineffective government through the constant threat of new elections. It would seem that such a proposal would lead to debilitation if special elections are called more often than Sundquist thinks (i.e., once or twice in a century). Politicians would be constantly campaigning, lea ing little or no time for actual governance. Democracies in Italy and Israel are notoriously unstable because the Government does not have the distance necessary from the People to allow it to do unpopular things that are necessary from time to time when governing is necessary.

If a president needs to be removed, Congress should take the political risk necessary to impeach him. Or the provisions of the Twenty-fifth Amendment should be envoked. Otherwise, allow the salve of time to work its magic.

Proposed Amendment #3: Balanced-Budget Veto Amendment

The Text:

Section 1. For purposes of this article, the budget of the United States for any given fiscal year shall be deemed unbalanced whenever the total amount of the debt of the United States held by the public at the close of such fiscal year is greater than the total amount of the debt of the United States held by the public at the close of the preceding fiscal year.

Section 2. If the budget of the United States is unbalanced for any given fiscal year, the President may separately approve, reduce, or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the legislative and judicial branches of the United States Government, and which is presented to the President during the next annual session of Congress.

Section 3. Any legislation that the President approves with changes pursuant to section 2 of this article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed under section 7 of Article I for bills disapproved by the President, separately reconsider those reduced or disapproved monetary amounts.

Section 4. The Congress shall have the power to implement this article by appropriate legislation.

Section 5. This article shall take effect on the first day of the next annual session of Congress following its ratification.

Section 6. This article shall be inoperative unless it shall have been ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by Congress.

The Problem:
After a brief period of budget surpluses in the late 1990's, Congress returned to excessive deficits in this first decade of the twenty-first century. This mostly uninterrupted pattern of budget deficits are fueled by large-scale fear of tax hikes and congressional unwillingness to cut spending and pork, and it has become apparent that this is an institutional problem. The only constitutional check to control congressional-spending binges is the presidential veto, but it has proven too blunt and clumsy of an instrument. The item veto is a solution that has worked with some degree of effectiveness at the State level, but even its potential impact on budget discipline would be minimal without some sort of incentive built in for Congress to impose this needed discipline on its own.


The Explanation:
Rather than attempt to explain the need for this amendment, I'll defer to this excellent analysis offered by the CATO Institute.

Proposed Amendment #2: Repeal the 17th Amendment

The Text

Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

The Problem
The Constitution originally provisioned for state legislatures to select each state's two senators. The idea was for the Senate to represent the interests of states as states, not simply as another chamber representing the same constituency as the House of Representatives. The Federalist Papers speak time and again of checking the passions of men and balancing the branches of government by using competing interests and differing power sources to prevent one group from gaining domination. A Senate that was, in essence, composed of ambassadors from the several States provided a balance in the deliberation of federal legislation and foreign policy because the origin and composition of its membership was different from that of the House.

Corruption in the senatorial selection process and deadlocked legislatures led to states going years without representation in the Senate and the perception that the Senate did not represent the interests of the People. Agitation for changing the way Senators were selected grew throughout the 19th century, culminating with the Progressive Movement of the early twentieth century and the passage of the Seventeenth Amendment to the U.S. Constitution in 1913. Direct election of U.S. senators was instituted, removing the place of the States in the federal scheme (left only with the chance to lobby, negotiate, or sue) and effectively turning the Senate into an extension of the House of Representatives.

There are several areas impacted by the passage of the Seventeenth Amendment. I will review each of them in turn, but the affected areas as I see them are as follows:

• Nature of the Senate


• federalism


• Campaign finance

Nature of the Senate
Since the Senate derives its base of power and support from the People, the Senate is no longer "a salutary check on the government" (Federalist 62) because senators are not independent of the passions of the times or the direct influence of the public. A senatorial selection process driven by state legislatures in careful deliberation and cool contemplation has a better chance of producing a Senate of the brightest minds and most talented people from all segments of society than do yet another round of direct elections driven by the same old political process. Politics has an important place in our democratic republic, but so does competent thought, careful debate, and independent questioning of the prevailing opinion.

Witness,

• The Senate no longer considers the constitutional appropriateness of legislation, affecting the balance of power between Washington, D.C., and the states and arguably leading to a more active Supreme Court, which finds itself ruling on legislation that probably never should have been passed;


• Rather than the Senate serving as a judicious, independent and legislatively empowered investigative body, independent commissions (e.g., BRAC - the Base Closure and Realignment Commission), study groups (e.g., the Iraq Study Group or 9/11 Commission), and the recently-lapsed independent counsel law are needed when our government needs to transcend politics.

The Senate is effectively a mirror of the House, passing legislation based on its popularity and providing no thought that transcends the petty Talking Points of the day.


Federalism
Since the passage of the Seventeenth Amendment, the growth of the federal government has been exponential and all pretenses of a Congress with specific, enumerated powers as outlined in Article I, Section 8 of the Constitution have been thrown out the window. The "necessary and proper" clause is the constitutional limit of Congress's power, and the definition and scope of this clause are expanded with the needs of the country. There is no longer a structural component of the federal system that is in place to push back on the expansion of federal power and to represent and support the place of the States in the federal system.

A healthy federal system facilitates several things:

• local issues and concerns are managed and decided by local jurisdictions, leaving federal energy free to focus on more national concerns and priorities (witness the manner in which abortion has entangled presidential politics and judicial nominations);


• power is diffused and not concentrated;


• proving grounds for future national leaders among state and local governments;


• competition among the States, encouraging innovation and creative problem-solving;

Beyond the implementation of more parchment barriers in the form of Article I, Section 8 or continued reliance on the shifting sands of the Supreme Court, a structural mechanism to help define the shifting horizons of federal and state power would reinstate federalism as an active, primary part of the legislative process and renew appreciation for its importance to the American scheme of governance.

Campaign finance
The direct election of senators arguably removed the problem of bribery (at least from among the ranks of the state legislators), but now that senators campaign among a wider electorate, the costs of running senatorial campaigns have sky-rocketed. Among elected positions in America, Senate campaigns are second in expense only to presidential campaigns (which are beset with their own issues and problems).


The Explanation
Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
This section simply repeals the provisions of the Seventeenth Amendment and returns the senatorial selection process to the original constitutional prescription.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
The language of this section echoes that of the original selection provisions in Article 1, Section 3. The only additional clause is a specific grant of power to the state legislatures of reappointment of a senator. This is designed to be coupled with the removal clause of the next section to make clear that a U.S. senator would serve at the pleasure of the state legislature that sent her. A senator's primary job in the U.S. Senate would be to represent the interests of her State, as a State.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
The provisions of this section are an addition to the language of the original constitutional scheme. Under this section, a state legislature would be able to remove a senator that it was dissatisfied with or just wanted to replace before the end of the senator's six-year term. As long as the majority of each state legislative chamber voted to recall the senator, the senator's removal would be final and not subject to repeal.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.
In 1866 Congress responded to problems of state legislature bribery and deadlock by passing a law regulating the manner in which states selected their senators. The legislation required that each chamber of the state legislature meet separately and select a senator in open vote. If the houses of the legislature did not select the same nominee, the chambers were then to meet in joint session every day until a senator was selected by majority vote.

Ironically, the congressional act exasperated the very problems it was enacted to solve. Perhaps the requirement for a joint session frustrated the constitutional principle of checks and balances. Or perhaps requiring a majority vote rather than a plurality instantiated an impossible standard. Whatever the cause, the cases of deadlocked legislatures, accusations of bribery, and incidents of lost state representation in the Senate increased markedly after 1866. Congressional meddling toppled the system of senatorial selection that worked relatively well before the Civil War.

This section is included in this proposed amendment to avoid the temptation in Congress to fix every problem in American society through the passage of a new law. Even if state legislatures are deadlocked or beset with bribery and corruption, it is one of the things that should be left to the state legislatures to work out themselves. After all, it is the State itself that would suffer from a loss of senatorial representation, and it would be state legislators who broke bribery laws or committed corruption who would face jail time if proven guilty in a court of law. Let the political and judicial processes apply the pressure needed to move past these problems.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
This last section is in place to facilitate transition in the case that this amendment is ratified as part of the Constitution.

Other resources

• Democratizing the Constitution
  
• FindLaw Forum: Should the 17th Amendment be repealed?
  
• Repeal the 17th Amendment blog

Proposed Amendment #1: War Powers Amendment

The Text
Sect. 1. The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

Sect. 2. The President shall periodically report to the Congress on the status of troop deployments and hostilities in which United States Armed Forces are involved, as well as on their scope and duration, but in no event shall he report to the Congress less often than once every six months.

Sect. 3. Men 18 years of age shall give two years of service to the military branch of their choice or to the peace corps, but acts of conscription beyond this are prohibited unless the privilege of the writ of habeas corpus shall have been explicitly suspended in accordance with this Constitution.

Sect. 4. The Congress shall have power to enforce this article by appropriate legislation.

The Problem
The question of going to war is a grave concern, which involves the entire nation and can potentially alter every aspect of society, as did the Revolutionary War, the Civil War, and World War II. As they play out and unfold, wars that were once popular can become unpopular and deeply divide the populace, as have the Vietnam War and the Iraq War. For these reasons, the Founding Fathers envisioned Congress occupying a central role in determining questions of war and peace and foreign policy.

While British constitutional practice up to the eighteenth century viewed foreign policy and war-making authority to be the prerogative of the crown, the Founders extended their desire for checks and balances and separation of power to matters of war and sought to keep the United States out of unpopular, divisive and unnecessary wars by giving the people's representatives a role in the decision-making process.

Section 8 of Article I of the Constitution gives the Congress the power:

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;


• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;


• To provide and maintain a Navy;


• To make Rules for the Government and Regulation of the land and naval Forces;


• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;


• To provide for organizing, arming, and disciplining the Militia,...

In contrast, Section 2 of Article II of the Constitution provides that the President "shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." So the balance between competing interests is set. The President commands the Armed Forces of the United States, but Congress must fund the military for there to be Armed Forces for the President to command. The President has the ability to quickly respond to military crises, but the Congress must approve a state of war because war changes the legal footing upon which the country operates. The President conducts and controls the day-to-day operation of a war, but the Congress makes the law and rules governing the use of military forces.

Checks and balances are not always convenient, however, and Presidents and Congresses, particularly since the mid-20th century, have conspired to alter the constitutional balance of war powers. With rare exceptions, Congress has increasingly been reluctant to take the possible political heat required to fulfill its constitutional war powers. Rather than a partner in making decisions of war, Congress has become a de facto rubber stamp of Administration actions, passing "authorizations for the use of force" or, worse yet, toothless non-binding resolutions. Only two instances in the past sixty years come to mind in which Congress acted to cut funding to influence U.S. policy in a war situation: in the early 1970's to end the Vietnam War and in the 1980's to end U.S. aid to the Contras in Nicaragua.

In addition to Congress's abrogation of constitutional authority, Presidents have worked to increase their own constitutional power by playing semantic games. Rather, than war in Korea, President Truman engaged in "police actions" under the authority of the United Nations Security Council. LBJ fabricated the Gulf of Tonkin Incident to move Congress to pass a resolution, which the Johnson Administration subsequently used as the legal authority it needed to escalate American involvement in Vietnam. In the wake of the Vietnam War, Congress showed a rare moment of backbone and passed the War Powers Act in 1973, which forbids prolonged military operations without a congressional declaration or resolution of war. Nevertheless, Presidents have repeatedly refused to acknowledge the constitutionality of the Act.

As a consequence, Congress and the executive branch have settled into a new "understanding" that has generally held since the early 1980's; the President is free to use the military wherever in the world he sees fit, so long as he obtains a congressional resolution for "long-term operations" (a rather vague term whose meaning can shift with the circumstances), aka, a war. The underlying problems which have led to this new balance of power are easy to see:

1. In this computerized age with ICBM's and atomic warheads, it is foolish not to maintain a standing army, a situation that the Founders thought dangerous to liberty;
2. Congress is filled with career politicians who are too concerned about "political fallout" to stand up to challenge or shut down presidential military ventures and represent the interests of the people;
3. The lines between the executive and legislative functions are blurring, and too many people view the Congress as a "rubber stamp" to Administration policy, much as it would be if we were set up as a parliamentary system of government;
4. Language has evolved over the past two centuries so that the constitutional language that talks about war is no longer comprehensive enough. There are military activities short of war which are simply not covered by the Constitution, and Letters of Marque and Reprisal are anachronisms that are no longer relevant; and
5. While Congress currently has the power to "declare war," some supporters of presidential power argue that this is different from "making war," which they say is reserved to the President as Commander-in-Chief.

The Explanation
The proposed war powers amendment herein presented would not solve all of these problems. For example, a congressional term limits amendment might be worth considering to address Problem 2. However, it is clear that the language of the Constitution should be updated to cover modern-day realities of the interaction between the executive and legislative branches. A section-by-section analysis of the proposed amendment will outline which of these problems can be addressed if the war powers amendment was ratified.

Sect. 1. The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

This amendment does not alter any of the existing war powers. Congress still funds the military and its operations. This power is in line with the general principle that the legislature controls the purse. The President is still the Commander-in-Chief. In principle, this is an obvious executive action and requires the accountability, energy and efficient decision-making the President has at his disposal. It is simply not possible to conduct a war by committee, least of all by Congress.

However, the brake that the Founders put in place to slow the country's entry into war has worn down to nothing and needs to be reassessed. The language of section 1 is meant to remove any distinction between "make war" and "declare war." Formally declaring war seems to be an old-fashioned idea these days, and sending troops onto the battle field is the act that makes a war - not a congressionally-approved declaration. This section seeks to make clear that however war is "made," the President cannot do it without the express consent of Congress. The last clauses of the section attempt to make provision for emergency situations in which delay and consultation would prove disastrous to the nation, but even this should be reserved for extraordinary situations in which congressional consultation would be sought as soon as humanly possible (facilitated by Section 2).

Sect. 2. The President shall periodically report to the Congress on the status of troop deployments and hostilities in which United States Armed Forces are involved, as well as on their scope and duration, but in no event shall he report to the Congress less often than once every six months.

This section implements, in principle, the reporting provisions of the current War Powers Act. The first section focuses on wars of the traditional sense in an effort to retain the President's ability to respond to situationd that require quick, decisive action. This second section, however, requires reporting for any type of military operation whatsoever (arguably excepting training exercises and war games). The idea is that initial and periodic presidential reporting to the Congress will keep the state of the war front-and-center of the American political discussion. It will also work to keep the Administration above-board in the execution of the war, bringing the conduct of the war into the light of day. Corruption and incompetence are too great a temptation if accountability is removed from the equation.

Sect. 3. Men 18 years of age shall give two years of service to the military branch of their choice or to the peace corps, but acts of conscription beyond this are prohibited unless the privilege of the writ of habeas corpus shall have been explicitly suspended in accordance with this Constitution.

This provision requires every 18-year old male to give two years of military or peace corps service, but beyond this, limits the circumstances in which a draft can be instituted. While this does not directly address war powers imbalances, it would work to change the way Americans look at war. The populace would be more educated in military matters and would have a more direct stake in what our political leaders did with the military - men through direct service and women because they would probably know several people (fathers, brothers, husbands, sons - even other women who voluntarily enlisted) in the military. In addition, limiting the availability of the draft and, by extension, limiting the size of the military, Congress and the President would, in theory, be more cautious about committing the limited resources of the Armed Forces. War would truly be the last resort to commit the precious resources of the military. Of course, this theory is arguable, at best, since this has proved to be a hindrance in committing the overwhelming forces we needed in 2003-2005 to subdue Iraq and defeat the insurgency there. In any case, limiting the draft would still work to protect the people's civil liberties and to limit the power of politicians. Only a situation so dire that would permit the suspension of habeas corpus would be a situation in which the institution of the draft would be constitutionally permissible.

Sect. 4. The Congress shall have power to enforce this article by appropriate legislation.

This section is the obligatory clause that gives Congress the explicit power to implement the provisions of this amendment. Without this, future Presidents would undoubtedly continue to rely on confusion and obfuscation to skirt the constitutional distribution of war powers.

Proposed Constitutional Amendments

This site is dedicated to exploring the theory of political science and governing. We have spent a good deal of time expounding the vision of the Founders and the Constitution, lamenting the lack of commitment to and education of fundamental constitutional principles. Nevertheless, the Founders were not divine, and the Constitution is not scripture. Part of this exploration must also entail consideration of parts of the Constitution that either do not work as planned or have grown antiquated.

I would like to explore this vein of constitutional theory through a new series exploring proposed amendments that might be added to the Constitution to address what we see as defects or shortcomings. I will begin with four proposed amendments, and then the series will be on-going as analysis, discussion, and new ideas percolate to the top.

In the first four entries of this series, I'll adopt a specific format to provide a framework for the discussion. I'll explore the problem that each proposed amendment seeks to resolve, and why I think each respective amendment would resolve it. However, the power of the constitutional amendment process is the collaborative effort involved in drafting, considering, debating, and ratifying the amendment, so any constructive comments, criticism, or suggestions are welcome.

The four proposed amendments that will be under consideration are as follows:

• War Powers Amendment


• Repeal of the 17th Amendment


• Balanced-Budget Veto Amendment


• Congressional Power Amendment