Politics and Public Opinion, Law and the Constitution

Mend it, don’t amend it

Image Credit: Shutterstock

Image Credit: Shutterstock

The Fiscal Times asked several experts, lawmakers, and academics which one change they would most like to see made in the US Constitution. Responses varied for this July 4th “clearance sale” on constitutional amendments. Immediately below was my full set of unamended recommendations:

The simplest constitutional amendment for libertarian-minded fans of limited government would be to shorten the 1st Amendment to just read “Congress shall make no law” and then just stop right there. However, that still would leave unfinished the task of cleaning up the mess already created by many previous laws and their regulatory spawn.

We don’t need just one more key amendment , as much as a better glossary to define and restrain the many open-ended words and phrases in the Constitution’s actual text that provide wide latitude for judicial reinterpretation and expansion far beyond their original meaning. For example, the Article I, section 8 power of Congress to regulate commerce among the several states would need the addendum – “That means Between the states, not just affecting some small aspect of commerce, and we really mean it!”  Or, the Fifth Amendment’s takings clause would need to limit its scope by defining more narrowly what “public” use is. Seemingly simple rules under the Constitution (such as in the Article II, section 2 provision for the presidential power to fill vacancies during “Recess” of the Senate) still can get stretched to the limit until we are back before the Supreme Court to relitigate their plain meaning. And don’t even try to imagine the endless reach of “equal” protection of the laws under the 14th Amendment, as extended to the state government level…  Of course, we can’t get too literal without creating unexpected conflicts (guaranteeing to every state a “Republican” form of government in Article IV, section 4 still fell short – even after the 2010 near-sweep of state houses, perhaps due to the unanticipated gender gap effects of the 19th Amendment).  Was the Tenth Amendment just a superficial afterthought (to provide an even number of items for the original Bill of Rights) or a real check on overreaching federal power?

The larger point is that we once had a pretty good constitution, but that one mostly went into exile many decades ago. At best, the remaining core can continue to provide some structural framework within which runaway government is partly kept in check, but politics trumps procedure over the long run. Each generation has to refight the battles over the proper size and scope of government. Renewing and strengthening the values that uniquely defined the remarkable American experiment in self-governance is a much broader mission than carving out the latest possible amendment that tinkers around the edges. Relying too much on the revealed wisdom of any five Supreme Court justices, and politics through judicial means, can keep us guessing. Expect more constitutional fireworks ahead!

4 thoughts on “Mend it, don’t amend it

  1. I would recommend repealing the 17th amendment, that provided for direct election of senators. The Senate was created to preserve the powers and rights of the states, in essence the Senate was to be a fundamental support for the Federal system of government. That was why senators were chosen by the state legislatures, making the senators answerable for preserving the rights and powers of the state governments. When the 17th amendment made senators directly elected, then senators derived their political power by what they did in WASHINGTON to seem to be bringing home bennies to their constituents. For a hundred years (the 17th amendment was ratified in 1913) senators have been working hard to pull power to Washington where the senators could help wield it, and away from the state governments. Repeal of the 17th amendment would be a major step to restore a Federal balance in our Federalist system.

    • That would go a long way towards reducing the power in Washington and would be a nice step forward. But I would also like to see the courts interpret the Constitution as written and have the states nullify any laws they consider unconstitutional.

    • Just repealing the 17th Amendment would not be sufficient since that action would not solve the problems associated with existing Senators in office and what exactly should happen concerning the time frame it would take to remove them via State Legislature voting. Many have thought about this for years, especially since the extreme and successful lobbying became more ‘apparent’ to the knowledgeable taxpayer. I cannot formulate a plan better than Levin’s repeal/replacement concept of the 17th Amendment in his book “The Liberty Amendments”. Not an advertisement, just a fact. His suggestions concerning election of Senators is based on researchable Federalist concepts, is immanently fair to every state and is, I believe, the most important and easily accomplished way to solve many of our current ‘statist’ government woes.

  2. For example, the Article I, section 8 power of Congress to regulate commerce among the several states would need the addendum…

    How about simply looking at what the word commerce meant at the time the Constitution was written? There are few problems that a dictionary could not fix.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>