The Finch Formerly Known As Gold

11 December 2005

XXVIII through XXX

The New World Man suggests three Constitutional amendments:

1. I would repeal the 22nd Amendment's term limits for the President. I would provide for more candidates each year by requiring the Senate to nominate one of its members, and governors to nominate one of their number, for President, then letting the political parties nominate others, including the incumbent if they want. I would get minor parties in the door by providing for six debates by law, with participation open to any candidate who gets a certain number of signatures on a nationwide petition. I would require any participant in these debates to be on the ballot for President in every state.

I would provide that candidates for President could only take donations from persons, and must publicize the names and amounts as soon as the check is cashed. There would be no limit to the amount of a donation, but everyone (including the candidate's opponents, who would make sure the public knew) would know exactly where it came from. Finally, I would expand the number of electors to three times the number of Congressmen and Senators a state is entitled to and award electors proportionately to the popular vote in the state — no more winner take all.

While my state has unusually difficult ballot access, I don't think I want the Federal government in charge of regulating something that has always been considered a proper state function. And I'm guessing that the tripling of electors is an attempt to avoid fractions when the proportional electoral votes are doled out, an idea about which I have my doubts.

As to the question of repealing the 22nd itself, I'd rather not have spite (in this case, originally directed at FDR) enshrined in the law of the land. If we're going to have term limits on a national level, let them be on the Congress, where a small percentage of lame ducks every second year will scarcely be noticed.

2. I would keep direct election of Senators, on the theory that I don't want to contract the franchise in the Constitution. But I would provide that a Senator could be recalled by vote of the state legislature and replaced by the sitting governor of the state. Hopefully, this would accomplish a couple things. It would make Senators more interested in doing what their constituents elected them to do; but the recall power would not be abused if the sitting governor had to take his/her place and a special election for governor had to ensue.

I looked askance at this, but he explains further:

I want to be able to recall Senators because they're awfully difficult to unseat themselves. I don't like the 17th Amendment, but as I say, I like the idea of amending the constitution to give people less power to vote even less. The idea isn't to get rid of underperforming Senators, though that's a feature, it's to keep their feet to the fire and incentivize them to represent their states. Does Sen. Ted Stevens act so intractable in the face of significant opposition in his own state to his "bridge to nowhere" if Alaska's legislature can recall him, for example?

This would work in Oklahoma only if someone were able to clone Brad Henry.

Inasmuch as state voters do vote for their governor and legislators, I don't think that repealing the 17th would actually give people "less power to vote."

3. I would provide that Congress' power to enforce the 14th Amendment includes the exclusive right to determine whether a state law violates it, and that no federal court may strike down, nullify or substantially revise a state law as violative of that amendment.

Of these three, this is the one I like best, and were I to make a wish list of my own, this one would be on it. (Besides, it's consonant with the text of the 14th: "Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.") Congress, unlike the federal courts, is answerable to the electorate. And you'd scarcely hear another whimper about "activist judges" and such.

Posted at 11:21 AM to Political Science Fiction


Theoretically, that last one doesn't need a constitutional amendment; Congress could simply legislate, under powers in the pre-Amendment Constitution, that the federal courts shall not exercise jurisdiction over questions of the Fourteenth Amendment.

The only trouble is that sooner or later there's going to be a dispute as to what the "appropriate legislation" means. And anyone who expects Congress to adjudicate that question any better, hasn't been watching.

Posted by: McGehee at 3:57 PM on 11 December 2005

In fact, if you propose either a statute or an Amendment to take away from Congress the option of leaving the actual thinking about the dreck they pass to the Courts, you can pretty much count on Congress to vote it down almost unanimously.

So it wouldn't even get to the point of asking them to adjudicate a dispute about any legislation...

Posted by: McGehee at 3:59 PM on 11 December 2005

The solution to electoral college problems may not be more electors but more fine control of how they're allocated - maybe not proportionally, but by district. I strongly support the Electoral College notion because the math shows that it gives individual voters more power. I wrote about this long ago and think that not enough people realize it, even though the underlying argument hit the national media in 1996. Districting gives every voter more power.

That said, Charles, please don't tell me you're joining the crew of people attacking the 14th Amendment, the one that guarantees everyone "equal protection under the law." John Marshall in 1804 determined that it is the courts, not the Congress, who determines if laws are constitutional, for obvious reasons.

Passing it from one legislative branch to another is no solution - all that does is assure that if people are facing discrimination, they'll have to try to get Congress to take up their case, an impossible task except for those few concerns that own a Congress critter. The entire basis of "equal protection" is that someone can stand up and say "hey, this law treats me differently than other people for no good reason." It's what supported everything from Lawrence v. Texas to Brown v. Board of Education. I understand why wingnuts hate it, but that doesn't make it wrong.

It's like the other current attacks from the racist anti-immigration nutcases who hate the 14th Amendment's clear text that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

They want Congress to pass laws that simply ignore this text and declare that people born in the United States to unfavored parents (like those not in the country legally) are not citizens after all. Such laws are quite clearly unconstitutional - when the 14th Amendment says you're a citizen, Congress can't say you're not - but they don't care. If they don't like your parents, they don't want you as a citizen.

I'm starting to suspect that's just part of a larger attack on the entire 14th Amendment and its protections for people other than white male Protestant Christians. Pretty scary stuff.

Posted by: Matt at 6:31 PM on 11 December 2005

I've seen those immigration suggestions. Congress can't nullify part of the 14th just by legislation — it's unconstitutional by definition — and individual state laws simply aren't going to happen and wouldn't work if they did. (I understand why the idea has been proposed, but I don't like it: it can't be justified except as a temporary measure due to extreme circumstances, and temporary measures are not something one puts in the Constitution.)

Posted by: CGHill at 6:40 PM on 11 December 2005

You'll have to explain, Matt, how -- other than "suspecting" it's a "racist" thing perpetrated by a "wingnut" -- the proposal at issue is an "attack" on the 14th amendment. A helpful starting point would be explaining why Section 5 of the 14th Amendment exists at all.

McGehee: Congress doesn't have to approve a new amendment. The Founding Persons were clever that way. Also, you're killing my fantasy football team, you stooge.

Posted by: Matt at 1:56 PM on 12 December 2005

Migod, it's the Battle of the Matts!

(Where's Drachenberg?)

Posted by: CGHill at 1:59 PM on 12 December 2005