Why People Aren’t Clamoring for Constitutional Amendments

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Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

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92 Responses

  1. Avatar greginak
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    says:

    I’ll second and third your observation about many people being completely sure they know the one true meaning  of the constitution. If people are willing to discuss The Big C they are usually certain they not only are experts on 18th century history, etymology and but scholars of Supreme Court history and mind melded with the Sainted Founders.Report

  2. Avatar Tim Kowal
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    says:

    I was just thinking about doing just this sort of grouping, Todd. Thanks for saving me the work!

    I’ll have to think more about all of it, but I tend to agree with your closing remark (as well as much of the rest of the post).  But I also don’t like the idea of SCOTUS being a “constitutional convention in continuous session.”Report

  3. Avatar Ryan Bonneville
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    says:

    I like this post. I think concerns that the Supreme Court is doing all kinds of crazy things to rewrite the Constitution are overblown in general, and I think this really illustrates that most of what we fight about is around the edges anyway.Report

  4. Avatar North
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    says:

    That’s some good writing my Tod. Good job.Report

  5. Avatar Dan Miller
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    says:

    Certainly if DC residents get a presidential vote, then not giving them Senate and House representation counts as a shameful omission as well (either through retrocession to MD, statehood, or something more exotic).  So hopefully that will pass sometime in my lifetime as well.Report

    • Avatar Pierre Corneille in reply to Dan Miller
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      says:

      Kind of off-topic, but since you brought it up:  I’ve wondered if Congress could simply redefine D.C. as the federal buildings where lawmaking takes place and make the rest of what constitutes present-day D.C. just another state through the state-making process.  In other words, the “district” would be the White House, the capitol, the Supreme Court building, and whatever federal administrative buildings Congress wanted to include.  The territory that now comprises the district would a “city”-state, so to speak.

       Report

      • Avatar Dan Miller in reply to Pierre Corneille
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        says:

        I believe it could, and there have been proposals to make this happen.  But good luck getting GOP signoff for two free Democratic senators.  So retrocession would suggest itself as the best option…except for the fact that Maryland would have to consent, and Maryland pols have no interest in adding a bunch of ambitious competitors and upsetting existing hierarchies, or taking responsibility for an area that has a lot of legitimately tough social problems.  So 600K American citizens are denied any meaningful vote in the legislature.  It’s pretty damn frustrating.Report

        • Avatar Pierre Corneille in reply to Dan Miller
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          says:

          I hadn’t even thought about retrocession.  If it makes Maryland feel better, wouldn’t they stand to get an extra HR rep out of the deal?

          At any rate, I do agree with you that the current political limbo DC is in is a shame.Report

        • Avatar Kevin in reply to Dan Miller
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          says:

          Think it would work to placate both the GOP and the Democrats if the federal buildings were severed off per Pierre’s suggestion and then the remainder, along with Prince George’s & Montgomery Counties on the Maryland side, and NoVa on the Virginia side were constituted into their own state?

          That creates a reliably blue state, with its corresponding 2 senators, governor, and at least one, maybe two House reps, while Virginia gets resolidified as a red state and Maryland becomes competitive rather than completely lopsided.Report

      • Avatar James Hanley in reply to Pierre Corneille
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        says:

        simply redefine D.C. as the federal buildings where lawmaking takes place and make the rest of what constitutes present-day D.C. just another state [or retroceded to MD]

        I never thought of that.  What an interesting idea.  I think they certainly could.  In fact there’s historic precedent, as part of the original cession was retroceded back to Virginia in 1847 (which is why D.C. isn’t a complete diamond shape, as originally planned.  This Wiki page, though, suggests there may be a constitutional question related to the contracts clause.  Sounds like a bit of a stretch to me, but then totally new areas of constitutional law that have never been ruled on are dangerous grounds for making any predictions.Report

    • Avatar Alan Scott in reply to Dan Miller
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      says:

      Wouldn’t that be best handled by making the District of Columbia a state?  No amendment required for that.Report

  6. Avatar Michelle
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    says:

    Interesting post. I too like the way you’ve grouped the amendments. It gives a rather nice perspective on them.

    I also agree with your conclusion. There’s a reason why amending the Constitution is an arduous process, requiring widespread support for a given amendment. A constitution that’s constantly altered and amended doesn’t create a particularly stable basis for governance. Most of the amendments proposed these days–defining marriage as between a man and a women, outlawing abortion, outlawing flag burning–tend to be political red meat for a particular group. Requiring a super majority to approve any new amendments helps prevent the political causes du jour from being cemented into our foundation document.Report

  7. Avatar DensityDuck
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    says:

    The reason that the Constitution hasn’t been amended in a long time is that ever since Wickard v. Filburn, you don’t need to amend the Constitution to invent new things the government is allowed to do.Report

  8. Avatar James Hanley
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    says:

    Tod, good groupings.

    My only actual comment is that given the proposed amendments that have been most close to success lately–anti-SSM and anti-flag burning–I’m kind of glad the public isn’t clamoring louder.  (Although I do think I might like another crack at that balanced budget amendment.)Report

    • Avatar Jesse Ewiak in reply to James Hanley
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      says:

      Balanced budget requirements if you’re a sovereign nations are idiotic ideas even if you’re a anarchic libertarian. If you want a balanced budget, pass one.Report

      • Avatar James Hanley in reply to Jesse Ewiak
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        says:

        Jesse,

        “Idiotic” is a strong word.  Do you think I’m actually an idiot, or that anyone who has considered supporting a BBA is an idiot? Do you think  it’s impossible to write a BBA in a non-idiotic way?

        Perhaps you could expand on why you’re so confident it’s idiotic and demonstrate that it’s not possible to respond to those concerns with the way a BBA is structured.

        Oh, and “If you want a balanced budget, pass one,” just ignores all the reasons we don’t actually pass one.  As long as you ignore all the structural causes of something, I’m unlikely to be impressed at your claim to know what idiocy is.Report

        • Avatar Jesse Ewiak in reply to James Hanley
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          says:

          Very smart people have supported idiotic things. For instance, I have no doubt Colin Powell and Donald Rumsfeld are smart people. But, they still supported the Iraq War.

          And yes, I think balanced budget amendments for sovereign nations are dumb ideas. I even think they’re pretty stupid for states though, but I can at least understand the argument. The whole point of a nation is that you can pay for things long-term by borrowing money.

          Yes, people say they want a balanced budget unless they actually see the results. People like the idea that in times of trouble, our government has the flexibility to go into debt.Report

          • Avatar Brandon Berg in reply to Jesse Ewiak
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            says:

            In theory, it’s good for the government to have the flexibility to run deficits in bad times and make up for it by running a surplus in good times. But only if your theory doesn’t account for the way that democratic governments actually behave.Report

            • Avatar Brandon Berg in reply to Brandon Berg
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              says:

              Also, you can get Keynesian fiscal policy without borrowing. The way to do it is to save money during good times first, and then spend down the savings during recessions. Granted that this is functionally equivalent to Keynesian monetary policy, but if the government were constitutionally limited to funding deficits solely with savings from past surpluses, it would have the advantage of preventing out-of-control inflation or borrowing.Report

          • Avatar BlaiseP in reply to Jesse Ewiak
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            says:

            Colin Powell is a DL.   That’s Designated Liar.   Starting with his skim-milk denial of the My Lai atrocities, he’s never opened his mouth but what a lie didn’t spring out.

            As for Rumsfeld, he’s just a ninny who saw too many war movies.Report

          • Avatar James Hanley in reply to Jesse Ewiak
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            says:

            The whole point of a nation is that you can pay for things long-term by borrowing money.

            Balanced budgets don’t actually prohibit that.  Every U.S. state has a balanced budget, as does every municipality (sometimes by hook, crook, or sleight-of-hand, admittedly), and yet every U.S. state and municipality pays for capital projects through borrowing.  It’s a matter of using bonds, and making the budget cover the bond payments.

            In fact some other sovereign nations do have BBAs, including–according to Wiki-Germany, Estonia and Switzerland.  Don’t know much about Estonia, I’ll admit, but Germany and Switzerland are pretty well-run countries.

            People like the idea that in times of trouble, our government has the flexibility to go into debt.

            Which is why the BBA allowed for going into debt if a supermajority of Congress agreed.  In fact, here’s the text of the current resolution (which, for the record, has been voted down).

            “Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.”  (Emphasis added)

            So you’re still not showing how the idea is idiotic .  You are showing that you don’t really know the ins-and-outs of it.

            Note that I’m not making an argument in support of a BBA.  I’ve grown more inclined to favor it over the years, but am not totally set in my support.  But I am pretty sure that calling it “idiotic” is overly simplistic.Report

            • Avatar Jesse Ewiak in reply to James Hanley
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              says:

              I’m well aware of the “outs” the current incarnation of the BBA has in it. So yeah, putting a supermajority requirement into the current Congress is basically saying, “never use this unless another 9/11 happens.”

              On the states examples, yes, they can get bonds and use other tricks, but for needed social spending during a recession, states can’t do that. In fact, when things such as housing aid and other state programs are needed most, that’s when they’re cut. Thus, the need for federal bailouts.

              From what I’ve found, the German requirement was just put into law in 2009, so let’s see it’s actual effects (which begin in 2016). Also, the Swiss requirement is more of a forced Keynesian cycle (surpluses during boom times, allowances for deficit spending during bad times). I still think that’s bad policy, but at least that makes actual sense. The current right-wing BBA is just a backdoor way to be able to cut social services while having an out to do so (ie. “the law said we had too”).

              In any situation where there’s another recession and a Democrat controls the White House, I have zero doubt that the current incarnation of the GOP will not allow any substantive deficit spending that is actually needed during a recession.

              All a BBA does is make government more screwed up.Report

              • Avatar James Hanley in reply to Jesse Ewiak
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                says:

                the Swiss requirement is more of a forced Keynesian cycle (surpluses during boom times, allowances for deficit spending during bad times).

                What economist Alex Tabarrok called an “unbalanced budget amendment.” And I like the idea.  But note that it forces surpluses during good times–your anti-BBA approach simply enables our on-going tradition of running deficits during good times.  Persuade me that’s not less wise.

                putting a supermajority requirement into the current Congress is basically saying, “never use this unless another 9/11 happens.”

                Hyperbole much?  Or have you simply failed to notice how regularly Republicans support budget deficits with their votes, even when they’re not doing it with their mouths?  Their rhetoric doesn’t match their reality.

                I have zero doubt that the current incarnation of the GOP will not allow any substantive deficit spending that is actually needed during a recession.

                Setting aside the extremely dubious assumption that deficit spending is actually needed during a recession (the economics profession is quite split on that, you know, and Krugman’s got a chorus of critics condemning his facile and not always honest defenses of the idea–links available upon request), what this argument boils down to is, “the other side may not agree with my side about when we need to do deficit spending, and that just won’t do.”  I’m never impressed by arguments that boil down to “make sure my side can win when I want it to.”

                All a BBA does is make government more screwed up.

                Assertion.  Even if we accept all your criticisms you still haven’t demonstrated that it would make government “more” screwed up because you haven’t accounted for how screwed up the absence of a BBA (or un-BBA) has currently made things.  Do you really think there would be quite so much concern about increasing spending during a recession if the damned Bush administration hadn’t run wild with its good-times deficit spending?  Yeah, the right-wingers, yadda yadda yadda.  But I’m talking about the non-right-wingers who are looking at spiraling deficits and saying, “whoa, hold on there, how much more of this can we really afford?”  It’s not all just a battle between decent liberals and monstrous right-wingers.Report

              • Avatar Jesse Ewiak in reply to James Hanley
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                says:

                re: Swiss – If the GOP was supporting that, I’d at least think it was interesting policy, even if I didn’t disagree with it. But, that’s not what the GOP is supporting.

                re:9/11 – Oh, I have no doubt there’d be no problems if as Republican as in office. So, let me restate it. “It’d never get 3/5 of a vote if a Democrat was in office, short of the second coming of 9/11 or an alien invasion.”

                re: Krugman – I’m well aware there’s plenty of economists out there who think we can cut our way to prosperity. Well, I’m just going to look at the US where we’re beginning to turn around after running some deficits and places like Ireland, the UK, and Spain that are still spiraling as they cut, cut, cut, some more, and I’ll go with the bearded guy.

                Regardless, if one side wins a majority, they should be able to set economic policy. If Mitt Romney wins in 2012 and thinks the best way to save the economy is give massive tax cuts to rich people and increase defense spending, that’s his prerogative. He shouldn’t be boxed in by artificial rules.

                re: spending – Yes, there would be. Because Republican’s always begin to care about the deficit when a Democrat is in the White House. See the sudden turnabout from Republican’s after both Clinton and Obama won. So, yeah, for the politicians and most of the conservative commentators, I have no doubt they don’t really care about the deficit as much as it means they can cut spending on things they don’t like.

                As for the populace, I don’t know. Is the populace aware we can borrow money for almost negative interest? Is the populace aware that if we do nothing and let things such as the doc fix, the Bush tax cuts, and so on expire, our long-term debt isn’t such a big problem? Is the populace aware Social Security actually isn’t in crisis and there’s no way in the near future we’ll be Greece? Again, call me an elitist, but I doubt it.

                But, I will point out, that poll after poll shows that despite 24-hour concern trolling from the GOP and some Democrats, strong majorities still prefer more spending on jobs over cuts in spending. So yeah, they care about the debt. Unless it makes it so their neighbor doesn’t get a unemployment check or their Mom’s Medicare might get cut.Report

              • Avatar Michael Drew in reply to James Hanley
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                “our ongoing tradition” started somewhere – it’s worth noting where.

                What are the advantages a balanced-budget amendment may offer? They would need to outweigh the strong potentiality that the result would be a Congress and president even more frequently in blatant, direct violation of entirely-not-vague constitutional language than they already have a tendency to be — with courts faced with either invalidating what as institutions in this country they instinctually take to be quintessentially legislative functions, taxing and spending and the planning thereof, or else implicitly approving clear lawlessness on the part of the president and Congress by inaction (something they already do plenty of pursuant to ‘political question’ doctrine).  Should we trust and/or desire for courts to be put in this position.

                There is also the issue that budgets are routinely passed that don’t reflect actual outlays and receipts for the year they plan for: perhaps you know, James, do the current proposals try to account for this, or are they strictly measures that are meant to constrain the formal laws known as “budgets,” which are balanced or not based on projections, not actual receipts?  I fear the former would amount to something toothless and distracting becoming part of our constitutional document, and that the latter would cripple the ability of the government to operate week-to-week and month-to-month.  In the latter case, without broad institutional reform in the Congress,   I think a BBA is a recipe for a state of constant governmental breakdown that would make this past summer look like the bygone Ronny Tip days of bipartisan comity – or else, again, perhaps a point-of-no-return moment in the story of U.S. constitutional eclipse.  But perhaps I am being melodramatic.

                I tend to side with Dick Cheney on budgets. I’d be interested to hear why he and I are so wrong in taking that view that a constitutional amendment treating the issue is a good idea. (Implicit in that statement is a fundamental curiosity about what values system and assessment method, if a constitution is meant to be the bedrock legal foundation for all law in a nation, a nation is supposed to refer back to that are prior to the constitution, to assess whether that constitution has flaws that need to be corrected by changing it.  Where does one even start to set up an assessment modality for proposals to do it?)Report

              • Avatar Lyle in reply to Michael Drew
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                For the balanced budget amendment why not try ratification by the convention method as used on the 21st amendment? Essentially that puts the issue up to a national referendum. Each state elects delegates to a convention that decides to ratify or not, no state legislature involved at all.

                It is surprising that this method is not used more often as approaches a popular referendum on the issue.Report

              • Avatar Jaybird in reply to Lyle
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                says:

                I believe that the 21st Amendment is the *ONLY* Amendment to be ratified that way. Out of all of them.

                It’s also the only one that an overwhelming majority of the public called for. Out of all of them.Report

    • Avatar Michelle in reply to James Hanley
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      James–how close to success have those amendments actually been? To my knowledge, none of them have even made it past Congress to the state ratification process. I think the Equal Rights amendment was the last proposed amendment to make it that far, before it failed to get the required 3/4th majority.

      Politicians toss out the idea of amending the Constitution and may even put a bill up in Congress, but it’s an exercise designed largely to mollify the base as opposed to anything that has a realistic chance of getting done.Report

      • Avatar James Hanley in reply to Michelle
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        “Closeness” is hard to say in some ways.  It’s true that no proposed amendment since ERA has made it past Congress to go to the states.  But in the case of the flag burning amendment, and the anti-SSM marriage amendment at the time it was being seriously bandied about, I think passage through state legislatures would have been rapid. I could be wrong about that, of course, and it could just be my cynicism showing, but I think few state legislators would have the courage to stand up for flag-burners, and right after gay marriage became a serious issue because of Hawaii and Massachusetts, there was overwhelming opposition to it (and lots of people afraid the full faith and credit clause would mean their state was forced to accept another state’s same-sex marriages).

        The BBA I’m less sure about–lots of people were clamoring for it, but state legislators would be likely to recognize the pressure it would put on their own state budgets if Congress had to ratchet down its spending, so self and state-interest on their part  might have killed it, or at least made it move slowly through the states.

        In Congress each of these came very close to passage one or more times, but that closeness could be deceiving.  Any number of Congressmembers didn’t want to repeal part of the First Amendment (with the flag burning amendment) or limit states’ rights (with the anti-SSM amendment), but wanted to be seen by their constituents as being on the “right” side of those issues.  So my educated but evidenceless guess is that many legislators were counting noses very carefully, very willing to vote in favor of such an amendment just so long as their vote didn’t actually cause it to pass.  That way they could have their cake and eat it, too.  And this probably entailed negotiation among legislators, as they tried to figure out which among their number could most safely vote against, providing cover for others who opposed the amendment to vote for it in order to placate their constituents.

        Not that some–many–weren’t sincere votes for, but I suspect if all of them had voted sincerely they wouldn’t have been as close to passage as they appeared to be.Report

  9. Avatar Katherine
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    The one constitutional amendment that I’ve heard about that might fall under “housekeeping” (but is rather too radical a change to go there) is one changing the Presidential election system from the electoral college to a simple majority-vote system.  Does anyone here know anything more about this?  What do you think of it?

    I think it would be a good idea, personally.  There’s not a lot of elections it would apply to (generally those who get the majority of the electoral college also get the most votes), but the Presidency is the one office where a straightforward national majority vote would be the simplest and fairest way of deciding the election.Report

    • Avatar James Hanley in reply to Katherine
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      It would result in less attention being paid to some very small states.  It would result in more attention being paid to larger “solidly Democratic” or “solidly Republican” states because actual gains could be made there.  That’d be the primary effect, I think.Report

      • Avatar Katherine in reply to James Hanley
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        Sounds like a good thing to me.  The small states already have the Senate; there’s no particularly reason why the voices of California Republicans, New York Republicans and Texas Democrats should be ignored.

        And a large number of the smaller states (Idaho, Montana, Wyoming, the Dakotas, Kansas, Oklahoma for the Republicans; a fair portion of New England for the Democrats) are fairly solidly in one party’s column already, so they wouldn’t be losing much attention.Report

        • Avatar James Hanley in reply to Katherine
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          I don’t disagree.  The practical problem is that you have to get enough of those small states to agree to an amendment that diminishes some of their influence.  It’s mathematically impossible to pass such an amendment without some small state support.  So good idea or not, I wouldn’t recommend holding your breath.Report

          • Avatar Mo in reply to James Hanley
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            Right now a bunch of states are passing laws that give their EVs to the winner of the popular vote, contingent on there being sufficient states that pass NPV laws to be sufficient to win the election. All perfectly Consititutional, since states can assign their electoral vote any way they wish. Currently, they have 132 electoral votes of the 270 they need.Report

    • Avatar Jaybird in reply to Katherine
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      says:

      If you can think of 13 states that would say “nope”, then the amendment ain’t goin’ nowhere.

      If you can think of 20, it won’t even get that far.Report

    • Avatar Dan Miller in reply to Katherine
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      Contra James and Jaybird, there’s no need for a Constitutional amendment on this one.  Hendrik Hertzberg has the goods on the National Popular Vote plan.Report

      • Avatar James Hanley in reply to Dan Miller
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        says:

        Dan,

        True, there’s no need for a constitutional amendment to make a direct vote happen functionally.  But it relies on each state cooperating, and to date I haven’t seen any explanation for why states would actually decide to cooperate rather than defect in this scheme.  Imagine the 2008 election under the NPV plan.  Obama got just less than 1/3 of the popular vote in Wyoming.  According to the NPV page, 69% of the public in Wyoming supports NPV, but would they if the suddenly found their state’s votes going to a guy opposed by 2/3 of the state’s citizens?  Perhaps, but I’m dubious.

        Don’t get me wrong.  I’m not arguing against the NPV plan.  I’d have no objection to it.*  I’m just skeptical about the long-term success of plans that require voluntary cooperation without some strong centralizing norm or more to encourage that cooperation.  But perhaps ensuring the majority popular vote winner always wins is a strong enough norm, or perhaps it eventually becomes one.

        *But then I have no big objection to the EC, either–the only time it produces an odd result is when the election is so nearly a tossup that flipping a coin to determine the winner would just as reasonable.  I can’t find it worth getting worked up over, but if others are more bothered, that’s fine (I certainly can’t get worked up in opposition to them).Report

        • Avatar Dan Miller in reply to James Hanley
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          I think there are two responses to that.  One is that any such defection would have to happen after the election, but before the EC vote.  There would be no way to disguise it as anything but a naked power grab, and the backlash would be mind-blowing.  I think it’s safe to rely on a norm here, and there may well be legal mechanisms to bind the states so that they legally can’t defect during the brief period when it would be advantageous (this would represent an interstate compact, but IANAL–Burt?).

          The second argument is that defection might not always be the right answer.  After all, if Wyoming defected, then presumably other states would as well, and it would be extremely tough to time it so that your state defected but no other state had a chance to do so.  So you might well end up alienating everyone for no gain–a prospect that would tend to deter even hardcore partisans.  I think this plan is actually pretty workable.Report

          • Avatar James Hanley in reply to Dan Miller
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            says:

            Dan,

            I should clarify. By defection I was actually thinking that after one outcome that revolted the state electorate, that state would repeal its NPV act and not participate in the scheme in future elections.

            It’s an empirical hypothesis–I could be wrong, of course.

            And while it’s not what I was actually thinking of, in the context you give it–defection between election day and electoral vote counting day–your points seem valid to me.Report

            • Avatar Dan Miller in reply to James Hanley
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              says:

              Ah, OK, that makes more sense.  And it could happen–I’d be skeptical, because I think people are more concerned with who actually wins than with who their state voted for, but I’ve been wrong before.  At any rate, the worst-case scenario in this case would be reversion to the bad-but-not-terrible status quo.Report

              • Avatar Michael Drew in reply to Dan Miller
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                says:

                I think people are more concerned with who actually wins than with who their state voted for

                I agree, this is the question, but they are also accustomed to their state (and all the other states) playing the role they assign it to play by voting in that election, so the question becomes what happens if their state contributes to the victory of the person they did not give most of their votes, and whether they are aware that is precisely the mechanism by which NPV works, and whether they’ll be okay with that when it happens in practice.  My guess is that enough people will realize they wouldn’t be that the measure will never reach functional status, but on the other hand, it is law in some states (the measures all are condition functional status on there being 270 EC votes’ worth of states that have the same law on the books and active).Report

            • Avatar Michael Drew in reply to James Hanley
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              says:

              Keep in mind, in order for the scheme to fall apart, enough states would have to defect in this way so as to bring the total electoral votes of the states who remain true to it below 270.  I have a hard time seeing a scenario in which enough big states pass NPV to make it the functional system, where the switch is not widespread enough to prevent a situation in which a small state like Wyoming defecting would do that.  Perhaps in the first cycle or two, but after that the system would revert to stability in which one norm or the other was solidly adopted.  (as Dan says, the backlash in a case where a state, having said they would be guided by a central popular vote count then reneged and acted to assign electors contrary to the vote count would be swift and severe.  But it’s important to say that under the current structure, such an action would be entirely legal, and the system would not be thrown into constitutional crisis (though likely political)which is itself in my view something of an indictment of the system, and thus of NPV for being less than a systemic fix.)

              For my part, I have my doubts that the polling around NPV reflect full, or even widespread, public understanding of the actual proposal.  I really suspect that people think they are approving a federal popular vote amendment, they just don’t understand that that would indeed require and amendment rather than just a federal law.  NPV’s political flaw is that it would cause the electoral votes of many states (if all were to approve it) to go to the candidate who got fewer votes individual votes in those states.  I think James’ sense that this would not be acceptable in practice suggests not that people are able to imagine that scenario and think they will go along with it when thinking about it propositionally, but that they will reverse themselves in the event, but instead that they are not clear that this is not just an implication of, but the central function of, the measure.  My sense is that it will therefore never survive the intense debate and increased public scrutiny that would accompany an actual near-passage event in small states that have potentially strong counter-national-popular-vote representation in the current system (aka your Wyomings).

              The interesting thing to me would be what the national reaction would be if/when any large states that passed the measure (thinking perhaps Pennsylvania, Ohio, Florida, or maybe Texas) in a coalition with other large states and a few smaller ones adding up to a functional majority of the EC in fact stayed committed to the existing law, and assigned its electors to the candidate who lost the in tally of voters in that state but won the national popular vote.  I wonder if commentators would claim this state simply decided the election by its legislators’ whim, despite the reality. I realize that the  only appeal that one could make to advance this idea would be an appeal to the past system simply a matter of status-quo appeal (“This result is different from what it would be in the old system, and they changed the system like that on purpose, so they must have done it to fix the result!” or some such).  And I realize that the result would have the imprimatur of a national popular plurality (at least).  But after 2000, if not just as a matter of general awareness, people have internalized that the national popular vote does not decide who is president.  If this system were in place and a state in a position to decide the EC assigned its electors against its own vote count, I wonder if the losing party would stand by the legitimacy of the overall result.  I think they would, but I wonder.

              Incidentally, the current national law says that states can apportion electors however they choose (right?).  This is not a realistic risk, and it’s probably covered in first-semester ConLaw, but could a state in theory simply pass a law saying that all their presidential electors would always be assigned to support whichever member of the Democratic Party got the most votes for president nationally (or in the state), or was this possibility eliminated with some part of the 14th A or other amendment?  If this is possible, and it occurred, would there be a basis outside of constitutional language for a court to invalidate the law – substantive due process, perhaps?  If it is possible for a state to do this, is this a demonstration that the part of Article II laying out how states are to appoint EC electors (i.e., ” in such Manner as the Legislature thereof may direct”)?Report

              • Avatar Michael Drew in reply to Michael Drew
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                says:

                …a demonstration that it is overly permissive inasmuch as the Framers were not envisioning (or at least hoping against the existence of, irrationally in my view) permanent, rivalrous, institutional national parties whose highest aim is to have one of its members win the election in the Electoral College they were establishing – indeed, they were envisioning unassigned electors of individual conscience appointed by legislatures, at least in the ideal realization of the scheme?Report

              • Avatar James Hanley in reply to Michael Drew
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                says:

                could a state in theory simply pass a law saying that all their presidential electors would always be assigned to support whichever member of the Democratic Party got the most votes for president nationally (or in the state), or was this possibility eliminated with some part of the 14th A or other amendment?

                Totally off the cuff (and I’m not feeling well today, so discount as appropriate), but I think this wouldn’t pass constitutional muster based, on all things, on Romer v. Evans.  It would essentially be a denial of the right to engage in political participation for a discrete group, and would probably be struck down on rational basis review.

                However a state clearly could–constitutionally, not politically–eliminate election day and the state’s popular vote and just select the electors themselves.  Then political participation is not denied because it just shifts the prez election to becoming a function of the state legislative elections.  “Vote for Me if you want our state to choose Democratic electors!”

                Curiously, though, the language of the electoral college selection is vague enough that drawing lots would seem to pass constitutional muster, as long as it was done fair and equally (whatever the Court would decide that meant in such a case).Report

              • Avatar Michael Drew in reply to James Hanley
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                says:

                Ah, yes indeed. I was overly technical and it just obscured the point. They could, in fact, eliminate just the presidential election (keeping governor, state lawmakers, even federal lawmakers, etc), couldn’t they?  This is what I was thinking of.

                Feel better!Report

              • Avatar James Hanley in reply to Michael Drew
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                says:

                Michael,

                Yes. In fact the Florida legislature was preparing to vote on their own slate of electors in 200. (Whether they could legitimately do so after allowing the public to vote is, I suppose, an open constitutional question, but I can’t quite see why not. The Constitution doesn’t say they can’t change their minds about how to do it.  As long as they don’t retroactively try to change–after the electoral votes have actually been cast–I can’t see a constitutional impediment.)

                Thanks for the well wishes. Fortunately it’s really minor, not even worth mentioning except as an excuse for anything particularly non-sensical that I might write. 😉Report

              • Avatar Michael Drew in reply to James Hanley
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                says:

                Yep. FL 2000 is what I was thinking of as well.  Of course, they were claiming to be doing it in order to protect the integrity of the vote that had happened (but more to the point, the outcome they considered to have come out of that vote), so they weren’t really nullifying an election result or simply eliminating an election, at least by their telling. But still, it illustrates the extent of the power potentially in their hands under Art. II.Report

  10. Avatar Brandon Berg
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    says:

    The reason we don’t have more partisan social engineering amendments is that Roosevelt bullied the Court into rubber-stamping unconstitutional partisan social engineering laws, as long as they aren’t specifically prohibited by existing amendments other than the second, ninth, and tenth.

    We don’t have a minimum-wage amendment, or a Social Security amendment, or a War on Drugs Amendment because the court rubber-stamps those laws using bullshit (does that have an official LoOG bowdlerization?) interpretations of the interstate commerce and general welfare clauses that were unambiguously repudiated by Madison in the Federalist papers.Report

    • Avatar Jaybird in reply to Brandon Berg
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      says:

      I tend to use “Bravo Sierra”. It’s cheerful.

      That’s unofficial, though.Report

    • Avatar DensityDuck in reply to Brandon Berg
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      says:

      You could try just using another word.Report

    • Avatar Stillwater in reply to Brandon Berg
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      says:

      using bullshit … interpretations of the interstate commerce and general welfare clauses that were unambiguously repudiated by Madison in the Federalist papers.

      Is it really that simple BB? Just cite your favorite Founding father and QED the whole thing?

      I’d’ve thought an intellectual guy like yourself would go to the arguments rather than merely rely on the reference.Report

      • Avatar Brandon Berg in reply to Stillwater
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        says:

        You don’t understand. I’m not citing Madison because he was an expert on the topic. I’m citing him because that was the promise he made to get states to ratify the Constitution.

        At the time, one of the arguments the antifederalists were making against ratification of the Constitution was that the phrase “general welfare” in the taxing and spending clause could be broadly interpreted as giving Congress the authority to spend money on anything it asserted would promote the general welfare.

        Madison said that this was so implausible an interpretation that the antifederalists must just be making it up to scare people. And yeah, obviously he failed to see just how casual future Courts and Congresses would be about their oaths to uphold the Constitution. But the point is the Constitution’s ratification was partly due to Madison’s assurances that it was not intended to mean anything of the sort.

        It’s also worth noting that the two sides in the debate at the time were “The Constitution gives Congress too much power, so we shouldn’t ratify it” and “The Constitution doesn’t actually give Congress that much power, so we should ratify it.” There really wasn’t a “The Constitution gives Congress as much power as the antifederalists say, and we’re totally cool with that” faction.Report

        • Avatar Kolohe in reply to Brandon Berg
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          says:

          Well, Hamilton, but he kept that on the down low until the deed was done.Report

        • Avatar Stillwater in reply to Brandon Berg
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          says:

          Well, I’m pleased to see your argument here. But I would dispute that ‘future Congresses’ have interpreted the clause so unrestrictedly that there’s much cause for alarm. What are the specific grievances here? Is it that ‘any’ taking from the rich to support the ‘general welfare’ is inappropriate? Or is there a clear Madisonian line drawn in the sand?

          Remember, of course, that slavery was permissible at the time.Report

          • Avatar Tom Van Dyke in reply to Stillwater
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            says:

            Mr. Stillwater, you played yr slavery card so painfully soon.  Altho I do appreciate you cutting to yr chase.

            Did you know there was a “poison pill” for slavery put into the Constitution?  Most folks don’t.  [The poison didn’t work, but the Founders did try.]Report

            • Avatar Stillwater in reply to Tom Van Dyke
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              says:

              Thanks for that Tom. Us liberals use whatever cards we have, whenever we’re holdin em.Report

              • Avatar Tom Van Dyke in reply to Stillwater
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                says:

                Mr. Still, I’d hoped y’d acknowledge the Constitution’s poison pill for slavery, or at least ask about it.  Lord knows we hear enough nonsense about blacks being 3/5 of a person from putatively knowledgeable people.

                As for liberals, I like liberals—they’re a necessary and invaluable conscience and vision for our nation.  It’s leftists I can’t stand, those who will throw any cheap trick at the wall to discredit America regardless of its context or inherent truth.

                I prefer to think of you as a liberal.Report

              • Avatar Stillwater in reply to Tom Van Dyke
                Ignored
                says:

                Tom, do you mean

                The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

                I’ve heard about it. I just can’t remember who wrote about it. 🙂Report

              • Avatar Tom Van Dyke in reply to Stillwater
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                says:

                Yah, you nailed it, Mr. Still.  As we saw with Paterno, man’s feet of clay are more his defining characteristic, not his evil.

                Evil takes too much work.Report

              • Avatar Stillwater in reply to Tom Van Dyke
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                says:

                As much as we might disagree about politics, Tom, I think what you wrote there is the truest of the true, and ought to be the ultimate grounds of conservatism. People aren’t maleable like liberals conveniently think. And they aren’t immutable like conservatives like to think.Report

              • Avatar Stillwater in reply to Tom Van Dyke
                Ignored
                says:

                Btw Tom, it’s good to have you back. I want to apologize for again for my part in what transpired previously. And I hope your hip issue heals well and permits you to imbibe in as many narcotropics as you feel necessary.Report

          • Avatar Stillwater in reply to Stillwater
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            says:

            Btw, I’d be much more persuaded by arguments from ‘original intent’ if the advocates of the view could present an argument the for those roll-backs that applied to the current political-economic environment. If the argument was ‘let’s roll back Federal funding for welfare and Medicare because we’ll all be better off’,  those arguments might gain more credence. But appealing to bygone times strikes for there own sake strikes me as the quintessence of hypocrisy.Report

            • Avatar Michael Cain in reply to Stillwater
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              says:

              I guess I’d be more persuaded by arguments about “original intent” if the founders on both sides of the debate had been a bit more dogmatic and a good deal less pragmatic.  Since several, from both sides of the debate, were quick to exercise non-enumerated powers almost as soon as they held office in the new government.Report

          • Avatar Brandon Berg in reply to Stillwater
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            says:

            It’s that the “general welfare” clause is a description of the powers specifically enumerated in the folliwng lines. If you have to point to the “general welfare” clause to justify your claim that Congress has the authority to do something, then Congress doesn’t actually have the authority to do that.

            Remember, of course, that slavery was permissible at the time.

            Sure. And now it’s not, due to an amendment. There was never an amendment that gave Congress the authority to ban marijuana or run a health care program.Report

            • Avatar Stillwater in reply to Brandon Berg
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              says:

              But those complaints will exist no matter what the initial provisions specify. More importantly, disputes about those types of practices will exist even if they we’re justified by original intent. People disagree about the limits of governmental power. That’s a fact. But government already had certain disputable powers – even before the ratification of the constitution the PTB held all the reins of power! – so these disagreements are endemic. What matters is the argument relevant in today’s political climate. The argument that is more than self-interested bitching. The one that actually makes things better.

              Appealing to the wisdom or foibles of Madison seems irrelevant to this exercise.Report

  11. Avatar Warren Jason Street
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    says:

    I don’t know if it is really wise to have such an elastic document. If one political party were to have 10 or 20 years of total dominance over the other, the constitution could thus be amended through partisan methods (using the state legislatures controlled by the dominant party as an engine of social change might feel like “democracy,” but what if these changes roll back freedoms now enjoyed by Americans?). And those partisan methods might leave us without a framework that can be relied upon. Knowing that certain rights are not going to be taken away gives Americans a deeper connection to the rule of law, and the rule of American law, that other societies or nations probably won’t have.

    There is also the argument that amendments that could allow smaller states to be pushed to the fringes and dominated by larger states would have a detrimental effect on the idea of America. That balance between the states is essential right now; we are already too divided into blue and red states.Report

  12. Avatar Max L
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    says:

    After Bush v Gore, I would have thought an amendment to retire the Electoral College would have come to pass by now.   I imagine that ending lifetime judicial appointments and  “corporations are not natural persons” will be getting attention in the near future.

    But they will never  pass.  The Constitution is becoming less and less about governing ourselves and more about being the written proof of the Founders infallibility.

    Of course, the Constitution, unamended,  benefits particular groups (small states and, post Citizens United,  pro-incumbent business politicians to name 2 examples) over others.  To keep those special benefits, the most arcane, quaint and antique process requirements enshrined in the document are dolled up in the the language of “American Exceptionalism” and put to service.

    The Constitution is becoming less a practical document and more and more a sort of uniquely American fetish.  I agree that the less the document is widely understood and the less approachable and relevant it becomes, the more likely it is that it will never be altered.  It will be increasingly fetishized, chapter and verse.

     Report

    • Avatar Ryan Bonneville in reply to Max L
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      says:

      I don’t agree with every word of this comment, but it’s very insightful. There is a certain extent to which the Constitution is seen as a fetish object rather than a set of laws. Just listening to the way people say “the Founding Fathers” should be enough to give most people the heebie jeebies.Report

      • Avatar Max L in reply to Ryan Bonneville
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        says:

        I think this goes hand in hand with the effort to cleanse history books (in Tennessee right now) of the more unpleasant bits.  This effort to sanitize our history makes it no longer truthful, no longer reliable as any kind of measure to compare to right now.  Our history becomes just a story or another stanza in “God Bless America”

        And I do think that is what is happening to the Constitution as well.   Or, more accurately, the version of the Constitution that mentions God  a lot and never talks about slavery that was written in 1776.  And one doesn’t amend an article of faith.

        Maybe I am a cynic, but I don’t think these are accidents.Report

        • Avatar Mike in reply to Max L
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          says:

          I don’t think the Constitution as a “fetish document” really explains the lack of new proposed constitutional amendments.  I do read about them being proposed.  I’ve read about two in the past year to in some way amend the First Amendment to overturn Citizens United.

          I think the difference now is that we are too divided a nation to generate the super majority required for a constitutional amendment.

          It’s not necessarily a bad thing.Report

  13. Avatar Jaybird
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    says:

    Was the ERA the last Amendment that really got a lot of steam before puttering out?

    How many states were on board before it was dropped? Here, let me google that for me…

    Looks like 30.

    20 States either didn’t ratify it (7), ratified then rescinded it (5), or didn’t ratify but had half of the two houses in the state legislature approve it (8).

    Looking at the map, I can see 3, maybe 4, states changing their minds but not 8.

    Ah, well.Report

    • Avatar James Hanley in reply to Jaybird
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      says:

      Curiously, the question of whether a state can rescind ratification is still unanswered.  If ERA had gotten close enough that the rescinding states made the difference, it might have been litigated and decided.Report

      • Avatar Jaybird in reply to James Hanley
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        says:

        That doesn’t bug me, really. If the states knew, for a fact, that they couldn’t rescind once they ratified, we’d merely have 12 states that didn’t ratify it and 8 states that only ratified it in one house… and that’s a bare minimum.Report

        • Avatar James Hanley in reply to Jaybird
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          says:

          Jaybird,

          I don’t think so.  The rescinding was done by succeeding state legislatures–so the original ratifying set of legislators might have still done it anyway.

          I don’t know that I’m “bothered” by rescinding (prior to a determination of ratification, anyway–I wouldn’t let a state rescind it’s ratification of, say, the 17th Amendment now), but I do find it an interesting constitutional question.Report

  14. Avatar Kyle Cupp
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    says:

    In domestic matters at least, I think I share your optimism, Tod.Report

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