Local Gets Things Done!
Photo by Sage Ross, CC BY-SA 3.0
“All politics are local.” –Tip O’Neill
Change does not start in Washington; it begins at the municipal and county level. If this sounds ludicrous consider the patchwork of Cannabis laws across the United States right now; federally it is a Schedule one drug and possession could land you tens of years in a federal prison, but in Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, New Mexico, New York, Oregon, Vermont, Virginia, Washington, and the District of Columbia, it is legal to posses and use as you see fit so long as the feds don’t catch you. So why is it legal in those eighteen states? Because voters took the imitative to lobby their state senators and representative, and in some cases their right to force the question “Should Cannabis be legal in our state?” to the voters via initiative petition drives. “But Maura, there are still a lot of states where it isn’t legal!” Yes and no. There are an additional fifteen states where it is legal for medicinal use thus leaving seventeen states where it is illegal, or 34% of states.
The point here is that lobbying the Federal government for anything is pointless unless you have a very large purse.
Now, local is a much more doable route, and if a concerted effort were to be put forth, We The People could force an amendment to the Constitution of the United States (COTUS). “Wait Maura! Only Congress can change COTUS!” Nope, the states also have that power!
The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures. (Source)
Honestly this is probably a less Herculean task today than it would have been in the past. There is a downside to a Convention of the States; we don’t know for certain what will come out. The last time a Convention happened was in May of 1887: “Although they had gathered to revise the Articles of Confederation, by mid-June they had decided to completely redesign the government.” (Source) The outcome was our current COTUS. One can imagine what would come out today if very strict Tar and Feather-able offenses were not spelled out to the delegates before hand:
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- Do NOT change any existing amendments!
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- Stick strictly to the list provided!
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- Do not try and sneak anything in.
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- Each amendment shall be written in plain U.S. English! No foreign words. No uncommon among the general population terms or words. NO LATIN!
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- No carve out exceptions for anyone or anything.
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- No amendment shall exceed one half of one typed page on 8 ½ by 11 inch paper with ½ inch margins all the way around, single spaced, set in no less than 14 point Garamond font.
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- Delegates shall be randomly chosen from among the general population of the state and shall not currently or previously hold ANY public office be it elected, appointed, or hired in.
So what issues need to be addressed in this script?
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- Ballot Zombies or dead persons that are not cleared from the ballot roles.
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- Executive Dictatorship or any governmental person using executive order to circumvent Congress
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- Ballot Harvesting or persons who are not sworn to duty by their Secretary of Election to collect ballots in an official capacity.
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- An addendum to the Fourth Amendment which currently reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Now what would the addendum add? To be secure in our digital persona and possessions, to ban civil asset forfeiture.
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- A right to privacy. This shall apply to all of our issues, be they medical, digital, anything identifying such as digital searches, our home addresses, credit checks not signed off for by us, this list can and should be exhaustive!
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- Reciprocity between states
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- Term limits for all Congress persons so that no Congress person shall exceed twelve years in office be it by vote or appointment.
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- Termination of all congressional pay, health care, pensions, in any form on the Congress persons last day in office. (If Social Security is good enough for the population then it is good enough for them.)
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- All laws must Sunset and shall last no more than 20 years from date of effect. They cannot be reauthorized and MUST be fully re-voted upon and resigned by the president every time.
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- All governmental divisions shall fall under the purview of Congress and as such their administrators shall be discharge-able or impeachable by a vote of congress. There shall be no immunity from prosecution for any official who fails to do their job while upholding an oath to COTUS.
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- An end to Qualified Immunity.
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- Make it a high crime for any law enforcement personnel to have any form of sex with any suspect or person in custody with no exceptions.
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- Senators and Representatives shall be subject to recall by their states and by initiative petition by their constituents.
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- No person working for the Federal Government shall invest in publicly traded stocks, or bonds, be they foreign or domestic.
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- Congressional salaries shall be fixed to no more than 150% of the average hourly constituent of the area they represent. Presidential salary shall be fixed to 200% of the average Social Security beneficiary.
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- In order to curtail lobbying efforts and bring control back to the local level, Congress shall meet virtually from their local offices and shall not keep an office or domicile within the greater metropolitan area of the District of Columbia unless their district happens to be in that area.
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- Statehood shall be offered to Puerto Rico and all other U.S. holdings.
I’m sure most all of you could add to this list, but it’s a beginning and if we could get the States in place to do this we may start to wrestle some semblance of control back from the federal beast again. Is it a pipe dream? Maybe, but this would be basically a revolution without firing a shot, where no one gets more than their feelings hurt, and where we can honestly say “We the people, in order to make a more perfect union, did something other than complain to the void.”
I’ll give you this – unlike some of our colleagues you are willing to get direct and call spades spades.
So I’ll do the same. A Constitutional Convention in this day and age carries too much danger for too little payoff. And your proposals for what should be taken up (never mind how) reflect what I hope is a willful naiveté regarding how the federal government works.
We will start here:
Those “divisions you refer to are the Executive Branch agencies – including my employer – and moving them to Congressional purview means neutering one of the three checks and balances baked into the Constitution by the Founding Fathers. Those agencies are HOW the President faithfully executes the laws of the US as he is required to do by Article Two. Now sure, amending the Constitution could end that faithful execution requirement, but what then does the president actually do?
That aside, every Cabinet agency and all of the independent agencies (EPA, NASA, etc) are helmed by people confirmed for their posts by the Senate, and are already subject to removal by impeachment under federal law. That works as a threat because the agency heads don’t work for Congress. Moving them across branches takes away that stick. And no agency head or career civil servant in the federal government is immune from prosecution except for the folks in the intelligence community and law enforcement.
Then there’s this:
If your angst is aimed at federal civil servants, consider this: Since 1986 (by law) federal employees retirements have largely been funded through a 401K-like investment fund called the Thrift Savings Plan. Because it owns and hold stocks to make its portfolio, the TSP is one giant investment fund that essentially requires federal civil servants to invest in stocks if they want to have an adequately funded retirement. Nearly all of the federal civil service is under this now. So to make your idea happen, you’d have to shut that down, and go back to the defined benefit pension only approach that Congress wanted to move away from in 1986. That would drive the cost up significantly, never mind the legal implications.
If your beef is with Congress – who can credibly be accused of insider trading based on the information they receive in their oversight and investigational hearings – I’m with you, but this proposal doesn’t address that problem.
Next:
While I would LOVE to be able to recall my Congressman – who’s local nickname is No Show – this runs smack into federalism. 19 states already have state office recall laws that could be amended (probably much easier) to allow this since senators (at least) serve the whole state. Unfortunately SCOTUS ruled in 1967 that there is no legal way to recall senators or congressman.
Next:
Congress can’t appropriate funds now on an annual basis – so I see no way this works.
Executive Orders are issued by the President alone and serve two purposes – one is to tell the federal workforce HOW to faithfully execute the laws Congress passes, and the other is to DIRECT the federal workforce on addressing issues that Congress fails to act on. For several decades, Congress has failed to act on immigration reform (back to them not wanting to do their jobs) allowing a bandaided system to limp along, all the while appropriating funds to immigration and border agencies which the President must legally execute. Absent executive orders, there’s no way any president of any stripe could act on this issue, and especially no way that he could, say, build a border wall that wasn’t Congressionally authorized (leaving aside whether such a wall actually worked). Despite the exhortations of Presidents of both parties, numerous local and state officials, and major business segments, Congress has stubbornly refused to do anything to address the situation. Removing the Executive Order as a tool for the President won’t change that.
So what would address this? I mean really address it? Voters sweeping form power those sclarocretic Congressmen and Senators who have made multi-decade careers of obstruction and legislative laziness. It might take more then one election cycle, but if ALL the bums got thrown out, then the People’s Representatives might actually choose to represent the people, and then do something about many of these issues.Report
“you are willing to get direct and call spades spades.”
please refrain from using racist terminologyReport
I’m all for Sunset Clauses, but yeah, they can’t live or die on a full vote. Something else would have to be figured out, and that’s a big part of why Sunset Clauses aren’t a thing.Report
Most federal statutes actually have to be renewed periodically – remember the kerfuffle when Obama supported renewal of the Patriot Act? Congress has to vote on the renewal, whet they don’t usually do is a full committee mark up or any analysis of effectiveness.
And again they can’t pass appropriations on a deadline they have given themselves (and moved at least once) – an Article I, Section 9, Clause 7 duty assigned to Congress:
Report
On the flip side, perhaps a whole bunch of sunset clauses taking effect might motivate congress to actually do something. Even if that is only limited to voting on their pay raises.Report
Yeah, Presidents issue a few hundred executive orders each, most absolutely routine and filling in the details of things left undone by Congress. In the OP, “to circumvent Congress” is doing some heavy lifting.Report
I notice how whenever a proposed Constitutional Convention comes up, people often begin with a preamble of how dangerous it would be.
I think this deserves a lot more probing.Report
In my case its because most of the proposals I’ve seen – until this one – focus on expanding the second amendment to allow unlimited unrestricted gun ownership as well as making national all sorts of race based voting rights restrictions. Even here with the Zombie Voter and Ballot Harvesting ideas we see altering the constitution for problems that 1) are already dealt with in the states and 2) have yet to have any real impact on anything.
Its a non-starter in search of a rebellion to quash.Report
Everybody has their own fantasy version of a Constitutional Convention in their heads. Liberals imagine a Constitutional Convention that turns America into a parliamentary republic with some type of proportional voting system, no Second Amendment, and reduced federalism. America will become mystical magical Canada writ large. Conservatives see a Constitutional Convention as a way to create a Super-Madisonian government where the administrative state and welfare spending is impossible. Both sides get to be that Constitutional Convention. It will end in a bloodbath.Report
Quite probably. Which Is why I’m not a fan. The Constitution has a process for amendment, and it has worked 26 times so far. NO one wants to do the work or make the compromises to make it work a 27th or 28th or 29th time.Report
The original convention also had its Madisonian faction and Jeffersonian faction and others besides, but ended in peaceful agreement.
What I see when I look out over the political landscape is that the the bulk of the Republican Party voting base just doesn’t support liberal democracy in any form.Report
The original convention has many disagreements but most were basicallly Enlightenment educated professionals. They knew they wanted a republic and had a basic idea on what the federal government should do. The more radical proposals like Hamilton’s president for life and turning the states into mere provinces were ignroed. It was a situation where compromise was possible. Like you point out, compromise isn’t possible because the Republican voting base rejects liberal democracy totally.Report
I basically agree with Lee about this.Report
There are two big differences between the Constitutional Convention of 1788 and an Article V convention. The first is that the new one would be following the Constitutional framework. The second is a sense of permanence in looking at the system we’ve lived all our lives in. I have to believe that has more of an impact than most people would think. There will be people who want to burn it all down, but no more than 5% of the population really thinks that way upon reflection. The guys who wrote the last one 11 years earlier didn’t approach the Articles of Confederation with veneration.
If the conventioneers produced a new Constitution, could they get 38 states to support it? Would that be enough? The Framers wanted 100% agreement, and got it.
The conventioneers may suggest a hundred amendments, but they’re not going to get support for them. The kind of “you support mine, I’ll support yours” compromises wouldn’t make it out of the doors of the hall. I think there are some institutional changes that could be agreed upon, though, and I think a convention would be worthwhile.
My worry isn’t a new Constitution coming from the convention; it’s a secession amendment. I can see that getting 38 states’ support, even if their reasons and expectations are wildly different. I say I’m worried about it, but I don’t see a problem with it in principle. In fact, that might be why I’m worried about it.Report
While divorce could be preferable to war, I don’t want to give the Lost Cause apologists any ground to say the South was right – because it wasn’t. And you and I both know they would.Report
You’d favor maintaining a structure out of spite?Report
On the contrary I think spite may be the hands down best reason I’ve ever heard to keep the existing system and it’s one that we can all get behind.Report
The current structure is rather functional and quite robust, until its not, and at present the only reason its not is that it won’t support permanent minority rule.
That aside we fought a war over secession and the secessionists lost.Report
I suspect that if someone came along and said that the Civil War was about states’ rights, you’d say that he was whitewashing it. Seriously, wouldn’t you? It seems convenient that for this, you’ll say it was about secession.Report
The Southern states used secession as a vehicle to try and keep the “states right” to enslave Africans and others to provide labor for their plantations. So when someone says “state rights” I always ask rights to what . . .Report
Except when you say it, apparently. Then you assume good will.Report
The states in the civil war didn’t secede from a standpoint of good will. They wanted to continue enslaving other humans. They deserve the a$$ kicking they got.
Modern red states proposing seceding do so to keep the vestages of Jim Crow intact. Should they go that road they will deserve the a$$ kicking they will get.Report
FWIW, we really don’t have Red or Blue states.
We have Blue cities and Red exurbs.Report
We have red states. I live in one of them. Only one city in the state might be considered blue . . .Report
Fair enough, but for the most part any city in any state that can be credibly termed “large” will be Blue, while almost any exurban area will likely Red.
It’s important because any sort of secession talk collapses in the face of this.
I’m not aware of any other national conflict that has broken down along these lines.Report
with the exception of Georgia and Florida, the southern states don’t have “large” cities. Our state capitol – the blue city – is 166,383. Our next largest city is Gulfport at 72,926. Baton Rouge, LA is 227,470 and New Orleans – which is quite liberal – is only 388,424. Alabama’s largest city is Huntsville at 215,006; the state capitol is third largest at 200,603.
So no, southern states aren’t split between urban and exurban environments politically in any meaningful way.Report
@Philip H, what about Memphis (633K, metro area 1.3M), Nashville (690K, 1.96M metro), Charlotte (875K, 2.85M metro)? I’m reasonably confident that if you ask a Tennessean or a North Carolinan if they are “Southerners” they will mostly respond “yes.” Columbia SC is not itself a big city but its metro area is a respectable 830K.
I don’t know if you count Texas as a “southern” state but obviously its cities are very large and notably liberal. Virginia also has some pretty big cities I haven’t bothered to look up because for some reason Virginia has become a questionable case like Texas for inclusion in the “South” though within living memory this was not the case.Report
I don’t think New Jersey (which is uniquely weird) and a few of the New England states really fit your hypothesis.Report
Yugoslavia after the fall of Communism. Yugoslavia was federalized along ethnic-linguistic and unintentionally religious lines but there were Orthodox Serbs in Muslim Bosnia and Muslim Kosovo in big numbers. Same with Croatia in lesser numbers. It was a civil war on the census tract level.Report
Which modern red states are proposing they secede from the union? And which vestiges of Jim Crow are still intact (that they wish to preserve)?
The only state I remember hearing about recently was California, and I didn’t take that seriously either. This all seems like another example of “someone said a thing” news.Report
This was an interesting read: https://www.theatlantic.com/politics/archive/2021/12/oregon-secession-idaho-move-border/621087/
The secessionists have mostly unspecified grievances against the state government. The 2 that are specifed, outlawing artificial insemination of farm animals, and banning diesel fuel, are unlikely to ever be codified. )Though the ban on petrodiesel in favor of biodiesel looks interesting enough to at leas investigate.)Report
“Give me artificial insemination of farm animals or give me death.” – Patrick Henry, probably
Honestly, I think “redistricting” of states doesn’t sound like a particularly horrible idea as a representative democracy matures. It’s definitely tricky, but worth considering.
Leaving the Union altogether is a whole other story.Report
Gawds those guys again. Yeah there is massive antipathy to Governor Brown in the more rural counties and there’s basically just frustration that they see conservatives are always going to be outnumbered by liberals “from Portland” with “Portland” defined vaguely either as itself, its metro area, or any city with most of its people living within 10 miles of Interstate 5, including such places as Eugene and Salem. (EDIT TO ADD:) It seems to me to be more cultural than policy-driven. Partisan polarization on the national level may well be a significant current in this stream as well.
They are at least partially right, by the way, unless demographics or political coalitions shift significantly — the generally-Democratic-leaning urban areas in the Willamette Valley do swamp the more rural areas at the ballot box. A Republican running for statewide office in Oregon does so at a huge disadvantage. Query if that is a bad thing, not from a partisan preference perspective but simply a function of democracy — if most of the voters in a state are Democrats, then of course a Republican operates at a disadvantage. Same thing is true for a Democrat in an overwhelmingly Republican state, but you don’t hear much talk of Indiana Democrats trying to secede to Illinois.Report
There has been recent research that shows a good chunk of the January 6 insurrectionists come from deep blue states and cities where their chances of influencing politics is as close to zero as possible.Report
Texas for one – https://www.theguardian.com/us-news/2021/feb/05/texas-republicans-endorse-legislation-vote-secession
But equally as worrisome is this polling:
https://usmedia.buzz/2021/10/16/polls-show-mounting-support-for-state-secessions/Report
Interesting despite being an obvious “shock” poll – altho I didn’t see any Jim Crow motivations…
“These poll results indicate a strong ideological enmity and distrust between the two parties. About 83 percent of the Trump voters were concerned about radicalism and immorality ruining the country. Curiously, 62 percent of Biden voters were concerned about radicalism and immorality, but perhaps from a different perspective.”
Hey, at least we all do have something in common!
Still, it’s hard to take these shock polls too seriously. Answering “yes” to a pollster who asks you if you would support a red/blue split is a much different thing than actually voting for it.
Re: Texas: West said a thing on TV a year ago trying to raise money. Nothing remotely serious. It doesn’t appear to be anything more to it. Saying ridiculous things in order to be heard is an American tradition that predates all of us.Report
Honestly, the way I see Lost Cause as a political narrative category being thrown around since about 2010 +/- is… cringe.
Lost Cause historiography and Lost Cause as it’s being recycled as part of the 21st century narrative is just a bad use of an evocative term. We should all stop. Unless you’re quoting Jubal Early, I write everything off as mostly nonsense.
Probably the most likely secession movement that might be successful will be California through extreme Article 10 nullification legislation… a sort of passive-aggressive secession by legislating their own path damn the Feds. #Frémonters.Report
Well, if we all gave up on the Union somehow, it’s pretty clear that California would be the best candidate for “strong independent nation” that would emerge out of that chaos. Texas would do pretty well for itself too. In both cases there is substantial agriculture, industry, and sources of energy in or readily near the state; a big base of population; and a strong cultural identity of the state that seems to transcend the various regions and be celebrated by people of various political persuasions throughout. Californians like being Californians, the same way Texans like being Texans. (Perhaps you find Texans a bit more brash about it; or, perhaps not.)Report
Sure, I’m suggesting that secession, should it come, would be more like California just increasingly legislating as a country and eventually 10th amendmenting itself into a sort of twighlight state (pun intended) that just sort of drifts in its own direction. Never actually seceeding nor daring the Feds to act… just sort of vibing away.Report
Why not? The “California Regional Autonomous Zone Experimental District” jokes just start writing themselves.Report
All you need is CAL ZONE.Report
The conservative version would be the CAche… the Tory CAche… the CAcheToryReport
Chicken CAcheTory?Report
Stuff that I think MIGHT make it past 38-39 states:
Locking in the Supreme Court Justices at 9.
Um.
That’s pretty much it. I don’t see anything else getting as many as 33.Report
Offhand, I think there’d be something in campaign finance, term limits, redistricting, use of force, government collection of information / surveillance, eminent domain and federal land ownership, and probably something about the Federal Reserve. Not all guaranteed to meet approval, but a reasonable shot. A good compromise about voter authentication seems possible.Report
Those are all items where we ought to be able to craft some semi-bi-legislation, but I’m not entirely sure they rise to constitutional issues; partly because good constitutions address the theory and bad ones address the practice.
That is, establishing the eligibility requirements for voters is a constitutional issue… authenticating eligible voters isn’t… or, more accurately should authorize ‘the most practicable method’ available at any given moment. Else we ‘consitutionalize’ some 20th or 21st notion of authentication that’s wholly inadequate or antiquated given new tech or circumstances.
Which is why it probably makes sense to address the Electoral Count Act of 1887 with new legislation, and not a constitutional change… for example.
On the plus side, I could see a constitutional amendment movement around Data Privacy that skirts the mess of Roe/Casey, but does get at new Constitutional level issues of Privacy and Constitutional Security of Papers and Effects.Report
I like having someone more subsidiarist than me around. But that said, the accumulated weight of Court rulings has made some things that should be in the executive or legislative domains into Constitutional issues.Report
I may be in the minority but I still don’t really think that’s true. The dynamic I see is one where Congress is dysfunctional, the executive steps into the space, and things better resolved by the legislative process end up in the courts.Report
Exactly. Congress won’t pass a budget on time. They’ve punted on immigration reform numerous times. And on and on. SCOTUS keeps slapping down the follow-on executive actions and telling Congress to act, but it doesn’t. And too many Americans seem to think this is ok.
Can’t solve that with an amendment.Report
Maximus Subsidarus was my gladiator nameReport
Maybe I could see something like 38-39 of the states passing something like the 10th Amendment, but the 10th didn’t work. I don’t see why the 10th Amendment 2: Electric Boogaloo would work.Report
Yes, but I think even then you’ll have trouble getting people to sign off on that unless you find some way to depoliticize how those 9 are selected. Particularly at the moment, as progressives have openly fantasized about the forbidden fruit of Court-packing and conservatives have responded with “Try it and when we get power again later we’ll show you how it’s done.”
As I keep on touting, I think I came across the answer some time ago: the Missouri Plan, but no one seems to like the idea because it means their tribe won’t “win.” But this would be my proposed reform to a Second Constitution. I think it’s a better solution than term limits for the Justices or a guaranteed number of nominations per Presidency, both of which seem to me likely to increase rather than decrease the partisanship surrounding elevating accomplished and esteemed judges to the High Court (and thus coloring their decisions politically, both in fact and in perception, after they get there).
This is kind of the same thing as getting rid of the filibuster: whether or not it’s a good idea seems to be largely based on what one tribe or the other wants to do right now and the other side who is currently getting their way despite a minority of votes gets to say “Do it and you’ll be very unhappy with what happens when we inevitably take the majority in the future.” But the filibuster isn’t a Constitutional rule (yet, y’all might decide to make it one).Report
This is kind of the same thing as getting rid of the filibuster: whether or not it’s a good idea seems to be largely based on what one tribe or the other wants to do right now and the other side who is currently getting their way despite a minority of votes gets to say “Do it and you’ll be very unhappy with what happens when we inevitably take the majority in the future.” But the filibuster isn’t a Constitutional rule (yet, y’all might decide to make it one).
Well given that we know what Republicans will can off the filibuster whenever they think it stands in their way as the majority I think this horse is well away from its barn.Report
Let’s be fair. There’re a lot of Senators in both parties that like the filibuster. It saves them from having to take a lot of uncomfortable votes.Report
Point of order… while I appreciated the proposal, my objection with it was/is located in having the judiciary self-select.
I’m partial to a minimum age, say 50 and 18-yr term limits (or some other multiple that rotates justices and aligns with executive terms). Every president selects 2 justices per 4-yr term. up/down senate vote within 45-days of nomination. etc. etc. details. devils. and more etc.Report
Yes, but I think even then you’ll have trouble getting people to sign off on that unless you find some way to depoliticize how those 9 are selected.
Only in 10, maybe 12, states.Report
Things that would get a majority:
A 1A exception for CRT-banning.
Ending asylum.
No mandates for any vaccine, by either government or private entities.Report
Majorities are mostly interesting only because they are fickle. Super-duper-majorities? Now we’re talking.Report
Yeah, super-duper-majorities are the thing that makes the inequality of voting by state acceptable.Report
Eh, the thing that makes “Liberal Democracy” good is the “Liberal” part and not the “Democracy” part.
But you’ll remember this after November.Report
I am of the opinion that an actual constitutional convention as a solution to seemingly intractable political problems is actually a bit of a dodge, or maybe confusing cause and effect. The constitution isn’t preventing us from resolving any of these issues. In fact they aren’t being solved because they’re hard, and complicated, and the polity is divided on many of them. Even where polls suggest certain things are popular I tend to believe that they paper over a number of nuances and confounding factors. Further, as tempting as it is to say ‘change the constitution to expressly support my policy position’ I don’t see how the same people who are going to amend the law of the land to that effect when they can’t even pass a statute that would do it.Report
If a problem can be dealt with by legislation, it should be addressed that way. If any reasonable approach to the problem conflicts with the Constitution, then it should be addressed through amendments. (Note that neither of those steps should be taken lightly.)
We shouldn’t find ourselves shopping for the most favorable venue.Report
I’m of the even worse opinion that constitutions are definitionally framework agreements that oughtn’t be more than a few pages spelling out the rules.
Everything else, and most everything above is the prudential working out of laws for today and changing adjusting the laws of yesterday.
A couple items might make it to the level of an amendment.
And, as you correctly note, we have the power, but not the will (or consensus) to settle some of these items. A constitutional convention would purely be a trigger event to dissolution.
That is, we’d only call a constitutional convention to change the rules that change the regime (technical use) – like, if we wanted to move away from bi-cameral legislature to a parliamentary system or … God willing … usher in the new regnum of Our Lady of Guadeloupe for the Americas. You know, stuff like that.Report
This. A constitutional convention wouldn’t fix what ails the country because if the polity had that kind of consensus on these matters a constitutional convention would be unnecessary.
The two sides are just going to have to keep grinding away against each other going forward until demographics, arguments and meat world events resolve the matters one way or the other.Report
Waaaaah! But I want to win, on everything, RIGHT NOW!Report
Heck, who doesn’t?Report
To slightly push back on this, I think it is bit wrong to dismiss various factions as stating “I want a unicorn and pony now.” A big issue is that it there is wide-spread and popular support for a lot of issues and policy proposals but it constantly gets held up because of the creaky old constitution which gives outsized power and representation to the minority forces of reaction by effect and/or intent.*
BBB is a good example. There is widespread support for the bill and its many provisions including paid family leave. The bill is currently being held up by a former Green who went bipartisan somehow and a preening moralist who is out-of-date but very rich. Said preening moralist apparently did not understand the point of parental leave because in his mind women are all housewives. He also accused his own constituents of using child tax credit money for drugs.
And then it seems like the only thing that happens is that people are told to “vote harder” and there always seems to be a road block that ends up being an unelected co-President instead of a cranky backbencher. This waters down or completely stops the majority of pursuing anything and leads Presidents to increasingly rely on executive orders/admin stuff (which might get killed by the Supreme Court until the next Republican trifecta). The use of executive orders may or may not lead to people abandoning democracy in favor of “strong man” type rule which might be authoritarian but still gets things done. As we discussed previously, it is often hard to tell whether the roadblocks are deliberately obtuse or not.
*I happen to agree with the above posters on the perils of another Constitutional Convention but I think it is also very fair to state that if our system was designed to be this grinding, it is not very good or desirable except for the wealthy perhaps. There is also only so much it can happen before people lose faith in the government and democracy. Maybe ultra-libertarians are okay with this but I don’t think you or North are in that category.Report
Minor point of order:
The BBB is being held up by a former Green, an out of date moralist AND 50 REPUBLICANS.Report
Now now Chip, don’t you know only Democrats have agency in the Senate . . . .Report
In this case I have very little hope for the Republcians and a lot of ire for the former Green and preening out of date moralist.Report
The American constitution allows for the minority to gum up the works more than any other system but not if the majority is disciplined enough to overcome the majority. Since the Republicans under McConnell are more focused and in agreement on what they want, a Democratic Party can’t hinder them that much. This literally doesn’t happen in any other country. Even with a slight majority, the majority still gets to govern as they want until the next election. Americans only accept this out of received wisdom about counter-majoritarian institutions.Report
And it didn’t happen often in this country either, until the Republican Party evolved into an insurrection force.Report
Yup, but you don’t need a constitutional amendment to axe the filibuster. You could end that with 50 votes plus the tiebreaker Veep vote. It’s not in the constitution, it’s an odd legislative rule that Cocaine Mitch transformed into a bill devouring kaiju rampaging across the Senate floor.Report
Manchin looks like he is quite unlikely to do it even for his own legislation.Report
I agree. 50 Senator majorities suck (but not as much as 49 Senator minorities).Report
I mean, maybe we could have worked a little harder in MA and maybe Cunningham could have kept it in his pants? Then neither Sinema nor Manchin would be the deciding votes (and if you hate Manchin, wait until you see the piece of work that would replace him).
The core point remains. Anything popular enough to jump the hurdles to be made into a constitutional amendment can easily be addressed legislatively.Report
While that would certainly be a better situation I think the strategy was just all wrong. It should’ve started with what will Manchin vote for, let the squad make a show of defection if that’s what they have to do, and take as many wins as possible.Report
Oh yeah, if we wanna talk minute strategy for BBB I could write an entire book. This trying to wad every factions priorities into it and then make them shorter term to try and reach certain price ceilings is fishin nuts.Report
“…if our system was designed to be this grinding, it is not very good or desirable except for the wealthy perhaps”
Isn’t that opinion simply the product of your ideology though, even if you drop the last five words of that excerpt? I’m sure that disengaged or angry people have a sense that things don’t change as quickly as they’d like, but among the informed the only reason to believe that the system is too grinding is if you’re looking for radical change.
Let me try to put that more clearly. Statement A is “this portion of the system operates too slowly”. Would people across the political spectrum agree with A for a certain portion? I don’t think so, at least not beyond the retail level.Report
Looking at Maura’s list, I think that executive order reform and term limits would probably require constitutional amendments. Even if 100% of the population agreed with a certain policy, it would be difficult to see that policy implemented without amendment. Also, we should probably formalize the process of designating new states. Congressional pay shouldn’t require an amendment, but historically it has.Report
Under the 27th Amendment, Congress can grant itself a pay raise, but it can’t take effect until after the next election.Report
Sure, but executive order reform and term limits seem pretty orthogonal to the countries issues. Heck, in the latter case it’s a flat out terrible idea and shouldn’t even be considered as a statute, let alone as a constitutional amendment.
Heck in my own lifetime a term limit regime written into the constitution was responsible for the election of one of the most embarrassing (Trump) Presidents and one of the most destructive to the country’s well being (Bush II) Presidents in the history of this country.Report
https://en.wikipedia.org/wiki/Executive_Order_13440Report
A convention is very unlikely to be called unless there are already 38 (or nearly so) state legislatures that agree on what is to be done. Popular election of Senators — the only substantial structural change since the Civil War — happened when a majority of states were already doing it by end run, the courts were unwilling to call them on it, and we were within three-four states of actually calling a convention.
From my little corner of the lunatic fringe, a convention would most likely be the result of three or four regional blocks of state legislatures largely agreeing in advance on some sort of decentralization scheme, probably for different reasons in different regions. That is, they would agree on the need for some sort of devolution, although they may disagree on why.Report
Eds: Initiative not imitative in para. 1. Feel free to delete this after correcting.
Also, 1787, not 1887 in para. 5.Report
How about this:
“All citizens of the United States of America, over the age of eighteen years, having not been convicted of a felony, shall have a fundamental right to vote in any election, affecting the identity of any representative for, or direct initiative of, any jurisdiction or district of a jurisdiction in which they maintain their primary domicile. The right to vote shall include a right to a secret ballot, and the right to have that ballot accurately counted. No state law, regulation, practice, or usage shall impose a substantial burden upon any citizen’s exercise of this right. Equality of ability to vote shall not be construed as evidence of the absence of a substantial burden. Congress shall have the power to enforce this article by appropriate legislation.”
Note that this still leaves up to Congress and the Courts to determine what a “substantial burden” on the voting right is. It wouldn’t necessarily eliminate registration. It wouldn’t necessarily prohibit anti-ballot harvesting laws. Equality of access to the ballot is partially covered by the 14th,15th, 19th, and 26th Amendments, but even put together they still only imply the existence of a right to vote. Currently, that right remains an unenumerated one.
The penultimate sentence would put to rest the basic problem in Brnovich v. DNC: the reasoning that if everyone is equally burdened by a particular procedure the burden is permissible, because of the equality. Maybe that’s good reasoning from an Equal Protections point of view and maybe not, but if there is a different enumerated right implicated, particularly one that points out that equality of access is not the same thing as having meaningful access in the first place, the defining right of citizenship will be made that much stronger.Report
As for the OP’s list of things the author would like discussed, I’ll sound off on them:
1. Ballot Zombies or dead persons that are not cleared from the ballot roles. I don’t think this requires a Constitutional amendment. To my knowledge, there are good-faith efforts, largely effective, to periodically purge voter rolls of (among others) dead voters in most of the states. Genya Coulter, loosely affiliated with our community, would be a good resource to discuss that.
2. Executive Dictatorship or any governmental person using executive order to circumvent Congress. I would sign off on the idea that an Executive Order may not contradict any Act of Congress, ruling of a Federal Court, nor any CFR properly adopted through the APA. But I believe that is already the law anyway.
3. Ballot Harvesting or persons who are not sworn to duty by their Secretary of Election to collect ballots in an official capacity. I can sign off on the idea that a person who collects absentee ballots cast by other persons ought be held accountable for the validity of the ballots they harvest. I trust that local elections officials can find a way to make that happen; so again, I don’t see that this needs to be a Constitutional issue.
4. An addendum to the Fourth Amendment … To be secure in our digital persona and possessions, to ban civil asset forfeiture. I could use some more discussion about what the concepts of “digital persona and possessions” might be. But in general, I like the idea.
5. A right to privacy. This shall apply to all of our issues, be they medical, digital, anything identifying such as digital searches, our home addresses, credit checks not signed off for by us, this list can and should be exhaustive! The basic idea of an individual right to privacy I endorse. Pre-litigating its scope and application and the inevitable exceptions strikes me as immensely impractical.
6. Reciprocity between states I don’t know what this means or how it is different than the existing Full Faith and Credit Clause.
7. Term limits for all Congress persons so that no Congress person shall exceed twelve years in office be it by vote or appointment. Disagree. Yes, it’s obnoxious that people spend entire careers in Congress. But that’s something that is in the control of voters and I don’t like the idea of taking that decision out of their hands.
8. Termination of all congressional pay, health care, pensions, in any form on the Congress persons last day in office. (If Social Security is good enough for the population then it is good enough for them.) Seems like a good idea in theory, my worry is does this create a vulnerability to corruption, increasing the incentive the officeholder has to sell out to private interests so as to enjoy good pay, health care, and pension upon retirement.
9. All laws must Sunset and shall last no more than 20 years from date of effect. They cannot be reauthorized and MUST be fully re-voted upon and resigned by the president every time. Nope. Significant benefits which make up significant parts of the Federal budget — social security, medicare, medicaid — along with significant guarantees of important rights — like the Civil Rights Acts — would vanish in a polarized environment.
10. All governmental divisions shall fall under the purview of Congress and as such their administrators shall be discharge-able or impeachable by a vote of congress. There shall be no immunity from prosecution for any official who fails to do their job while upholding an oath to COTUS. Again, I’m not sure how this is different than the status quo ante. If Congress wished, it could exercise this power right now under existing Constitutional and legislative authority.
11. An end to Qualified Immunity. Yes, absolutely.
12. Make it a high crime for any law enforcement personnel to have any form of sex with any suspect or person in custody with no exceptions. I agree with the proposal. I don’t think this needs to be a Constitutional amendment.
13. Senators and Representatives shall be subject to recall by their states and by initiative petition by their constituents. I’m indifferent, mildly against. Recalls as applied against state level officials, in states which have them, almost always fail and generally accomplish no more than distracting the office-holder from doing their job. They can have potentially hugely anti-democratic effect, as illustrated by the recent effort to recall California’s Governor — had it succeeded, his successor would have been someone only 13% of the electorate had chosen. The point of a recall is to keep a politician on a short leash with respect to doing things that the voters want. If California had wound up with Governor Larry Elder, the opposite would have happened.
14. No person working for the Federal Government shall invest in publicly traded stocks, or bonds, be they foreign or domestic. Disagree: civil servants, soldiers, etc. should be able to use their property the same as anyone else BUT I can agree that people holding elected office or whose jobs involve a substantial degree of discretion can be required to place their assets in a blind trust.
15. Congressional salaries shall be fixed to no more than 150% of the average hourly constituent of the area they represent. Presidential salary shall be fixed to 200% of the average Social Security beneficiary. Again, I’m worried that this might increase the corruptibility of officeholders. It’s appropriate and fair that people who hold high office be compensated reasonably for doing it, else the only people who will seek office will all be already rich.
16. In order to curtail lobbying efforts and bring control back to the local level, Congress shall meet virtually from their local offices and shall not keep an office or domicile within the greater metropolitan area of the District of Columbia unless their district happens to be in that area. I get where this proposal is going, but gathering the legislators in one place that they might personally interact and engage in the kinds of compromises, horse trades, and negotiations that are necessary for legislation to happen at all seems necessary. And more to the point, I don’t think this needs to be a part of the Constitution.
17. Statehood shall be offered to Puerto Rico and all other U.S. holdings. Yes. Let’s be clear, this applies to all of the following: D.C., Puerto Rico, USVI, CNMI, and American Samoa. I don’t care whether they vote for Republicans or Democrats. They’re Americans, they’re taxpayers, they deserve full representation in Congress on an equal footing with those of us who live in existing States. Any current extrastatial territory over which the United States holds sovereignty and upon which American citizens make their domicile should afford such an opportunity to its citizens.Report
I personally disagree with term limits, but I’m not fond of your argument against them. There are several ways that we limit the choices of the voter, and the Constitution itself is largely a check on democracy. Besides, it’s not that anyone wants to restrict their own right to vote for a candidate; they want to restrict the right of other jurisdictions to vote for a candidate, and if the argument can be made that a restriction is beneficial, then it’s necessary that we all share that restriction. My preference is still that we reduce the power of the federal government to the point that those officeholders I can’t vote for have minimal influence on my life.Report
How very Libertarian of you. Now, would accept them having minimal influence on the live of others, say by not being able to strike down Roe? Because the office holder of say Texas sure seem to think they can have an impact on my daughters lives by forcing the SCOTUS to toss Roe and Republican senators sure seem to want to prevent it from becoming federal law and thus a national standard.Report
Considering that the Roe decision was a judicial overreach (something that even RBG could admit), you can’t make a libertarian argument in defense of it. Also, if Roe were overturned, the officials that you voted for would be deciding the law. Even beyond that, I’m not a libertarian, although I respect it as a critique, and you’re a socialist, so you can’t even claim to respect it as a critique, so you have no grounds to hold me to a libertarian standard.Report
You can trivially make a libertarian argument in defense of the majority opinion in Roe v Wade. What you can’t make is a tenable Constitutional argument in favor of it.Report
The iron clad argument for me against term limits is that it drains institutional knowledge out of the elected office and instead empowers the civil servants and lobbyists around the elected office. If we want our elected representatives to perpetually be wide eyed naïfs, gently led by the hand by their party officials/leaders on how to vote and gently led by the hand by their staff, the bureaucracy and the lobbyists on all other matters of their office then term limits are the ticket.
Some of the most effective politicians in history have been long standing wily old goats who knew where the bodies were buried and how the system worked. Term limits seems and compensation caps seem tailor designed for the purpose of reducing representative government offices to a powerless and inconsequential hobby of the wealthy.Report
I also reluctantly oppose term limits, based on what friends have reported about Virginia politics. The one-term governorship seems to churn through talent, then slight talent, then less talent than that. I don’t buy the argument that lobbyists or party officials would have more sway under term limits, though.Report
Someone has to know how the stuff gets done. If every elected representative is term limited out shortly after they figure out how stuff gets done then that knowledge will rest somewhere else. If elected representatives come and go as a matter of law, then the knowledge will rest with unelected consistent figures around them. In our country that’d be lobbyists, civil servants and party officials.Report
If it takes 15 years to figure out how to do something, it’s too complicated. These are people who got a law or medical degree in four, without staff.
I think the main benefit that the old-timers have in our current system is tenure rather than knowledge. The thing about the party structure is you can always ignore it. And if you’re not running again, you can ignore lobbyists.
Now, I’m sure a lot of my thinking on this is influenced by a desire to see smaller government. If one envisions the need for legislators to be experts on everything from ASCII to zinc, then one would be more likely to favor legislative experience (although half of the Senate is older than ASCII, and a few are older than zinc). Oh, I like that line, so I’m going to end on it.Report
Politics is relationship building, institution learning and experience building too. For that matter I wouldn’t want doctors to be booted from their practice after 15 years.
But, I’ll definitely grant that a lot of the original posts list was very small government oriented. In a minimalist government where the elected representatives are mostly powerless, free of responsibility and poorly compensated term limits would make sense to let each independently wealthy patrician politician who wanted to take turns wearing the fancy hat.
All that said, I agree the current crop of politicians are getting quite ludicrously elderly. I’m not ready to start worrying yet unless their replacements all end up being only ten or so years younger.Report
6. My guess is carry permits for concealed weapons.Report
This, plus many (most?) vocational certifications… not to mention mercantile licenses.
There’s a lot of things you can do here, but not three miles down the road over there. Legitimately there’s a discrepancy over whether that thing over there meets our standards over here… but less legitimately we’d rather not encourage that thing over there to come over here for reasons that have less to do with proper oversight.
I’m not entirely sure you could simply wave it away with a constitutional wave… but it might be useful if the govt turned it’s commerce clause eyes in this direction rather than where it currently gazes.Report
That’s a good point (about occupational licensing). And I agree it doesn’t need to be a constitutional thing, it could just be a court decision that states have to honor other state licenses until a resident has had a reasonable amount of time to meet the local requirements.Report
On 3: I object to the use of the term “absentee”. >90% of voters in aggregate in the 13 western states now receive their ballot by mail. In some of those, in-person voting is effectively reserved for special cases. In Hawaii, for example, there are only eight places in the entire state where someone can vote in person on election day. (Side note: TTBOMK, the HR1/S1 election bills require all of those states to recreate an expensive, parallel, precinct-based in-person system.)
On 14: As I’ve pointed out before, it simply wasn’t possible to place President Trump’s assets in a blind trust. Too many cases where his contribution to the LLC was his name, periodic presence, etc, etc. Requiring him to simply bail from it all would likely collapse the whole thing as various trigger events on loans occurred. When he dies, the kids are going to spend a decade unwinding things gracefully.Report
If it is impossible for an individual to separate themselves from their businesses, maybe they SHOULD be categorically barred from office.Report
Such a rule applied to my state’s legislature would disqualify most of the current members. When elected, they don’t sell their business, or farm/ranch, or resign from partnerships.Report
Yes, and…?
As with them buying and selling stocks, why should we accept them having such a conflict of interest?Report
Tacked on to Article I, Section 5, Clause 2: “However, other than the exceptions specified in this Article, neither House’s rules may require more than a simple majority of votes of the members present.”Report
A surprise from Ossoff. (I doubt it’ll get past the House, though.)
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