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Three Amendments

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The United States was explicitly founded as a secular state. The Founders were transplanted Englishmen whose direct ancestors had fled Britain during a century and a half of religious persecution. They were steeped in the tradition of the bitter English Civil War, which was as much a war of religion as it was a war to curb the absolutism of Charles I. They had all witnessed the ongoing debates over “establishment”: whether the Church of England would be the official church of the American colonies, and thus levy a tax for the maintenance of its prelates, or whether there would be no officially sanctioned religion in British America. With these lessons in mind, as well as the prejudices of their time against Popery and the Inquisition, the Founders specifically prohibited the establishment of any national religion in the new country[1].

Instead, our Founders hoped for the development of a “civic religion” that would bring the citizens of America by exalting new virtues: republicanism, rationalism and the supremacy of law over man. The “gospel” of this new faith was originally meant to be the Articles of Confederation and the individual State Constitutions. Because of the different conditions and tempers of the new states, their constitutions clearly would not serve as a unifying force; while the Articles proved their inadequacy almost immediately, which caused their replacement by a new constitution in 1787. Thus it is that the Constitution and its amendments are the closest thing to a unifying American religion that we have; and indeed, the document has often been elevated more highly than it ought to be. Anyone who has read the “three-fifths compromise” cannot have any doubts on that subject.

timeline

The fact that our Constitution has been modified 27 times since its ratification demonstrates that the Founders struck a good balance between stability and flexibility. They were all men of property who valued sound, steady government; but they were also rationalists who recognized that no system of government could endure forever without change. They were not democrats in the ancient Greek tradition: they feared the whims and gullibility of the mob as much as the tyranny of a despotic king or tyrant. Like the apparatus of government they had just erected in the Constitution, they established a system of amendment that was cumbersome, slow and most importantly – not by direct popular vote.

This has resulted in relatively few amendments to the Constitution given how much the world has changed since the late 18th century. These alterations to our charter have tended to come in clumpy concentrations, rather than as a continuous drip of modifications. Twenty seven amendments in 227 years since ratification results in an average of one amendment every eight and a half years; but in reality, we have seen years pass without any amendments at all until suddenly there were three or four together in a single decade. Citizens and lawmakers recognize that changing our fundamental charter of freedom is not a frivolous affair: it is usually undertaken only when abuses or deficiencies are so evident as to mobilize the mass support that is needed to move Congress and the States. If we ignore the Bill of Rights, which in reality were part of the “enact then amend” pact during the ratification of the Constitution, then we have three clear waves of amendments that responded to the nature of the times:

  1. The Reconstruction wave: The 13th, 14th and 15th Amendments rode the wave of Republican majorities in Congress following the Civil War to prohibit slavery and protect the rights of the former slaves;
  2. The Progressive Era wave: The 16th, 17th, 18th and 19th Amendments were all efforts by the “Progressive Society” to fight the perceived evils of the time: income inequality, machine politics, the evil of “demon rum” and gender inequality;
  3. The Civil Rights Era wave: the 23rd, 24th and 26th Amendments were additional efforts to extend the suffrage to those who were still being discriminated against, especially black Americans and young men going to Vietnam who were “old enough to fight, old enough to vote”.

These are the amendments most people remember after having to learn all 27 in high school American government class. These are the amendments which bring to light the best in America: the promise of liberty and equality, of a fair deal for everyone. The procedural amendments, like the 11th, 12th, 20th and 25th are usually forgotten. Only the 22nd Amendment, establishing a two-term limit to the Presidency, lives on because it is denounced or celebrated every 4 or 8 years when the party losing an election reflects that the opponent’s mandate “won’t last forever”.

It is perhaps not a coincidence that each wave of “liberating reform”, if I might use the term, is approximately 40 to 50 years apart from the last[2]:

wavesofreform

On this basis, we are “due” a new wave of amendments right about now.  It has already been 44 years since the end of the last big progressive push and the deficiencies in our system of governance have become plentiful and obvious. The growth of inequality and the shrinking of the middle class; the corruption of our electoral process by vast, anonymous donors and entities; the growing invasion of our privacy and erosion of our rights by private enterprise and public institutions; and the open sore of race and class relations that have returned to inflammatory levels: these are the defining issues of our times that have come to a head in the past half-decade.

They are the burden of our generation and we must confront them and resolve them, and so pass on the institutions of government, purged and refortified, to the next generation. The next great wave of reform ought to be the fight to save the Republic from plutocracy.

In proposing these amendments, I make a number of assumptions which you may not agree. I will offer no defense at this time, having done so previous articles. It is a principle of good analysis to list all assumptions at the beginning of a work, in order to avoid falling into certain biases, so what follows is a list of the fundamentals of my argument:

  1. Corporations are not and can never be people and have no political rights whatsoever attached to them. They are created by law, and thus may be regulated by legislatures in any manner these see fit;
  2. Money, in the shape of campaign funding or contributions, does not equate with freedom of speech. Contributions, both individual and corporate, ought to be open to regulation or prohibition without this constituting an infringement of anyone’s freedom of expression. Spending on elections outside of direct contributions to campaigns or candidates seems to me to be less pernicious when done by individuals, but there is no right to anonymity and regulators can and should require full disclosure of all contributors to all electoral communication;
  3. The right of citizens to elect their representatives is a fundamental, natural and inalienable right, which may be limited only in certain circumstances related to an individual’s maturity, mental capacity and criminal or treasonous behavior and never without due process of law. Enabling citizens to vote is therefore a primary responsibility of government;
  4. The Founders considered public office a duty to be borne by citizens as one of many such, including military service and sitting on a jury; they did not consider it a permanent career. Additionally, the creation of permanent caste of career politicians tends towards a concentration of power and the creation of dynasty which is unwholesome for the Republic. Finally, the arrival of new representatives with new ideas that reflect the times is beneficial, though there is some loss of wisdom and experience from the obligatory retirement of older members of elected bodies.

One final note before I start: I am not a Constitutional lawyer and the wording I have chosen may not be the most appropriate. I’d ask readers to focus on the intention of the amendments; the wording can be changed if these ever became popular measures.

The 28th Amendment

The proposal for the next amendment to our Constitution deals with the issue of corporate personhood. Our current Supreme Court, under Chief Justice Roberts, has by the narrowest of majorities decided to overthrow decades of precedent and all logic to forbid the Congress from regulating the political speech of juridical persons[3]. Previous Courts had had no problem with the imposition of strict limitations and regulation of “business speech” by state and federal legislatures; the Roberts Court has invoked the First Amendment’s freedom of speech clause to strip away much of that power of regulation, even though the First Amendment ought to be clearly interpreted as an exposition of natural rights pertaining to natural persons. Thus it is necessary, though it ought not to be, to make this fundamental difference clear in the Constitution. That our Founders did not do so from the first is not an oversight on their part; they could never have considered such an abomination to be possible in the first place.

The wording for this proposed amendment is a modification of one submitted by Senator Bernie Sanders of Vermont[4].

Proposed:

SECTION 1. The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations, limited liability companies, or any other juridical entities established under the laws of any state, the United States, or any foreign state.

SECTION 2. Such juridical entities established under law are subject to regulation by the people through the legislative process so long as such regulations are consistent with the powers of Congress and the States and do not limit the freedom of the press.

SECTION 3. Congress and the States shall have the power to regulate and set limits on all contributions and expenditures for in any election of any candidate for public office or the vote upon any ballot measure submitted to the people, by both natural and juridical persons, including a candidate’s own spending, and to authorize the establishment of political committees to receive, spend, and publicly disclose the sources of those contributions and expenditures. This power includes the establishment of a public electoral fund and the requirement that all electoral contributions and expenditures be submitted to and a managed through said fund with the limits and the procedures that Congress or the States establish.

The first section establishes what should be an obvious fact: Constitutional rights describe the natural rights of the people and the limitations of government over the same. It makes clear that artificial entities, created under law, have no rights that these same laws do not grant to them.

The second section recognizes that the legislative power that establishes juridical entities also has the power to regulate or limit them in any way it sees fit.

Finally, the third section gives to the federal and state legislatures broad powers to regulate contributions and expenditures for elections to public offices as well as on ballot measures, plebiscites and other questions put to the public. This section prohibits nothing, but it does allow the representatives of the public to regulate the amount and flow of money in order to limit pre- and post-electoral corruption.

The 29th Amendment

As long as there have been public elections, there has been both voter fraud as well as efforts to limit the franchise by legal and illegal means. Our Republic is not immune to these issues; in fact, our history provides the most complete case of all of these abuses of the democratic process of any nation. We have the example of the infamous “hanging chads” of the 2000 Presidential Election; and most recently, the efforts of over 13 states to pass voter identification laws and join the 12 states where these are already enacted; many consider to be poorly concealed efforts at reducing voter turnout among the poor and minorities (which are so often the same thing).

voterid

Interestingly enough, our Constitution makes no explicit mention of the right to vote as a universal right: yet it must be for democracy to function. Our nation has come to this conclusion very slowly. The 29th Amendment would be the culmination of the work of previous generations in the form of the 15th, 17th, 19th, 24th and 26th Amendments.

Proposed:

SECTION 1. Congress and the States shall make no law which disenfranchises any citizen of the United States of America, except in the following cases:

1.a. A minimum age requirement as established by the 26th Amendment.

1.b.  In the case of severe mental incapacity, certified by a qualified medical professional before any election;

1.c. In the case of a felony conviction during the period of incarceration;

1.d. In cases of conviction for treason, the individual may be disenfranchised for life.

SECTION 2. Should Congress or the States require the presentation of any documentation or legislative body must make provision to provide the said documentation or proof of identity upon request, free of charge and in an expeditious manner.

SECTION 3. Congress and the States shall ensure with the necessary legislation that the day of any regular or special election, as well as that of any measure submitted to the public in a referendum or plebiscite, shall be declared a public holiday.

SECTION 4. Districts represented by members of Congress or state legislatures shall be drawn by an independent commission created by each state legislature for the purpose.

4.a. No serving or incumbent official or legislator, at the state or federal level, may form part of the commission;

4.b. The commission will redraw district boundaries in such a manner as to ensure that these are as nearly equal in population as practicable with a variance of no more than 1% from the mean;

4.c. District boundaries shall respect existing political subdivisions where possible; shall be contiguous and compact, conforming to a circular, rectangular or hexagonal shape where possible;

4.d. No other criteria not otherwise required by federal law shall be used by the commission to draw boundaries.

4.e. State legislatures will vote on the commission’s proposal within the same session of the legislature that the proposal is submitted. State legislatures may approve or reject, but not amend the proposal. If a state legislature fails to approve a proposed redistricting plan within a single legislative session, the state Supreme Court will select from the submitted plans which shall be implemented.

The first section establishes that the franchise is a natural right of all citizens which no law may revoke except under the circumstances listed in the four subsections. Because there is a legitimate interest in reducing the possibility of electoral fraud through voter identification, the second section recognizes these measures, but requires that they be made available free of charge to the public and in such manner that no one is practically disenfranchised by an onerous, costly or time-consuming process of application for voter identification.

Finally, the fourth section deals with the egregious problem of gerrymandering. It is modeled after the highly successful Constitution of Iowa[5], which has been operating its redistricting process in an efficient and highly non-partisan manner since 1980.

The 30th Amendment

Building upon the precedent of the 22nd Amendment, the proposed 30th Amendment would impose term limits on all elected public offices, at the federal and state levels, for both the Executive and Legislative branches of government. This amendment would exclude other types of elective offices, including in the judiciary[6], in law enforcement[7] and at the municipal level[8].

Proposed:

SECTION 1. No individual may hold the same elected office in the executive or legislative branches at Federal or State level for more than two terms.

SECTION 2. No individual may serve in elected offices in the executive or legislative branches at the Federal or State level for more than 20 years in total.

SECTION 3. The term for a Justice of the Supreme Court of the United States shall be a maximum of 10 years and no individual may hold office for more than a single term.

SECTION 4. This amendment will not affect term limitations in State constitutions that are more restrictive than those enumerated in the preceding sections.

SECTION 5. The limitations of this amendment will be enforced as of the first national election after enactment and time in office of individuals prior to that election will not be counted towards the said limits.

5.a. This limitation will not apply to sitting Justices at the time of enactment of this amendment.

There is a trade-off between term limits that reduce entrenched interests and power bases and the accumulated wisdom of long-time elected officials. Twenty years in government service ought to be long enough for anyone, and individuals can also serve in unelected capacities as well; so the experience is not necessarily lost. Even Supreme Court Justices should probably be renewed more often: more frequent nominations means that the “cost” of approving a Justice is lowered and thus nominations might be approved with less partisan delay in Congress.

“We the People…” are the opening words of our sublime Constitution, the oldest charter in continuous operation in the world today. It remains so because the people have always responded to the challenges that fate has confronted us with. With the help and blessing of a kind Providence, we shall continue to do so. If democracy fails in America, it will fail everywhere; and then humanity will live through a long, squalid nightfall. The Constitution was born in a secretive gathering of reformers far exceeding their mandate in Philadelphia; it must be carried on be each generation of Americans. It is our sacred duty to try.

wethepeople


Sources and Notes

[1] It was considered important enough to be the very first clause of the very first amendment to the new national charter: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

[2] I grant that the lag between the first and second wave was almost double the “average”, but then again, the Bill of Rights was a whopper; and also American politics was uniquely deadlocked after the Mexican-American War in 1846 to1848 and the Compromise of 1850  brought the slavery issue to the forefront.

[3] A juridical or juristic person is an entity created by law. It is granted under that law certain rights, privileges, responsibilities and liabilities similar to those of natural persons so that it may undertake activities previously restricted to these, such as the ownership of property and capital. A persona ficta, however, is fundamentally different from a natural person, in that the latter has natural and unalienable rights which no law or government can remove (in our legal and constitutional order) whereas the former does not.

[4] “Sanders Files ‘Saving American Democracy Amendment’”, Press Release, Bernie Sanders United States Senate, 8 December 2011

[5] “About Redistricting,” The Iowa Legislature

[6] Most elective judicial positions are at the local level, but nota ll. Some states allow for the election of trial and appellate court judges.

[7] Many sheriffs are elected.

[8] City and municipal elections are subject to state limitations and regulated by state constitutions.

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Discussion

4 Responses to “Three Amendments”

  1. Amendment 29 might include too much, but if it passes, I’m for it either way. One lesson from Wisconsin, though: it talks about “existing political subdivisions.” Ward lines, which can be just a few blocks across, are used as political subdivisions to gerrymander in cities.

    Posted by Sue Burke | March 24, 2015, 08:55
    • You’re probably right, Sue. Truth be told, I had almost finished the article when I remembered the gerrymandering provision; and rather than rewrite it as “Four Amendments”, I simply tacked it on to the 29th Amendment proposal. In other words, I was lazy. But it almost certainly would be better as a stand alone amendment.

      Your admonition is a good one; but I don’t think amendments can or should attempt to define everything so minutely that neither the letter nor the spirit can be circumvented. For one thing, it’s not possible: people will always be able to twist the law to suit them. For another, I believe we must have some trust in the people to maintain control of their representatives: if these begin to act out of line, there are avenues available to bring them back in line. With 50 states and all the variety that exists, it would be impossible to right an amendment that covers every eventuality, from the types of available subdivisions to the composition of the “non-partisan” boards. Even with these complications, passing such an amendment would be a huge step forward and make gerrymandering far less of a problem than it is today, while perhaps not eliminating it.

      Posted by fdbetancor | March 24, 2015, 10:27
  2. I think an amendment against gerrymandering is also essential, and truly competitive districts would go a long way toward reducing the gridlock in politics today.

    Posted by Sue Burke | March 23, 2015, 22:37

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