I teach a course on Constitutional Law as an adjunct professor at a nearby law school and during class recently, we had a lengthy discussion about to what extent the United States Constitution was operating the way the framers intended. I did not want things to degenerate into a partisan debate (I was only partially successful) nor did I want them to scrap the existing document and start over or otherwise do a wholesale re-write of Madison's work, so I asked them to try to set aside their partisan views and just consider what systemic or structural problems have been revealed in the 220 years it has operated that could be "fixed" relatively simply, yet would preserve or possibly restore the careful system of checks and balances envisioned by the framers.
After much discussion (and some dissension), I asked the students to come up up with constitutional amendments that would "tweak" the basic document in a way that they thought would implement the vision of the founders and do so in a way that would attract broad bipartisan support from the public. I found the exercise stimulating and I thought I would share here the three proposals that I liked the best along with the problem that is sought to be addressed. Some of this is not new but maybe more nationwide debate about some of these things wouldn't hurt:
28th Amendment
The President and the Congress, except in time of war declared pursuant to Article 1, Section 8 or when authorized by two-thirds of the members of both houses of Congress, shall ensure that no expenses of the United States be incurred nor funds expended during the fiscal year established by Congress which exceed the total revenues on hand and anticipated during such fiscal year
This proposed "balanced budget" amendment addresses the lack of any constitutional requirement for fiscal responsibility by the President or Congress. Almost all of the students recognized that even a government that prints its own money simply cannot indefinitely and continuously spend money that it doesn't have and won't collect for another generation or two.
29th Amendment
No law shall embrace more than one object, which shall be expressed in its title. Nor shall any law be amended solely by reference to its title, but the act or the section amended shall be re-enacted and published at length.
The legislative process as currently conducted allows a single bill include, or be amended to include, any number of unrelated matters (read "pork"). This really muddies the waters when a Representative or Senator has to explain or defend a vote to their constituents. Thus, an up or down vote on a bill really matters little in terms of accountability for a Senator or Congressman.
30th Amendment
The provisions of this Constitution shall be construed according to the traditional canons used by the courts to construe statutes and other legislative enactments provided however, that the intent of any such provision shall be principally determined by reference to the plain and ordinary meaning of the words used unless otherwise defined herein and provided further that no subsequent amendment shall be construed to repeal or modify any other provision of this Constitution unless such repeal or modification is expressly provided for in the amendment as ratified.
The root of the controversy over the proper role of a federal judge is that the federal courts have increasingly different criteria to interpret constitutional provisions from those they apply to other types of law and thus have become a place where unelected officials, who hold their appointments for life, set national policy according to their own views instead of merely resolving constitutional issue according to the document as written and amended. As a result, the three way compact between the federal government, the states and the people has become malleable and unpredictable and policy views rather than judicial expertise have become the primary criteria by which federal judges are selected. This proposed amendment would require that the the same rules of construction used to interpret statutes, would be used to interpret the provisions of the Constitution. The theory here is that doing so would make it more difficult for judges (whether liberal or conservative - they all do it) to become the de facto "framers" of the Constitution and by the terms of the document itself, would have to defer to the plain language used as is done in construing statutes.
I know that some, if not all three of these proposals, would be controversial in some quarters. I also know that, given whose ox would be gored, none of these amendments are likely to find their way out of Congress to the states. Oh well, one can dream! Besides, the whole exercise was kind of fun.
3 comments:
This is a tad oversimplified and looks like political rhetoric meant for non-lawyers, itself.
“Plain and ordinary meaning” sounds nice, but it doesn't resolve what words actually mean. Words exist in the context of other words. Now, sure, non-lawyers like to say “the words mean what they say.” But, people with longer attention spans realize that words often mean what other words define them to mean. So, for example, in Title 26 (aka the IRC), words are often “qualified.” There are “qualified plans” and “qualified hedges.” Just because Congress says “plan” doesn't mean any plan, instead means a certain kind of plan defined elsewhere in the statute. And, relative to other parts of the law, tax law is easy. Strangely, I don't see tax lawyers demanding that Congress start undefining words. This probably has something to do with the fact that tax lawyers (unlike appellate lawyers in constitutional controversies – and some judges) don't need to lower themselves to the level of non-lawyers to find work.
Secondly, without exception the winning party in a constitutional battle NEVER says that the judges wrote “policy.” The winning party says that the judges “interpereted” the law. The inferior lawyers (that is, the losers) will always claim that the judges “made policy” or something like that.
So, how do you articulate a difference between “policy” and “law.” I doubt that you even engaged your students on that level. And I doubt that you seriously engaged them about how the constitution includes made parts which, if enacted today, would sound very much like policy. For instance, the idea that people should be protected by the state equally sounds like policy to me. Same with the idea that it is good policy t compensate people for “taken” property.
And really, do think that any judge will ever say “I am interpreting the constitution according to my own views?” Let me assure you that of every federal judge I know (and I know many personally) not a single one says that. Sure the losers in litigation say that to the lay people, but that is just making up for an inferior position.
It makes me sad that there are law students that think that it is valid to throw out applause lines like this.
Well, we certainly aren't talking about the Internal Revenue Code here. The Constitution is a pretty simple and straightforward document that was written for non-lawyers and says what is says in pretty easily understood words - it is we lawyers who have made it complicated.
Call me old fashioned but I think that in a representative democracy, national "policy," especially as exemplified in the document that spells out our basic rights and privileges as citizens along with express limitations on what our government can and can't do, should only be made or changed by those we elect (and can un-elect if we don't like the result), using the process that was crafted expressly for that purpose. That method is certainly unweildy and time consuming but I don't see that as a bad thing.
I spent almost 30 years in politics and held elected office for a dozen of those years and I don't have any illusions that federal judges, whether they call themselves liberal or conservative, will give up the reins of power that we let them award themselves but I certainly don't have to like it and I am pleased that at least some law students don't like it either.
I'm sorry if my views and/or those of my students that I chose to post here, make you sad. The fact that these are my views make me sad.
First of all, the constitution is hardly straightforward. The constitution is a complicated document subject to various interpretations. It refers to other sources of law. At times it appears contradictory.
The constitution itself was a “policy” document, in that it was intended to achieve some good, as, I guess are all laws, whether written by a legislature, constitutional convention or a judge.
My guess is that the constitution, in fact, was written for what passed for lawyers at the time. It certainly wasn't aimed at black people. Or poor people. It was written by and for the smartest of us.
Third, the constitution doesn't require that laws be made or changed by people that “we” elect. In fact, the constitutional conventions were not elected. Moreover, there are many anti-democratic processes in the constitution. Elections are held on a schedule, so even if we don't like our elected representatives, we have to wait until the election cycle to change them (unless they die or are impeached). Babies, prisoners, and the dead can't vote. (And really, shouldn't prisoners be able to democratically change the law to secure their freedom?) And, judges must decide for themselves what they think the constitution means and not act contrary to it. This last past is a little hard for some people that think that judges should just do what they say they should.
Your vies don't make me sad. They are fairly typical views held by the majority of non-lawyers. I don't think that you really hold them. Instead, I think that you have convinced yourself that your preferred construction of the constitution somehow is objectively correct and NOT a construction.
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