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An ossified Constitution or a lack of knowledge?
Posted by: McQ on Wednesday, September 06, 2006

In discussing the "ossified nature of our Consitutional system", David Bell shares the following with us:
I do share, though, Levinson's frustration at the incredibly ossified nature of our constitutional system, supported by mindless reverence for founding fathers who understood their imperfections far better than we do, and who mostly never imagined the system they designed lasting for so long without major changes. Trying to explain certain aspects of it—the Electoral College, or North Dakota and California both having two senators, for instance—to foreign friends usually produces looks of stupefaction. But if the 2000 election failed to produce even the beginning of a serious move towards constitutional reform, it's hard to see what will.
Just take one example of the several Bell presents. The reason ND and CA have two senators is the upper chamber was designed to have equal representation for the states (where no state was more powerful than the other) while the lower chamber provided proportional representation for the people.

In that way, the states and their rights were just as powerfully represented as were those of the people. A fairly simple and smart concept. It was called "federalism".

Then we had a major change via Constitutional amendment, in which Senators went from being selected by the state they represented to election by popular vote. That essentially throttled "state's rights" and federalism by making the state's voice weaker and gave rise to the all-powerful national government we enjoy today.

I'm not sure why that would be so difficult for Bell to explain to foreign friends. And as you might have noticed, I did it without once resorting to mindlessly referencing (or even reverently referencing) the founding fathers.
 
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"That essentially throttled "state’s rights" and federalism by making the states voice weaker and gave rise to the all-powerful national government we enjoy today."

How does that make the states’ voice weaker? The states each had two senators before the change, and two senators after the change. The state politicians may have a little less power now, but how do the people lose in this?
 
Written By: timactual
URL: http://
No, timactual, the state governments each had two Senators before the change, and the state populations each had two Senators after the change. In other words, the change removed the political constraint that kept the Federal government from harming the states’ interests in order to satisfy popular interests or fads. The Senate is, since the amendment, nothing more than a longer-serving House in virtually all respects.

(The income tax removed the fiscal constraints on Federal government action, leaving none. It was the combination of the two that gave us the all-powerful Federal government.)
 
Written By: Jeff Medcalf
URL: http://www.caerdroia.org/blog
The Senate is, since the amendment, nothing more than a longer-serving House in virtually all respects.
You hit the nail on the head Jeff. What shocks me is that people don’t UNDERSTAND it when it is explained to them. Of course, people seem these days to be only concerned with who the president is... and not so much with the important elections for things like state and local reps.
 
Written By: meagain
URL: http://
The states each had two senators before the change, and two senators after the change.
Prior to the change, the Senators represented the states and their rights. They worked for the state. That was a critical bit of representation for safeguarding "state’s rights". Once they became elected officials, the state government’s had no hold over them and effectively lost their voices in Congress, and state’s rights were given mostly lip service.
 
Written By: McQ
URL: http://www.qando.net/blog
Prior to the change, the Senators represented the states and their rights. They worked for the state
One could also argue that they worked primarily for the political machines that controlled the state legislatures. It wasn’t like everything was running smoothly prior to direct election. There were some pretty good reasons the Constitution was amended in this regard.
 
Written By: Steven Donegal
URL: http://
Unfortunately, that combined with blind party loyalty can allow a Senator to totally disregard their state’s interest on any level and not just the "States’ Rights" aspect.
 
Written By: jpm100
URL: http://
YES! By all means lets make wholesale changes in the constitution because you know, there are many many other longstanding successful democracies which have survived over two centuries right? Oh Wait!
 
Written By: kyle N
URL: http://impudent.blognation.us/blog
To the popular election of the Senate and the income tax I’d add Wickard v. Filburn for our current all-powerful central government.
 
Written By: Dave Schuler
URL: http://www.theglitteringeye.com
I can’t believe people would try to spin something as simple as adding up to two. Tim is correct; each state had two senators before, and two after. Governments and senators are both conduits for the wishes of constituents, and are accountable to those constituents every election cycle. The only possible effect of putting the state government between the people and their senators is to dilute the will of those people. Maybe that’s better for "states’ rights" if the state is considered to be an entity separate from the people, but isn’t that supposed to be a bad thing? Aren’t governments supposed to represent the people and not their own institutional selves? There certainly seems to be an attitude about it being bad when the federal government holds itself separate from the people. Why is it any better when it’s a state government, unless "states’ rights" is just an excuse for stepping away from the constitution when it produces an outcome one doesn’t like (as has historically been the case)?

The founders were not concerned about the states for the states’ own institutional sakes. They were concerned about the people of one state being ruled by the people of another when populations and lower-house representation shifted. To guard against that they added two extra legislators per state, and the tenth amendment. How those senators got there was a secondary concern, and as Steven points out there were good reasons for the change.

In short, two still equals two no matter how people try to twist it.
 
Written By: Platypus
URL: http://pl.atyp.us
Governments and senators are both conduits for the wishes of constituents and are accountable to those constituents every election cycle.
They are now. But the conduit for the constituents previously was his or her Representative.

The Senator’s constituent was the state. That was the design of federalism and the way of safeguarding state’s rights.
 
Written By: McQ
URL: http://www.qando.net/blog
Gotta side with McQ on this one - I read the link Donegal gave to the senate.gov site. And my fears were summed up in one sentence -

Soon after, Nebraska followed suit and laid the foundation for other states to adopt measures reflecting the people’s will.
Because you see, there were problems. But instead of FIXING the problems, we had a century of debate and a constitutional amendment.

The founders were not concerned about the states for the states’ own institutional sakes. They were concerned about the people of one state being ruled by the people of another when populations and lower-house representation shifted
I think they rightly feared the awesome power of an Imperial Federal government. The 50 states have NO representation before the Feds. None. It is silly to say the people are not represented by Senators if they are selected by elected officials. Because the people ELECT the people who SELECT.
 
Written By: meagain
URL: http://
Clearly, Bell doesn’t consider the changes you mention major ones, McQ. Or perhaps it just slipped his memory. But, at the very least, you would think that he would consider the number of amendments to the constitution major change.

I am forced to conclude that Bell’s problem is, that the changes that occur when not to his liking. Which of course, of itself, begs the question what kind of changes does Bell want to see?

Perhaps the publication that we find his essay printed in, will give us a clue if we consider the editorial leanings of that publication, eh?



 
Written By: Bithead
URL: http://bitheads.blogspot.com
Platypus,

Think of federalism in term of check-and-balance - the Federal government checking the State and the State checking the Federal. Now we have the Federal government with nothing to check it.

I also think that "state right" is a poor choice of word. People have right; you and I have right. Governments (federal or state) have power. By giving some of the power to the state; it limits the power of the federal government and vice versa.
 
Written By: Minh-Duc
URL: http://
I think that it is critical for a Republic to function without becoming a tyranny (as ours is increasingly becoming) that its various officers are chosen to represent different groups. Frankly, the solution I would like to see is to do all of the following:

1) Divide the People into three classes: residents (those who live here), nationals (what we would now call citizens, those who are by birth or naturalization subjects to the Federal government’s rule), and citizens (who both meet characteristics that indicate they have the country’s long-term interests at heart, and take an oath of service, obligating them to serve, say, two of every five years if called to service).
2) Choose the House as it is chosen today, but change the districting rules to eliminate the most blatant kinds of gerrymandering (such as requiring the districts to all be within 1% of each other in population, and to minimize the boundaries between districts).
3) Choose the Senate by draft. Damn! Called to Senate duty!
 
Written By: Jeff Medcalf
URL: http://www.caerdroia.org/blog
So the representatives we send to the federal government are likely to go overboard in satisfying the peoples’ wishes, but the representatives we send to the state governments will not. Uh huh. The historical record of state government corruption, etc., is not that encouraging.
I wonder how the civil rights business would have turned out if the fed. gov’t. had been weaker.
 
Written By: timactual
URL: http://
I wonder how the civil rights business would have turned out if the fed. gov’t. had been weaker.
The Civil Rights struggle had nothing to do with Federal Government weakness. The Federal government, instead, chose to ignore the requirement to guarantee a republican government to the people of the states. They made a deal. In return for the south not contesting the election of 1876, and allowing Rutherford B. Hayes to take office, rather than Samuel Tilden, who almost certainly won the election, Hayes removed Federal troops from the South, thus ending reconstruction, and allowed ex-Confederates almost free reign to resubjugate blacks. And the Federal Government kept that deal for 80 years, helped out by a Supreme Court that seemingly willfully misread the text of the 14th Amendment in Plessey v. Ferguson to allow "separate but equal" to be the reigning philosophy of the south for the next 4 generations.

The power of the federal government had nothing to do with it.

Instead, politics, pure and simple, led to the withdrawal of US troops before the Iraqis southern states had been given a stable, republican government that represented all their people. Then the Supreme Court gave the official imprimature to Jim Crow.

One notes, however, that nearly the second after Brown v Board of Education, Ike Eisenhower, and every subsequent president, was ready to send in the national guard to enforce segregation, and, within a decade, voting rights.
 
Written By: Dale Franks
URL: http://www.qando.net
David Bell -
I do share, though, Levinson’s frustration at the incredibly ossified nature of our constitutional system, supported by mindless reverence for founding fathers who understood their imperfections far better than we do, and who mostly never imagined the system they designed lasting for so long without major changes.


Too many people have fallen into treating the Constitution like a Muslim Fundamentalist treats his Qu’ran. Every word should be sacred, holy, unchangable clarified only by the Clerics in their robes in interpreting Holy Writ into the Hadiths or SCOTUS divinations based on how Anthony Kennedy or Sandra Day O’Connor felt that day. Libertarians are among the worse in Holy Founder Veneration, never arguing for change or upgrading the Constitution, only seeking Revelation in other words of the Holy Founders elsewhere.

We have an ossified Constitution that is now nearly impossible to substantially modify by the Amendment process if the slightest political opposition exists anywheres. Instead, we rely on the whim of Judges to detect emenations and penumbras that frequently ARE NEEDED to deal with obsolete, incomplete clauses...or clauses that have no meaning at all in an evolved society 230 years after the Holy Founders started working. Or judges that must decide modern dilemmas the politicans avoid by "forcing it" into Constitutional context. With no other effective means of "fixing things" or restraining judges that believe they are sovereign over other Branches....we presently "default" to a small band of elite lawyers to make the decisions.

America is long, long overdue for a 2nd Constitutional Convention to revise and fix whole areas of the Constitution no longer relevant, and take decisions in vague or missing areas back from a small elite of lawyers in robes acting as America’s Ayatollahs.

Constitutional scholars point out nearly 90 major areas that need revision, repair, replacement, or sunsetting. Some examples:

1. The 3rd Amendment is obsolete. But the basic idea is quartering troops was an unfunded Federal mandate on citizens or the States. It should be changed to broadly address unfunded mandates, not the danger of troops wanting to live off-base, or involuntarily boarded in a non-emergency.

2. Lifetime appointment of Judges. NO other nation created after the US, after looking at our system, has decided lifetime judicial aristocracy made any sense. No State but RI, gives their judges lifetime spots...some states that used to have it dropped it as a terrible strategy.

3. No modern nation that others seek to immigrate to still has birthright citizenship. Except America, due to the Holy 14th Amendment, which was intended, according to the debate at the time, purely to make ex-slaves instant citizens - not enable millions of illegals 130-150 years later to spit out anchor babies.

3. There is no continuity of government scheme in the Constitution that allows continuity of government if DC is hit by WMD that kill or incapacitate 2/3rds of the House or resolve the Presidential succession path adequately. Which all but guarantees suspension of the Constitution and military rule after such an attack until Presidential succession is worked out and a new House can be elected after adequate campaign time - 6-9 months estimated.

4. The Constitution is silent on emergence of new technology and societal norms of the last few generations that impact other enumerated rights, but are so accepted they must be balanced against those rights. Which activist judges who believe they run personal Constitutional Conventions anytime they sit down at the bench are only too happy to do. One example is privacy while on public vs. private property. Is it time that the Constitution clarify privacy of person in an era when soft X-rays penetrate clothing and that technology has been used covertly but legally to examine crowds in public venues?

5. There is 230 years of case law where it is thought that judges got it wrong. Not wrong enough to force SCOTUS to revisit it, but wrong enough it economically damages America, paralyzes society, spreads injustice from the sheer accumulation of the numbers of these uncorrected screw-ups.

That’s only 5 matters in strong need of repair at a Convention.

Others may disagree with my 5 examples but have 90 others that should be worked out in a democratic way with other’s suggested fixes.

And then you have the Venerators, who argue that like the Muslims view the Qu’ran, nothing should be changed from the "Perfect Document of the Holy Founders".....
 
Written By: C. Ford
URL: http://
The examples you cite, Mr Ford, are prime examples of "unintended consequences" .

Perhaps one of the reasons that we are so lothe to execute changes on the constitution is because of these unintended consequences. Certainly, the fourteenth was well intentioned, for example. See also, paving list, road to hell.

On creating the changes that you suggest, perhaps the question that ought to be asked is what would the unintended consequences of these changes be? I recognize, of course, that what I’m asking you to do is protect the unknowable. But it is, I think, a consideration.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
I agree that there needs to be a second constitutional convention, because at this point our written Constitution is more observed in the breach; it bears little resemblence to the government we live under except for the structure of the offices and the methods of election to them. If we want our written Constitution to mean anything, it needs to match actual practice.

That said, I am terrified of the potential results of rewriting the Constitution at this point, because the partisans on both sides are unwilling to compromise to reach a Constitution all would accept — the debate over abortion alone would be unending and would significantly corrupt all aspects of the document as each side jockeyed for position. In other words, abortion would do to any new Constitution what slavery did to the original: utterly pervert it at a fundamental level, so that the compromise eventually struck would come apart in flames some time later.

Perhaps the better way would be for states to call a convention to discuss a limited set of amendments, and without a broader mandate. I think the states might be keen to see more clarification around interstate commerce, the ability of judges to impose settlements on people who are not named in the suit they are deciding on, war powers, strengthening the Bill of Rights, and other matters, but might not be willing to revisit the entire design of the Republic.
 
Written By: Jeff Medcalf
URL: http://www.caerdroia.org/blog
"The Civil Rights struggle had nothing to do with Federal Government weakness. "

I was referring to the 1950’s and 1960’s. Would Eisenhower have been able to send troops to Little Rock? Would the Civil Rights Act have passed? Since these same state governments that were subjugating blacks would have had a stronger hold on their senators, I doubt that any legislation would have passed.

 
Written By: timactual
URL: http://
Since these same state governments that were subjugating blacks would have had a stronger hold on their senators
As a practical measure, both the House and Senate would have had to both pass measures over-riding Eisenhower, and that simply wasn’t in the offing. Even in the Senate, it is far from sure that the states most wedded to segregation could have prevailed.

As for the Civil Rights Act, the original Republican legislation would likely have passed, the later, unconstitutional Democratic Party versions may well have not.

Yours, TDP, ml, msl, & pfp
 
Written By: Tom Perkins
URL: http://

 
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