The Middle Way

Observe what the LORD your God requires: Walk in his ways, and keep his decrees and commands, his laws and requirements .. so that you may prosper in all you do and wherever you go - I Kings 2:3

In general, I am not in favor of messing with the Constitution. The way it was written by the Founding Fathers contained very few imperfections. History supports this as fact, because it today contains only 27 amendments: one of which repeals another; and a few others which, in my opinion, should never have been enacted. I certainly oppose the all too frequent efforts to add material to the Constitution that deal with very specific subjects (called "statutory amendments"). Statutory amendments have been made to State constitutions for many years, and has made many of them, including Ohio's, very unwieldy.

However, I do have a few suggestions on changes I would like to see:

An amendment to rein in the Supreme Court

Many of the statutory amendments that have been suggested are in response to efforts by the Supreme Court to legislate from the bench. We have to accept that this is human nature; but one that needs to be curbed, if our cherished principle of separation of powers is to retain its integrity. There is no easy answer to this problem, but I would like to suggest a more difficult one. Congress and the President should appoint a committee of the most distinguished legal scholars in the country, including both strict constructionists and judicial activists (say, bringing together Robert Bork and Laurence Tribe), to draft a technical amendment that gives the Supreme and the Federal appellate courts rules that must be followed in making a decision. The general idea is something like:

• Where possible, the Constitution is to be taken literally,
• Consider the intent of the authors of the document or amendment as recorded in the official minutes or in the Federalist Papers, and the legislative intent of the affected law,
• A literal interpretation of the Bill of Rights shall take precedence over any other part of the Constitution. (etc.)

(I am not a lawyer - the language is definitely subject to correction).

The idea is to provide a Constitutional standard by which the Federal judiciary can be held accountable by the Congress and the people. This is not present now, and is sorely needed.

An amendment to move Election Day to the first Monday in November, and to make it a national holiday.

I can see several advantages:

• It eliminates any work-related excuse for not voting.
• It eliminates a politically dead day prior to the election. I would favor a custom that would make Sunday the quiet day before the election.
• The holiday could also be celebrated, while people are wound up on politics, with town meetings in every community, to discuss how our system of government can be improved, which in turn can help educate citizens on the practical problems our governments face. One facet of this could also be to help provide citizens with some background information to help them start thinking about issues for the next year's election.

There is a drawback with the Monday date, that it tempts people to take a three-day leisure weekend; but hopefully, the November date, and extensive publicity on how the new holiday is to be observed will help counteract that.

Candidates for repeal:

Repeal the Seventeenth Amendment: Direct election of Senators

At first blush, direct election of Senators sounds like a good idea - it is more democratic than having the State legislatures elect them, right? We don't want to take away any voting rights, do we? Well, Houston, we have a problem. The Federal government is in deep financial doo-doo. They are passing the bills on to State governments, which are rapidly going bankrupt (think Medicaid). There is no Constitutional check on the Federal government passing unfunded mandates to the States.

Prior to 1913, this was not a problem, because a Senator who would suggest an unfunded mandate would be canned by his State legislature. The United State Senate was the means by which the States limited the amount of damage the Feds could do to them.

Therefore, the obvious solution is to repeal the 17th Amendment, going back to the method where the Senate is elected by the State legislatures. Granted, the method is indirect - republican rather than democratic (small letters intentional - this is not a partisan issue), but the people are still in control through the election of their state legislators and the U.S. House of Representatives.

Repeal the Twenty-Second Amendment: Presidential Two-Term Limit

This idea worked better when it was a custom rather than a law. George Washington wisely established the two-term limit by refusing a third term in 1796, which all but one of his successors either honored, or were forced to honor (in the cases of U.S. Grant and Theodore Roosevelt). The amendment was a Republican response in the early 1950s to the election of Franklin D. Roosevelt to his fourth term in 1944, under what anyone would consider to be exceptional circumstances.

Problem is: Presidents in their second terms are prone to scandals. Eisenhower had Sherman Adams (admittedly a minor scandal), Johnson had Vietnam, Nixon had Watergate, Reagan had Iran-Contra, and Clinton had Monica. Some analysts believe that President Bush may eventually be tarnished either with Iraq, or to a scandal presently unknown to us. The best control for such a problem is to enforce accountablity on second-term Presidents, by giving them the hope (if they choose to view it that way) of election to a third term.

(Note on Theodore Roosevelt and Johnson: While they were only elected once, President Roosevelt by re-election would have exceeded the ten-year limit set by the 22nd Amendment, and Johnson's re-election, while technically within it, would likely have been viewed as violating its spirit, even public sentiment on Vietnam would have let him run).

Copyright © 2005, Harold D. Thomas. All rights reserved. Permission is granted to use the material in this blog provided both conditions are met: (1) Credit is given to the author, and (2) the use is not for profit.