I urge each delegate to consider every
proposed constitutional amendment in light of five analytical tests:
1. The Suitability Test: Is the proposal suitable for inclusion in the Constitution?
This test is not about the substance or merits of a proposed constitutional amendment, but whether it raises the broader concern of James Madison in Federalist No. 49 that frequent constitutional changes would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.”
For Madison, the amendment process was best reserved for “certain great and extraordinary occasions.” Determining when a “great and extraordinary occasion” has arisen requires us to ask (1) whether the problem will remain important to future generations rather than of immediate concern to the generation seeking its adoption; (2) whether the proposal seeks to achieve a particular policy or partisan result instead of (i) addressing a systemic or structural problem or (ii) expanding individual political or civil rights; and (3) whether the problem can, as a practical or legal matter, be addressed by statutory, executive, or other (non-constitutional) means. The paradigm example of a constitutional amendment that failed the suitability test is the 18th Amendment, which sought to impose alcohol prohibition on a nation caught up in the fervor of “progressive” reform. (Although to be fair, the advocates of alcohol prohibition at least recognized that such prohibition required a constitutional amendment, unlike the drug prohibitionists of today.)
2. The Policy Test: Is the proposal good policy?
This test is about the proposal’s substance or merits. The suitability test will eliminate most proposed amendments, but assuming that the problem being addressed is serious enough to quality as a “great and extraordinary occasion”, is the proposal itself the best solution for actually solving (or at least diminishing) the problem? Answering this question requires us to ask searchingly what result we are trying to achieve and whether this result is consonant with the moral and political values that we want to see prevail. It is also a matter of judgment as to the costs of success, for we must never forget the law of unintended consequences should we actually achieve the result we are seeking. Again the 18th Amendment is a cautionary tale. Attempts to restrict the rights of our fellow citizens are almost always misguided, but when they lead so directly to massive crime and corruption, no benefit from such a proposed amendment can justify its ratification.
3. The Enforcement Test: Is the proposal self-executing or otherwise enforceable?
This is the test that is most often overlooked or intentionally ignored. Some amendments are indeed self-executing, such as the 22nd (presidential term limits), or readily enforceable by the courts, such as the 24th (no poll taxes). But Members of Congress often propose or co-sponsor amendments for their symbolic value to buttress their political standing or insulate them from political pressure, knowing full well that the amendment cannot or will not be enforced if ever ratified. Here the paradigm is the so-called Balanced Budget Amendment (BBA) that has been periodically approved by the House of Representatives and which in March 1995 failed by a single vote in the Senate. For decades I have been waiting for BBA supporters to explain how it would be enforced, but the only responses that they have ever given are (1) “fidelity to the Constitution” (i.e. Members of Congress will only pass balanced budgets because they swear an oath to the Constitution) and (2) super-majority voting to raise the debt ceiling. Leaving aside the various loopholes in the BBA for war, national security, and 3/5th majorities, fidelity to a constitutional oath is not self-executing. The more likely scenario is that lawmakers will claim to have honored their oaths by voting against spending which they personally oppose, yet fail to reach an overall consensus on legislation that actually balances the budget. As for using the debt ceiling to enforce fiscal discipline, we were reminded how vacuous this idea was last summer when Congress raised the debt ceiling for the 75th time since March 1962 (Congressional Research Service Report RL31967, April 5, 2011).
4. The Drafting Test: Has the proposal been properly drafted to achieve its policy goals?
This is perhaps the trickiest test to apply and meet because it not only has a practical component but an aesthetic one as well. A constitutional amendment must accomplish the intended goal in language that is as clear, simple, and direct as possible, but without opening the door to judicial reinterpretations that twist the original meaning so as to gut the amendment in whole or in part. We have still not recovered from the 1873 Slaughterhouse Cases that effectively rewrote the Privileges or Immunities Clause to make it a dead letter in all but a few uncontroversial instances of federal or national citizenship. Drafters can seek to protect themselves from subsequent “judicial amendments” with detailed provisions, but this can result in wording akin to the prolixity of the tax code. Even then there is no guarantee that the original meaning will be honored. The framers of the P&I Clause could never list all of our “privileges or immunities”, any more than the framers of the 9th Amendment could list all of our unenumerated rights. There is also the problem of language changing or simply being forgotten over time. This concern can sometimes be addressed by adding specifically defined terms to an amendment, but if a court is determined to achieve a certain result, there is very little that can be done, at least in the short term. Just ask Chief Justice Roberts what a “tax” (or “direct tax”) is for constitutional purposes.
5. The Political Test: Is the proposal politically viable?
Lastly, it is important to remember that proposed amendments must achieve deep and widespread political support to run the proposal and ratification gauntlet under Article V of the Constitution. The proposal must therefore have the potential for political viability, which in turn means that it must eventually gain bipartisan support. To be sure, many of our greatest constitutional provisions were not seen as politically viable when first proposed. The Civil War Amendments (13th, 14th, and 15th) required, well, a civil war, and the 19th Amendment required decades of political activism to achieve women’s suffrage. Still, most of us have limited time and energy, so it is best to focus on proposals that are serious and significant, yet do not favor any political party or which are so ideologically motivated as to ensure failure. One of my favorite proposals would change Tax Day from April 15 to the first Monday in November, but I am not going to make this the focus of my Article V efforts given the enormity of our fiscal problems and the need to make spending restraint by the federal government our first priority.
Andy Hawks
1. The Suitability Test: Is the proposal suitable for inclusion in the Constitution?
This test is not about the substance or merits of a proposed constitutional amendment, but whether it raises the broader concern of James Madison in Federalist No. 49 that frequent constitutional changes would “deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest government would not possess the requisite stability.”
For Madison, the amendment process was best reserved for “certain great and extraordinary occasions.” Determining when a “great and extraordinary occasion” has arisen requires us to ask (1) whether the problem will remain important to future generations rather than of immediate concern to the generation seeking its adoption; (2) whether the proposal seeks to achieve a particular policy or partisan result instead of (i) addressing a systemic or structural problem or (ii) expanding individual political or civil rights; and (3) whether the problem can, as a practical or legal matter, be addressed by statutory, executive, or other (non-constitutional) means. The paradigm example of a constitutional amendment that failed the suitability test is the 18th Amendment, which sought to impose alcohol prohibition on a nation caught up in the fervor of “progressive” reform. (Although to be fair, the advocates of alcohol prohibition at least recognized that such prohibition required a constitutional amendment, unlike the drug prohibitionists of today.)
2. The Policy Test: Is the proposal good policy?
This test is about the proposal’s substance or merits. The suitability test will eliminate most proposed amendments, but assuming that the problem being addressed is serious enough to quality as a “great and extraordinary occasion”, is the proposal itself the best solution for actually solving (or at least diminishing) the problem? Answering this question requires us to ask searchingly what result we are trying to achieve and whether this result is consonant with the moral and political values that we want to see prevail. It is also a matter of judgment as to the costs of success, for we must never forget the law of unintended consequences should we actually achieve the result we are seeking. Again the 18th Amendment is a cautionary tale. Attempts to restrict the rights of our fellow citizens are almost always misguided, but when they lead so directly to massive crime and corruption, no benefit from such a proposed amendment can justify its ratification.
3. The Enforcement Test: Is the proposal self-executing or otherwise enforceable?
This is the test that is most often overlooked or intentionally ignored. Some amendments are indeed self-executing, such as the 22nd (presidential term limits), or readily enforceable by the courts, such as the 24th (no poll taxes). But Members of Congress often propose or co-sponsor amendments for their symbolic value to buttress their political standing or insulate them from political pressure, knowing full well that the amendment cannot or will not be enforced if ever ratified. Here the paradigm is the so-called Balanced Budget Amendment (BBA) that has been periodically approved by the House of Representatives and which in March 1995 failed by a single vote in the Senate. For decades I have been waiting for BBA supporters to explain how it would be enforced, but the only responses that they have ever given are (1) “fidelity to the Constitution” (i.e. Members of Congress will only pass balanced budgets because they swear an oath to the Constitution) and (2) super-majority voting to raise the debt ceiling. Leaving aside the various loopholes in the BBA for war, national security, and 3/5th majorities, fidelity to a constitutional oath is not self-executing. The more likely scenario is that lawmakers will claim to have honored their oaths by voting against spending which they personally oppose, yet fail to reach an overall consensus on legislation that actually balances the budget. As for using the debt ceiling to enforce fiscal discipline, we were reminded how vacuous this idea was last summer when Congress raised the debt ceiling for the 75th time since March 1962 (Congressional Research Service Report RL31967, April 5, 2011).
4. The Drafting Test: Has the proposal been properly drafted to achieve its policy goals?
This is perhaps the trickiest test to apply and meet because it not only has a practical component but an aesthetic one as well. A constitutional amendment must accomplish the intended goal in language that is as clear, simple, and direct as possible, but without opening the door to judicial reinterpretations that twist the original meaning so as to gut the amendment in whole or in part. We have still not recovered from the 1873 Slaughterhouse Cases that effectively rewrote the Privileges or Immunities Clause to make it a dead letter in all but a few uncontroversial instances of federal or national citizenship. Drafters can seek to protect themselves from subsequent “judicial amendments” with detailed provisions, but this can result in wording akin to the prolixity of the tax code. Even then there is no guarantee that the original meaning will be honored. The framers of the P&I Clause could never list all of our “privileges or immunities”, any more than the framers of the 9th Amendment could list all of our unenumerated rights. There is also the problem of language changing or simply being forgotten over time. This concern can sometimes be addressed by adding specifically defined terms to an amendment, but if a court is determined to achieve a certain result, there is very little that can be done, at least in the short term. Just ask Chief Justice Roberts what a “tax” (or “direct tax”) is for constitutional purposes.
5. The Political Test: Is the proposal politically viable?
Lastly, it is important to remember that proposed amendments must achieve deep and widespread political support to run the proposal and ratification gauntlet under Article V of the Constitution. The proposal must therefore have the potential for political viability, which in turn means that it must eventually gain bipartisan support. To be sure, many of our greatest constitutional provisions were not seen as politically viable when first proposed. The Civil War Amendments (13th, 14th, and 15th) required, well, a civil war, and the 19th Amendment required decades of political activism to achieve women’s suffrage. Still, most of us have limited time and energy, so it is best to focus on proposals that are serious and significant, yet do not favor any political party or which are so ideologically motivated as to ensure failure. One of my favorite proposals would change Tax Day from April 15 to the first Monday in November, but I am not going to make this the focus of my Article V efforts given the enormity of our fiscal problems and the need to make spending restraint by the federal government our first priority.
Andy Hawks
email: hawks@rcn.com
11 comments:
I think this is an excellent set of criteria to assess proposed amendments. I agree about the 18 amendment of course. I would quibble with the argument that a Balanced Budget Amendment is not readily enforceable; I think one could be designed with enforcement mechanisms. But in any event, those are issues that we can hash out (I hope) during the Convention.
I think this is a great set of criteria. I might quibble on some of the details -- I think we can design a balanced budget amendment that is enforceable. But hopefully we can has this out at the Convention.
This blog is accessible on the home page of www.conventionusa.org, along with other blogs which are available for comment
I disagree with these so-called 'criteria' and would oppose them as rules of the convention. They are both arbitrary and vague and don't demonstrate an underlying understanding of the role of a constitution.
For example, #1. Suitability is not temporal. Suitability would only go the appropriateness of the object, which should always be government.
The 18th amendment was unsuitable because its object was the people.
For example, #2. The constitution is not about policy which can change with the political wind, it's about the law the Federal government must comply with. The objects of a constitution should always be the government, whether Federal or State, and never the people.
And who determines what is 'good' policy and what is the 'best' solution?
For example, #3. The example of the 22nd amendment as being self-enforcing is plainly not so. While the object of the amendment is identified and the language is not subject to much interpretation, it doesn't identify the party who may enforce it nor the party against whom it may be enforced. What if the states allow an ineligible object of the amendment to appear on the ballot? What if the electoral college were to vote in favor of an ineligible object? If any scenario were to occur, who has standing to bring it to a court? What if a court were to reject it as a 'political question?' How would a court prevent an ineligible object from exercising the office?
Nor are the amendments that have a 'power to enforce' section useful. Those amendments depend on the Congress taking some action and do not even require any actor to enforce.
The 22nd amendment is self-enforcing only in the respect that it is specific enough and well-known enough that the people would probably not tolerate its violation.
There is no enforcement mechanism in any article or article of amendment in the constitution. In fact, enforcement would be one of issues that should be addressed in an 'enforcement amendment.'
All modern contracts have enforcement boiler-plate language that identify who may enforce the terms and the jurisdiction in which enforcement may occur.
For example, #4. Drafting language is an art, I agree. And I agree the simplest solution is also the best, but how do you test the artfulness of the language.
In my opinion, one more article of amendment might be all that is necessary to put government in its place.
"The legislative, the executive, or the judicial branches shall make no law the object of which is the People. The People have standing in the Federal courts and the Federal courts have jurisdiction to enforce any and all language in the Constitution."
In my view, if the government wants to tie itself up in endless litigation because it can't control its hunger for control over the people, then we'll all be better off.
For example, #5. If we're only to address issues that we deem politically viable, then we may as well stop now, because we won't address any of the hard issues.
Can we not just take the proper actions to revoke the 14th, 16th and 17th amendments. Would this not take away the money from the Federal government and force them back within the limits of the Article I section 8 limits.
The 10th amendment would again give the powers to the States and the People. the Senate would represent the State legislatures which would give the States control over one branch. This limit would prevent unconstitutional agencies like EPA, Species Act - Federal land ownership of States land.
Here is a idea of how it could be accomplished -
http://goldwaterinstitute.org/articlev
Adam, The BBA does not work just look at California and it could give legal standing to the Usurped laws and agencies they have created out of thin air.
Just take the money and the ability to get unlimited funds away from the Congress and the President.
Yes, Lockj is correct,destroy all lobbying ( bundlers)..,remove funding of all elections.Let the Individual who runs for office be allowed to be put on any Ballot,if they prove they qualify as a legal Citizen,at no cost .
The charging of fees for potential candidates is a disgrace.
I propose we all look at, read, study and consider the proposed amendment at http://www.tinyurl.com/stop-corruption . It can be honed and polished to make it even more perfect -- I love the idea of focusing on the individual in government who would so dare violate the U.S. Constitution. IMHO it puts TEETH into the LAW.
As I was reading the five tests for a constitutional amendment it occurred to me that what is needed, to my knowledge, cannot be entered as an amendment. We can add more amendments,increase laws which are already far to numerous, to the point of one not being able to breath without breaking some law. The problem is very simple and can be addressed by several founders.
Matthias Burnet speaking before the Connecticut legislature in 1803, [F]eeble...would be the best form of government, and ineffectual the most wise and salutary laws,...without a sense of religion and the terrors of the world to come....In a word, banish a sense of religion and the terrors of the world to come from society and you dissolve the sacred obligation of conscience and leave every man to do that which is right in his own eyes.
George Washington in his Inaugural Address: [T]he propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained.
Noah Webster: All the miseries and evils which men suffer from vise,crime, ambition, unjustice, oppression, slavery and war, proceed from their despising or neglecting the precepts contained in the Bible.
Thomas Jeffeson: Can the liberties of a nation be thought secure when we remove there only firm basis, a conviction in the minds of the people that these liberties are the gift of God, that they are not to be violated but with His wrath. Indeed I tremble for my country when I reflect that God is just: that His justice cannot sleep forever.
What are these statements saying? They are saying that our problems are of a moral nature. We remove God and prayers from schools in a nation called a republic who's model for government is as Thomas Jefferson explained, "ancient principles" found in the governance of Moses to the Israelits, who upon refusing to listen roamed in the desert for 40 yrs. We are now in the desert for refusing to listen, and we expect better from our children and teachers than what we now get? I don't think we need new amendments but rather some removed such as the 17th, part of the 16th and others. No more executive orders permitted which violates the need of Congress to create ALL laws. Man must be harnassed with what the Founders called the "chains" of the Constitution with it's original purpose, spirit and meaning. One of the men who heavily influenced our Founders, Baron Charles Secondat de Montesquieu stated: [s]ociety, notwithstanding all its revolutions, must repose on principles that do not change.
What were the immutable principles Montesquieu spoke of? The Christian religion, which ordains that men should love each other, would without a doubt have every nation blest with the best civil,political laws: because these, next to religion, are the greatest good that men can give and receive.
A malicious intension...to vilify the Christian religion and the Scriptures....would prove a nursery of vice, a school of preparation to qualify young men for the gallows and young woman for the brothel....Religion and morality...are the foundations of all governments. Without these restraints no free government could long exist-Updegraph v. Commonwealth, 1824
[Religion] must be considered as the foundation on which the whole structure rests....In this age there can be no substitute for Christianity; that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions-House Judiciary Committee 1854
The destruction of morality renders the power of the government invalid-Commonwealth v. Sharpless-1815
I speak of Christianity in the terms offered in Updegraph v. Commonwealth being: ...general Christianity,not Christianity founded on any particular tenets: not Christianity with an established church...but Christianity with liberty of conscience to all men.
Amendments to the Constitution should serve any of the following purposes.
1) Grant additional specific powers to a specific office of government.
2) Complete recall a specific power previously exercised by a government office.
3) Modify a specific power already granted to a government office.
Notice that Amendments 15 and 19 do not grant any rights to any citizen to vote. The Amendments prohibit the exercise of powers by the government that were not granted to it.
I think it also important that we remember the example from our Founders when they moved from the Articles of Confederation into the Constitution for Government of the United State of America. They dis this in less than 10 Years.
There are so many amendments need to our present Constitution that it will becomes burdensome just to muddle through all of them. It is my opinion that we should consider starting from a clean slate and correct the abuses not foreseen 226 years ago.
There are issues that enjoy widespread popular support in the country, but on which Congress has failed to act. Two‐thirds of Congress is unlikely to approve amendments that significantly limit the power of its members, such as a balanced budget or term limit amendment. The Convention Clause provides an important means to adopt —or force Congress to adopt— amendments that are perceived to be in the national interest by significant percentages of the American population, but that are detrimental to the interests of members of Congress. i.e. Balanced budget amendment, Require that judges interpret the laws and not write them, Term limits on Senators or Representatives, Prohibit Congress from passing laws affecting state governments unless Congress gives the
funding needed to pay for those laws, Permit prayer at school meetings or ceremonies, Allow Congress to regulate the amount of personal funds a candidate may spend in a campaign, Define marriage in all states as the union of a man and a woman, etc.
The history of the convention method of amending the Constitution is filled with much confusion and debate about its meaning, proper application, and scope. One of the major reasons it has never been used is the prevalence of doubts and concerns about the limitations that could be placed on a convention. The convention method of proposing amendments may never realize its potential so long as such confusion and fear exists. Much of the fear surrounding a convention is unfounded. The Convention Clause’s text and history indicate that it grants power to the States to limit the scope of any such convention. In addition, the States have the ability to reject any amendments proposed by a convention through the ratification process.
A possible solution to clarify the Convention Clause power would be for the States to petition for, or for Congress to propose, an amendment to Article V itself. It could be amended to clarify the constitutional convention amendment process so that the purposes of the Convention Clause can be given effect.
Such an amendment could explicitly state that Congress cannot limit or control an Article v convention but that the States
may exercise such control, that specific applications can be limited to single issues, and that the resulting convention may only consider those issues. The amendment could also include basic procedures and details for how a convention would operate to ensure its independence from the other three branches of the Federal Government, and it could explicitly answer questions about the funding of a convention, the selection of delegates and a location, and other procedural and logistical questions. Article V could also be amended to decrease Congress’s power over the convention process to further the Convention Clauseʹs purpose of allowing the States to circumvent a corrupt or unresponsive Congress. An amendment could empower a new independent body, perhaps made up of the governor of each state, or the chief justice of each state’s supreme court, to call a convention when a sufficient number of states have applied, to oversee the convention, to ensure it does not exceed its scope, and to make it clear that Congress does not have convention oversight powers.
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