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How would you change our nation?

Oct 07, 2007 - 04:02:07 CDT

In a few weeks, I am going to attend a Great Conversations program in Helena, Mont., wherein people sign up for dozens of conversation tables according to their interests and tastes. One table might be about the "Buffalo Commons" idea and another about "The Best Movie of All Time." The assignment I received today is to lead a discussion about "The Next American Constitution." I need your help.

Thomas Jefferson believed that we ought to tear up the U.S. Constitution once every 19 or so years, on the principle that "the earth belongs to the living not the dead." This splendid radical idea always gets a negative reaction when I try to make the case for it. Most Americans shudder as they try to imagine what a Constitutional Convention would look like in an age of tabloid 24-7 media, lobbying groups with virtually infinite funds and sophistication, and a public that is more interested in NASCAR than natural rights, more informed about Britney Spears than Great Britain.

Fair enough. But for the next few minutes, please ask yourself what you would change in the American Constitution if you had the power and wisdom of Solon, or for that matter Alexander Hamilton.

Here are a few possibilities.

The Electoral College. The Electoral College was created to serve as a filtering mechanism. By the time of the Constitutional Convention of 1787, many of the founders believed we needed to step back from the democratic principles of 1776 and create a more conservative social compact. Most of the founders had little, if any, respect for the common people of the country, Alexander Hamilton's "rabble, the beast." They were uncomfortable letting the people elect their own president, so they created the Electoral College to serve as a kind of College of Cardinals. The people would be permitted to elect electors, but the electors would have the authority to elect any president they chose. The system has broken down several times, and it makes thoughtful people wonder if they really live in a democratic republic. Perhaps we could clarify its purposes or just eliminate it altogether.

Impeachment. In my opinion, the 1787 impeachment (removal) mechanism is one of the principal flaws of the Constitution. There is a reason why there never has been a successful impeachment of a president or a Supreme Court justice. The bar was set too high. Either the number of votes needed for conviction needs to be lowered to something below a two-thirds majority in the Senate or (more sensibly) the criteria for removal should be widened beyond "high crimes and misdemeanors." Perhaps it should be possible to impeach a president for "gross ineptitude" or "unconscionable stubbornness" or "fundamentally losing the confidence of the American people." If we haven't successfully impeached a single president in a run of 43 - a list that includes James Buchanan, Millard Fillmore, Richard Nixon and, er ... Warren Harding - clearly the bar has been set too high.

The Second Amendment. I know we live in gun country (at the start of hunting season) and I am not, I repeat, not a gun critic. But given the almost incredible development in weapons technology since 1787, it might be useful to debate and clarify our national attitude toward gun access. After all, in Madison's time a high-tech weapon was a single-shot musket that took a minimum of 25 seconds to reload. Using such weapons (the weapons of the Second Amendment), the killers at Columbine High School (April 20, 1999) and Virginia Tech (April 16, 2007) would have been able to squeeze off one or at most two rounds before they were overpowered by their peers. At some point, technological developments represent a difference no longer of degree but of kind. It might be interesting to decide how the country really feels about guns as the 21st century begins. And where are our militias?

War powers. The founders, who lived in a 3 mph world, determined to muzzle the dogs of war and prevent presidential mania by insisting that the power to declare war lay exclusively with Congress, in fact, in the House of Representatives. Even Jefferson, the pacifist third president, found it impossible to respond to the rapidly changing world situation while wearing such a constitutional strait jacket. After World War II, the executive branch has effectively swallowed up the Constitution's war powers, irrespective of the occasional charade of the president seeking congressional authorization for war. Given that we now live in a world that travels at 186,000 miles per second, or at least at the speed of a ballistic missile, we ought to craft a new war powers doctrine that gives the president the constitutional flexibility he or she needs, at the same time that it provides Congress enough authority to prevent executive recklessness. It won't be easy, but the present arrangement is disingenuous and dangerous.

Judicial term limits. As you know, judicial officers, once appointed by the president and confirmed by the Senate, serve for life on "good behavior." Though the principle of judicial independence makes sense, life tenure was a bad idea even in the early national period. Of life-tenured judges, Jefferson famously said, "few die and none resign." In Jefferson's time, in an age before antibiotics, life expectancy was a little more than half of what it is today. Today, a man or woman appointed in their 40s can expect to live (and therefore serve on the bench) for 40, maybe even 50 years. That's too much power too long in the hands of one individual. It might be worth setting a 20- or 30-year cap on judicial terms, or having a vote of confidence or no confidence every 15 years or so.

It might be useful, too, to take advantage of a constitutional revision to remove some things that now are regarded as embarrassments. Although slavery is never mentioned by name in the Constitution, it is addressed (and perpetuated) eight times in the course of the document. The most notorious of these is the three-fifths clause, which counted every five Negro slaves as three for the purposes of apportionment and representation. At the moment of its crafting, this was a necessary compromise. That was 220 years ago. Now it's a blot on our national honor.

If we assembled a new Constitutional Convention, we might wish it to take up such vexing and intractable issues as abortion, the future of the public lands of the American West, access to health care in an advanced industrial society, America's participation in international bodies like the U.N. and the International Courts of Justice, women's rights and the sovereignties of Indian tribes, which Jefferson's cousin, the great Chief Justice John Marshall, called "domestic dependent nations."

There are some constitutional theorists who believe the "Great Compromise" of July 16, 1787, apportioning House seats by population, but guaranteeing every state, no matter how small or lightly populated, an equal number of senators, is a violation of the principle of one person one vote, and that it permits determined minorities in the Senate to hold up the progress of a nation (a world power) of 300 million people. The famous compromise gives little North Dakota, with only 642,000 people, as much power in the Senate as California, with its whopping 38 million people. In other words, from a Senatorial point of view, each North Dakotan has as much power as 59 Californians.

As a proud resident of the fourth least populated state, I would prefer now to change the subject. And please understand, I am not advocating gun control.

(Clay Jenkinson is the Theodore Roosevelt scholar-in-residence at Dickinson State University. He lives in Bismarck. Contact Jenkinson at Jeffysage@aol.com.)

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Comments

Bruce Schoenwald wrote on Oct 10, 2007 3:25 PM:

" I don't think we can take Jefferson's words too literally now. During his presidency there were 17 states and a relatively weak federal government. As our country has grown, both in terms of number of states and governmental power, we have seen a struggle develop in the interpretation of the Constitution to define the power of the federal government against the limits of individual and states rights. That stuggle produced the Civil War and the 14th Amendment and the so-called "Incorporation Doctrine" whereby the Suprme Court has interpreted certain elements of the Bill of Rights to prevent states from infringing upon individual rights guaranteed by virtue of U.S. citizenship. Roe v. Wade is nothing more than an illustration of the delicate balancing of those rights and powers (the federal government stepped in to allow the states to prohibit some, but not all, abortions sought by an individual). I don't see how it would even be possible re-write the entire document without drastically upsetting that balance. Besides, the original constitution has actually been changed 27 times through amendments and almost every other change one could contemplate has been a proposed but failed amendment. "

John wrote on Oct 8, 2007 7:43 PM:

" Too bad I am not closer to the location, this is a discussion I would enjoy being part of. Our Constitution is old, and the age is showing. However, redesigning it is not something we should take lightly. For all of the respect I have for Thomas Jefferson, I think he was wrong to want to re-write it every 19 years. It provides too much of an opportunity for those that would oppress others to do so. Just consider the damage which could be done by our current government if they had the opportunity to re-write the Constitution. Privacy would be gone, Free Speech would be a joke, and any other rights which were inconvenient to the War on Terror would be gone. The advantage the Framers had was a mindset born of tyranny. They had faced real oppression and stood up to it. Today, most of us have faced nothing worse than a delay getting our morning latte. We do not fully appreciate just how far wrong a government can go. It is important to set out on such an endeavor with the correct mindset. Many people today mistakenly regard their rights as coming from the Constitution. This is quite backwards, and was one of the problems pointed out with the Bill of Rights when it was being argued. Alexander Hamilton pointed out that should a list of protected rights be created, it would be used as a pre-text for claiming that other rights did not exist. The reason for a government to exist, is to protect the rights of the people, and it should only be allowed to exist and govern, so long as it continues to do so. Should it stop doing so, it is the right of the people to remove it and start over. "

Ed Gilliland, Amarillo, TX wrote on Oct 8, 2007 4:31 PM:

" It has served us well. LEAVE THE CONSTITUTION ALONE. "

Henry the eighth wrote on Oct 8, 2007 2:39 PM:

" This article is wrong on so many levels it is impossible to completely de-bunk it in the space allowed. One thing that is glaring to be addressed is that the "author" who is supposed to be some kind of educated intellectual, still labors under the completely false assumption that we still follow the Constitution. We do not, in any shape or form. Sure, our criminal political class still pays some lip service to it when it is to their advantage, and we retain some privileges that are supposed to be absolute rights, but for all intents and purposes, the Constitution is dead and has been for over 100 years. "

Just A Comment wrote on Oct 8, 2007 12:36 PM:

" Why is it when I comment on ABC News and the Chicago Tribune, my comments are up there immediately? Here, the last comment was from 8:00AM because you moderate your comments, but not very often. Why not just turn moderation off? If it works for ABC and the Tribune (and the Miami Herald, and most other papers that allow comment too) why can't it work for you? "

Glenn wrote on Oct 8, 2007 11:48 AM:

" We are the people we were 230 years ago. We, as people, have not changed. However, a lot has changed. We have a united history. We have the ability to look backwards at what we have done with this opportunity we were given. We need to talk about that. We have increased the production of the individual. We have reduced distances between places through improved travel. We have greater access to more information than ever before. We do need to have a conversation about who we are and what our fundamental belief's and priorities are. I cannot think of a better place to do that than in a forum discussing the document that we have used as a guide or excuse for our action for the past 230 years. We need to understand the validity of each sentence in both the circumstances of our fore-fathers and our present circumstances, as well as visioning what our descendants may be faced with and ensuring our bridge document supports that pathway to the future. The Constitution is a piece of paper with words on it. The meaning of the words is what gives us our purpose and direction as a united people and enables us to build a structure that we use to support and constrain our government. It is too important not to talk about. And the only time to do this is always the same - now. "

Illinois Joe wrote on Oct 8, 2007 11:13 AM:

" Personally, I agree with you 100% on the Amendment II issue. My read of the 2nd Amendment's "spirit of the law" is that citizens should be as well armed as the government to prevent government tyrrany. When the government had muskets, citizens had muskets. But, you are right, things have changed. With that said, I agree that the 2nd Amendment should indeed be clarified. Let me take a shot: Amendment II The right of the people to keep and bear arms, openly or concealed, equal to or greater than the arms of the police and the government, shall not be infringed. I you must agree with me based on your argument. "

Joel S. Hirschhorn wrote on Oct 8, 2007 9:52 AM:

" All Americans that love our nation and see the need for at least discussing possible constitutional amendments should seriously examine the materials at www.foavc.org and become a member to help us get the nation's first Article V convention, which we have a constitutional right to have. "

John wrote on Oct 8, 2007 8:52 AM:

" Given the almost incredible development in media technology since 1787, it might be useful to debate and clarify our national attitude toward the press. After all, in Madison's time a soap box required direct contact during free speech. Given the forged CBS papers and other similiar false hoods told to millions of people in seconds, without rebutal, a look at the media is appropriate. At some point, technological developments represent a difference no longer of degree but of kind. It might be interesting to decide how the country really feels about an unchecked media as the 21st century begins. "

Hill wrote on Oct 8, 2007 8:37 AM:

" Of course, we need to revisit the Second Amendment because of the advances of technology. We also need to revisit the First Amendment for the same reason. Do you really think that the founders would have allowed free speech if they knew that two hundred years later, we would be able to communicate with millions upon millions of people instantly via advanced electronics? "

The Duck wrote on Oct 8, 2007 8:26 AM:

" Well if you are going to revise the 2nd to the times it was written, then so should the 1st to quill pen & standing on a soap box! The founding fathers had no way to envision TV, Radio, or the internet so they cannot be included under the 1st ammendment ether. "

shotgun in Arizona wrote on Oct 8, 2007 8:00 AM:

" I have to go along with the idea that we need to RETURN to Constitutional Law. That every piece of legislation MUST pass Constitutional muster BEFORE it is signed into law...NOT wait until someone, or some organization files some sort of law suit. Our Constituion is just fine the way it is. We just need to force our elected officials to follow it TO THE LETTER. "

Glen Aldrich wrote on Oct 8, 2007 5:54 AM:

" I would remove the preamble in the second amendment "The militia being necessary to the security of a free state" leaving "the right of the people to keep and bear arms shall not be infringed" I would also work on the commerce clause and the general welfare clause both have been used to ignore the Constitution and make it null and void "

defcon1 wrote on Oct 8, 2007 5:34 AM:

" The principles of the Constitution need to be adhered to more than they need to be changed. Homo-Sapiens have not changed in nature over the last 230 years, and the Founders warned against the very dangers of all branches of government operating beyond legal authority. Changes? Eliminate sovereign imunity. Add a line item veto. ALL proposed laws must pass a Constitutional test BEFORE being enacted. All PRESENT laws must pass a Constitutional test or be repealed. Original intent shall be the benchmark. "

Citizen wrote on Oct 7, 2007 9:27 PM:

" Yes Lisa, Americas do love to talk but most of the time it is about the most mediocre of things. I have no historical proof but would think it was probably the same in the 1700's. I don’t think a national conversation forum would change anything. Sorry about being so skeptical and negative but I read and try to contribute to this, the Bismarck Tribunes Blog site on a regular basis. I try to say something intelligent and purposeful. It does not work. The vast majorities of the comments are mean spirited, ugly, demeaning and serve no purpose other then to make me feel depressed about my fellow Americans out in cyber land America. I have been told that when a politician receives a letter in the mail, he/she looks upon the letter as representing the thoughts of twenty other people. Do you understand? When I read a negative comment; twenty other people probably feel the same way. Recently some juveniles urinated into their teacher’s soft drink or coffee or whatever. It was a prank, something the school principal and the parents solved. The Tribune printed the story. The readers of this block site were ready to lynch the boys, very few readers had any positive suggestions and those that did were called the most shameful things. I also believe that our country had much more of a consensus of opinion in the 1950-1970’s then now. It is probably due to the tremendous transience of our society within the areas of people, places, things, information and organizations. Don’t let me prevent you from following your hopes and dreams. I taught futurism, for many years, to bright hopeful Junior and Senior high school students. Unfortunately I have become an old skeptical man but not because of my pupils. My former pupils always kept me young and full of hope. Other things in the last six or seven years have caused me to become sad for the future of my country. "

KelliZ wrote on Oct 7, 2007 6:37 PM:

" I would not do away with the "Great Compromise". As a Californian I sometimes look around me and wonder if it only takes just one North Dakotan to equal the common sense of 59 Californians. It isn't just quantity that counts especially in the market of ideas. "

Lisa wrote on Oct 7, 2007 5:32 PM:

" Dear Citizen, When in our history have we ever been able to say with conviction "this is the right time?" How do we know? There is no better time than now to start a conversation. There is nothing here that says this must be done. What we have to do is talk about our national identity, our politics, our way of being. We may never change a thing, but until we look at the Constitution together, how do we know it's right for us now? How great is it that people in states so far from each other can have this discussion? We coasters think differently than you middlemen-- I'd like to see more conversations like this, and am quite jealous the we don't have a national conversation forum, considering how much we love to talk! "

Citizen wrote on Oct 7, 2007 12:34 PM:

" To Lisa and Sally. Conversation is not scary unless it is implemented without a great deal of forethought. Our nation is divided, nearly as much as at the time of the Civil War. We have the Blues and the Reds, those in favor of abortion those not, those pro-war and those antiwar, a powerful lobby of gun toting members, the Christian right and the Christian left and those who want nothing to do with any of it. We have Jews, Muslims, Buddhists, Hindus and others trying to keep their heads above the rushing torment. We have gays and straights often scowling at each other and an out of control media more interested in ratings then the honest news; with the pundits who try to change our views and end up confusing everyone. There are huge corporations that are trying to wrest control of our nation from the citizens. We have environmental problems such as Climate Change staring us in the face and an American public oblivious to it. This is not the time, things have to cool off, and we need to have a nation of political leaders that will create some sort of consensus among our people. We have lost our consensus; we must regain it before we try to modify the Law of the Land. Don’t change horses while crossing a rushing turbulent river. The present constitution is working just fine; yes, it could use tweaking but I don’t think this is the time. "

Sally D. wrote on Oct 7, 2007 11:46 AM:

" I agree with Lisa Merki. It is only through conversation and the exchange of ideas that we are a thinking nation. Who knows when and where the next Thomas Jefferson will come forward, and wouldn't it be a waste not to allow that person (he or she) to speak and be heard. Shouldn't we be open to new ideas? "

Lisa Merki, Seattle Wa wrote on Oct 7, 2007 10:44 AM:

" I believe starting a conversation is not a scary or wrong-headed thing. I live in a city where our motto ought to be "our best product is process". Spitting out the word "Go" is at times exhilarating and exhausting. Some changes need to occur for the health of the nation in the 21st century. We cannot live in the distant past. That's why everyone should be part of this conversation. Citizen activism is a key component to change. We don't need to rework the whole thing, At the same time, once we start, where do we stop? How much easier would it be to change for the wrong reasons, for the convenience of those on power? Oh wait, isn't that happening now? "

Citizen wrote on Oct 7, 2007 9:51 AM:

" Leave it the way it is! Trying to write a new constitution would only result in anarchy and now is not the time to do it. There are times when you really scare me Mr. Jenkinson; you wanted my opinion, well you got it. "

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