Tuesday, 27 January 2009

From the department of colossally good ideas (aka Congress)

Steven Taylor, Nate Silver, and Alex Knapp are all on-board with an amendment proposed by Sen. Russ Feingold to the U.S. Constitution to strip governors of their power to make long-term “temporary” appointments to the Senate. Since Feingold hasn’t released the text of his proposed amendment yet, I can’t consider the merits of his specific proposal, but in general I am supportive of the idea that a special election to fill a vacant seat should be held within 60–90 days of a senatorial vacancy. I’d also amend Article I, Section 2 to specify a similar, specific deadline for filling vacancies in the House of Representatives, but that is hardly a deal-breaker if omitted. Assuming there are no hidden catches, I hope Congress acts quickly to propose this amendment to the states, where I suspect it will be received warmly by the state legislatures—who, after all, do not require gubernatorial approval to ratify constitutional amendments.

At the same time, I hope this amendment (if it is ultimately successful, which I suspect it will be) helps dispel the modern myth that the Constitution is excessively hard to amend. In point of fact, throughout much of American history politically controversial amendments were proposed and ultimately adopted, including both the adoption and repeal of Prohibition, the extension of the right to vote to women, the abolition of the poll tax, the Civil War amendments (particularly the 14th and 15th amendments extending citizenship rights to ex-slaves), and the indirect taxation amendment that led to the federal income tax. Just because the Supreme Court in recent years has been willing to reinterpret the Constitution to better suit the often-evolving values of society (witness, for example, the magical constitutionalization of the Equal Rights Amendment absent its ratification*) does not mean that the document is too hard to amend and thus the Nine must reinterpret it instead, merely that it is easier to file an amicus curiæ brief than to work through the amendment process in Article V.

* This is not to say that the ERA should not have passed; merely to observe that the Supreme Court’s decisions have essentially enshrined the ERA into constitutional law despite the fact that the states chose not to do so. Indeed, I suspect the ERA (or a lightly-modified version that excluded women from any mandatory service requirement) would be ratified today if proposed by Congress, but the Supreme Court’s actions have made any such action moot… at least until/unless five justices decide it wouldn’t be moot I suppose.

Tuesday, 3 March 2009

DC Talk

As you might expect, I am in complete agreement with my occasional co-bloggers James Joyner and Steven Taylor that while in principle the residents of the District of Columbia ought to have the right to vote for representatives (and, for that matter, senators)*, the proposed way of doing so—by passing a piece of ordinary legislation, allegedly pursuant to Congress’ plenary police powers over the District—is so blatantly unconstitutional I’m almost surprised members of Congress can vote for it while maintaining a straight face.

While I’m not convinced that we actually need a separate capital district in this day and age—other federal republics, such as Canada and Germany, seem to function perfectly well without a distinct federal district—as long as we have one we really ought to follow the rules. And, as I’ve noted before, the rules themselves are not so onerous as to justify bypassing them—if they were, the Constitution never would have been amended to give D.C. residents the right to choose presidential electors in the first place, during an era when the idea of granting voting rights for the district’s largely African-American population was much more politically contested than it is today.

* Note that this is a subtly different statement than “D.C. should have the same representation as a state,” a dubious proposition at best; there is no reason why D.C. residents couldn’t be treated as residents of Maryland (or for that matter Virginia or Wyoming or California) for the purpose of reapportionment and voting in federal elections but not otherwise be subject to state law.

Monday, 2 April 2012

Why read the minds of the Framers when we can read what they wrote?

In the midst of a rant against Team Red, James Fallows makes the following observation:

As with equal representation for all states in the Senate, real-world circumstances have changed so dramatically in the past 230+ years that the practical-minded drafters of the Constitution would never have suggested that the details of their scheme should be applied, unaltered, in the 21st century. [italics mine]

For the sake of argument, let’s assume that the practical-minded drafters of the Constitution didn’t think that every state should be entitled to equal representation in the Senate forever. If only there had been some way to include provisions in the constitution that expired, could be amended, or only applied to some states—for example, the Constitution could have still guaranteed equal numbers of Senators for each state that existed at the time of ratification, which would have still effected the Great Compromise between large and small states, but might have made no such guarantee for future states, the admission of which were clearly anticipated in the text. That they didn’t suggests that they thought that equal representation of the states in the Senate to be an important value of the constitutional order they established.

And, of course, the Framers designed the Constitution’s scheme to be alterable. If, sometime in the last 230 years, societal consensus had evolved to produce a more Hamiltonian view of the powers of the federal government vis à vis the states, surely the Constitution could have been amended to provide for that consensus to be enshrined into it. The fact the Constitution has laid effectively dormant for 40 years speaks more to the fact judicial whims have evolved to “constitutionalize” changes that in the past would be done by amendment than some inherent difficulty in amending the Constitution in the first place.