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.