Creating Factions   Leave a comment

I think the Constitution is important and that a constitutional convention might be a good way to clean it up and eliminate some of the weird things that have been added to it in the last 200 years. I recognize that a general subject convention is not likely to happen, but I believe a states-called convention would be a good exercise in providing modern-Americans, who by-and-large have no ownership of the Constitution, with a sense that their generation actually has agreed to it.

Looking over the amendments, we should note that – with the exception of the 2nd Amendment – nobody is seriously debating the Bill of Rights. We may have issues with the court rulings about these amendments, but the Bill of Rights appears to be “safe” because people have a passionate attachment to them. Even the 2nd Amendment is unlikely to be repealed because 38 pairs of state delegates couldn’t agree to it. The “fry-George-Zimmerman” crowd would like to repeal the 6th right now, but only if it still applies when they go to trial, so I don’t see that going away. In fact, it might be a good thing for government minions to hear an up-down vote on these amendments, since some of these officials act as if these amendments have already been repealed.

See my previous post “We Must Protect the Bill of Rights” for my more-specific commentary on that subject. Moving on ….

The 11th Amendment – which basically says that the citizens of Texas can’t sue the State of Massachusetts because they allowed gay marriage – should probably be scrutinized, not for what it says, but for how it has been interpreted by the modern SCOTUS to claim that citizens of Massachusetts cannot sue the State of Massachusetts because it allowed gay marriage. It has also been interpreted to mean that the states surrendered their sovereign immunity from federal suits when they ratified the Constitution. Obviously this needs to be reconsidered because citizens of a state should have the right to bring suit against their state and federal governments. There are times when our state and federal governments enact laws that harm we the people in ways that do not cost us money or infringe upon us as a minority (usually the only two reasons you can sue the government). And, when these laws exist, denying us the right to meet our government in court abrogates certain principles of self-government. The like-it-or-lump-it interpretation also defies the clear reading of the text. It was designed to keep states from forcing other states to comply with their constitution. That makes sense. If I don’t like living in Massachusetts because I oppose gay marriage, I can move to Texas where the view of marriage is more traditional, Mass and Texas were considered sovereign territories cooperating with one another for their common good. That the 11th Amendment was interpreted to mean you can’t sue the government except under very limited circumstances, but the federal government can sue the states speaks to a early grab for power by the federal judiciary on behalf of the other branches that is out of character with the clear meaning of the actual Constitution. We the people are the rulers, government is our servant, but if we can’t object to what government lays upon us, we cease to become the rulers and instead become the slaves.  We should look at it and decide if it has any business being in the Constitution.

The 12th Amendment enshrines the two-party system which has caused a great many of our problems in the United States. More than that, the vice president, with so few constitutional powers, was intended to be a watchdog against abuses of the president, to report abuses of presidential power to Congress for the purposes of impeachment. He’s presiding officer of the Senate, after all. Consider the early structure of the presidency. The President was the one who got the most votes, while the Vice President was the one who got the second-most votes. Clearly they were going to start out as adversaries. Why include that in the Constitution? Because even though they fully intended for George Washington to be the president, they could foresee a time when a lesser man would inhabit that office and Congress might need to act to remove him. But how would Congress find out that the President was operating outside of his Constitutional authority if no one was about to observe his behavior who was also willing to report that behavior. Oh, well, the Vice President is also the head of the Senate. How convenient! Impeachment was defanged by the 12th Amendment because, seriously, who would remove Barack Obama for Joe Biden willingly? But imagine Barack Obama’s presidency with John McCain or Mitt Romney looking over his shoulder. Not strong enough checks and balances? Imagine John F. Kennedy with Barry Goldwater as an adversarial VP? Now we’re talking checks and balances! Rand Paul looking over Hilary Clinton’s shoulder or the reverse would also do the trick.

Our Founders didn’t agree on much with one another, which is why they gave us a brilliant Constitution that fosters disagreement except on very popular issues and even then, it takes a LONG time to enact those issues. It meant we really have to want a change before we get that change and that was considered a good thing. Judging from history, it was a good thing. About the only thing our Founders could agree on 100% was the folly of “faction”, what we would call political parties. Some of the Founders actually wrote concerning political parties (factions) as they arose. They didn’t like them and they would be puzzled and possibly revolutionized by our current system.

The other thing that had broad agreement among them was the absolute need for gridlock – for issues to be debated to death so that they either expired a well-earned death by languishment or passed because they enjoyed broad public support. The Founders would have been absolutely shocked by the spectacle of an extremely unpopular intrusive law like the ACA passing so swiftly because a single political party was in control of all three branches of elective office.

Doing away with political parties or allowing more than two parties to have a viable action within elections would be good for America, but the 12th amendment pretty much prevents it from happening.

An Article V convention would have to be called on a limited subject (most-like a balanced budget amendment, since we’re close to the threshhold now), but that wouldn’t prevent the delegates from making recommendations for other amendments to be sent to the states for ratification. Congress won’t probably act because Congress is useless, but states could if we decided we needed to.

Debate is good and fixing past mistakes, no matter how well-intentioned, is also very good.

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