A few weeks ago, Marc Pascal wrote a post over at The Moderate Voice listing a number of Constitutional Amendments he believes need to be adopted as soon as possible:
On 8/9/09 Alec MacGillis in the Washington Post outlined one of the largest problems today in our Constitution that distorts the legislative process and often thwarts the will of a large majority of Americans. The composition of the U.S. Senate permits several small state Senators to essentially wield excessive power.
Pascal’s proposed Amendments start by attacking the very nature and purpose of the United States Senate:
A 28th Amendment would change the composition of the Senate to better reflect the relative populations of the 50 states. All states with at least 1 million people but less than 10 million inhabitants would have 2 Senators. States with less than 1 million inhabitants would be allocated only 1 Senator. States will 10 to 20 million people would get 3 Senators, those with 20 to 30 million would get 4 Senators, and so forth.
Pascal’s proposal would essentially eliminate the Senate as anything other than just a smaller version of the House of Representatives. Originally, the Senate was designed to complement the Constitution’s overall system of federalism. The goal was for States to keep Washington from running roughshod over their jurisdiction just because more populous states wanted something, and the role of the Senate was to cool the populist fervor of the House of Representatives.
Madison expressed this idea quite succinctly in Federalist No. 62:
[T]he equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States. It must be acknowledged that this complicated check on legislation may in some instances be injurious as well as beneficial; and that the peculiar defense which it involves in favor of the smaller States, would be more rational, if any interests common to them, and distinct from those of the other States, would otherwise be exposed to peculiar danger. But as the larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this part of the Constitution may be more convenient in practice than it appears to many in contemplation.
It goes without saying that the Seventeenth Amendment, and most of the legislation of the early Progressive Era and the New Deal, and beyond, have turned the States into little more than lines on a map. With very few exceptions, everything is now run from Washington in one respect or another. In that sense, the elimination of the Senate, either in reality or via the method Pascal proposes, would seem to be a logical next step, but that doesn’t mean we should take it. The Senate was not meant to be “democratic”, it was meant to be a place where cooler heads, beholden to something more than just the will of the people could temper the fluctuating flame of shifting public demands. We eliminate it at our peril.
After dealing with the Senate, Pascal moves on to the House of Representatives:
A 29th Amendment would increase the U.S. House of Representatives from 435 to a total of 777 members who would all serve 4-year terms, with one-half (½) of the House up for election every 2 years. It would become a continuous legislative body as is the Senate where only a third of Senators are up for election every 2 years. Each state would still have at least one Representative as provided by the Constitution. Actually any number between 500 and 1,000 would work so long as it becomes too expensive to bribe enough Members of Congress to influence important legislation.
Of all modern democracies, the U.S. has the most people allocated per federal legislative district (between 525,000 and 700,000 each) compared to most other countries which have less than 250,000 people per national assembly seat. These changes would significantly reduce the perpetual campaigning and fundraising that consumes more than half the time of our U.S. Representatives who must stand for election every other year. They may also increase direct voter access to their Congressional representatives and limit the power of a few well-moneyed campaign contributors.
Of all the proposed Amendments, this one is probably the least objectionable. Yes, there is probably something not quite good about increasing the number of Members of Congress, but Pascal has a point when he points out the fact that many Congressman have constituencies larger than the population of some states. If there were more Congressman representing smaller Districts, they would arguably more responsive to the opinions of their constituents, which is, after all what the House of Representatives is all about.
In fact, Pascal’s proposal isn’t all that radical considering that something very similar was proposed as one of the first 12 Amendments to the Constitution:
After the enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.
Because it did not receive enough support, this proposed amendment is not part of the Bill of Rights. Had it been passed, though, it would have required that the size of Congress be adjusted with every Decennial Census and the House of Representatives would have as many as 6,000 members, one for every 50,000 Americans.
The one objection that could be raised is that a House of Representatives comprising 1,000 or more members would be administratively unwieldy, but one can assume that House procedures and Rules would have evolved to accommodate a larger membership.
On a whole, this is probably an idea worth considering.
Pascal then moves on to the great bugaboo, the Electoral College
A 30th Amendment would eliminate the Electoral College and have the President and Vice-President elected by direct popular vote. In this manner, all candidates would have to campaign in every state and not just “battleground” ones, because one could never tell where the winning votes might come from. No state or large groups of the electorate would be disregarded as being safely in the Blue or Red camps as occurred for all of the Presidential contests since 1996.
The more likely result of Pascal’s proposal to eliminate the Electoral College would be that Presidential candidates would concentrate their campaigns in high population states like Texas, California, Florida, and New York and ignore smaller states and smaller venues. Moreover, direct popular election would potentially make election outcomes less certain by nationalizing vote-count errors and fraud allegations. In a close election, the fate of the Presidency could be in doubt for months, and while we may have been able to afford that luxury in 1800, we can’t afford it today.
Instead of eliminating the Electoral College, it would be far preferable to reform it by adopting the District Method:
This method divides electoral votes by district, allocating one vote to each district and using the remaining two as a bonus for the statewide popular vote winner. This method of distribution has been used in Maine since 1972 and Nebraska since 1996, though neither state has had a statewide winner that has not swept all of the Congressional districts as well. Consequently, neither state has ever spilt its electoral votes.
Though I personally don’t think that the current Presidential election system is as bad as people make it out to be, the District method not only makes sense, but would also make Presidential elections more of a nationwide phenomenon than they are today. Rather than ignoring a state entirely because it so heavily favors their opponent, candidates would have an incentive to concentrate on areas of the state where they would be able to win one, or more, Congressional Districts and thus pick up an Electoral Vote or two that could make the difference in the election.
Pascal’s final proposed Amendment is perhaps the strangest of all:
A 31st Amendment would define and limit “person” for all Constitutional and legal purposes to natural born human beings. It would not attempt to define the beginning or end of human life, as that would be left to each state, or to future generations through legislative enactments. This is not a proposal to address abortion, euthanasia, or marriage, which could properly be the subjects of other Amendments. Most importantly the definition of “Person” would exclude all business, social, labor, or other organizations, including corporations, partnerships, companies, LLCs, foundations, Unions and all government-created “legal fictions.” This clear definition is particularly important for defining whose speech and civil liberties are to be legally protected and who may give money to political organizations and individual campaigns. Business entities, trade organizations and other legal fictions should be protected under the 5th Amendment and other specifically enumerated and reasonably related Constitutional protections but they should not be equated with living individuals. This was a serious interpretive mistake from several past U.S. Supreme Court decisions that must be rectified to reassert the authority of people over corporations.
Frankly, I’m not even sure why this Amendment is necessary, though I suspect it’s rooted in the objection many on the left have to corporate political donations and lobbying efforts. Even if the notion of corporate personhood were eliminated, though, business interests would still find ways to influence the state as long as we have a state that interferes so extensively in the private affairs of it’s citizens. The solution isn’t to re-write 200+ years of corporate law, but to change the nature of government.
On the whole, Pascal’s proposed Amendments are a plethora of bad ideas. Fortunately, they have very little chance of being considered, and even less of being adopted.
