The difficulties of altering the Constitution should not dissuade us from trying to improve it.
With the Equal Rights Amendmentmaking its way back into the news in the month of February, the legal community has been abuzz with the possibility of a 28th Amendment finally getting tacked on to the Constitution. Of course, much of this conversation has been dedicated to whether the Equal Rights Amendment (ERA) would need to go back through the full ratification process, meaning that it is probably a non-issue at the moment.
Still, the conversation always gets the cerebral juices flowing for legal enthusiasts; the idea of amending the US Constitution, something done only twenty-seven times in history, is about as close as one will get to actually sitting among the Founders in Philadelphia.
With that in mind, here are some ideas to tickle your gray matter.
The Sixteenth Amendment to the Constitution of the United States is hereby repealed.
In short, abolish the income tax. This is usually a crowd-pleaser among libertarians and probably a handful of Republicans during an election year, but it is also a bit of a challenge, on the same level as chasing the moon. Still, it would be worthwhile to have the conversation.
Generally speaking, income taxes are most harmful to the lowest income earners. When businesses and the wealthy are paying significant portions of their income to the government, it stagnates growth and prevents job creation. It also prevents those of lower-income from spending more money or saving and investing it in themselves, limiting upward mobility.
There is also the political aspect, which would make this Amendment virtually impossible to pass. Both Republicans and Democrats campaign heavily on income taxes, either to lower or raise them. Much like Social Security, to remove or reform it would eliminate party platforms. Still, one can dream.
The Seventeenth Amendment to the Constitution of the United States is hereby repealed.
Before the ratification of the Seventeenth Amendment in 1913, Senators were not elected by popular elections, but by the legislatures of each state. Following the 2016 election, which saw Donald Trump lose the popular vote, but win the electoral college, discussions of abolishing the electoral college entirely have reached a fever pitch. Several Democratic candidates have indicated their intent to abolish the system.
Unfortunately, democracy does not guarantee liberty. It was seen as mob rule by the Founders, who opted for a Constitutional Republic. But even a representative democracy has its problems. The larger the body politic, the more difficult it is to truly find representation, especially within a two-party duopoly. While some may say that a senator elected with 51 percent of the vote is a fair system, it runs counter to the spirit of representative democracy.
While the makeup of a state legislature may lead to the same results as a popular election, it would still provide for greater balance and would eliminate the ability of large population centers to dominate elections in the same manner that the electoral college prevents the few largest cities and states from dominating the field.
The word “unreasonable,” contained within the Fourth Amendment to the Constitution of the United States, is hereby stricken.
This Amendment is straightforward: it removes the qualifying adjective of “unreasonable” from the Fourth Amendment, which will make clear that any and all searches or seizures of persons or property, papers, houses, and effects, must require a lawful warrant. This would eliminate such legal precedent as Terry v. Ohio, which allows the search of a person who has been temporarily detained, so long as an officer has reasonable suspicion of criminal activity.
Like most exceptions to the law, the “Terry stop,” which has been expanded to include traffic stops, has been widely abused, particularly within the context of the War on Drugs. Rather than continue to challenge such precedent in court, we should eliminate it altogether.
The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.
This Amendment will look familiar to history buffs. The above text is actually the original Sixteenth Amendment, proposed alongside what became the Bill of Rights. And while it was never ratified, now would seem to be the perfect time to dust it off and put it back on the table.
If you asked even the casual observer of their opinion on the Separation of Powers, they would probably say that it’s a neat idea. Unfortunately, that’s all it has become. Through decades of party politics and a misunderstanding of the Office of the President, the powers of the presidency have continually expanded, while Congress has willfully sat back to avoid national scrutiny. With War Powers being of the greatest concern, the original barriers between the three branches of government have long been torn down.
Fortunately, the Senate recently passed a resolution to reaffirm, in part, Congress’s need to be in the room when considering military action. It’s disheartening, however, that it took the assassination of a foreign official to bring about such action. By making the Separation of Powers a matter of law, rather than just an ideal, the longstanding precedent of the imperial President and a feckless Congress can be eliminated entirely. It is no longer enough for the Separation of Powers to live within the text of the Constitution; it must be an explicit law.
Congressional War Powers, as defined under Article I, Section 8, Clause 11 of the Constitution of the United States, are hereby subject to the following criteria, which must be met in order to secure a proper Declaration of War.
Section 1. Congress must define the grievances under which war, or military action, is considered necessary.
Section 2. Congress must demonstrate all efforts and actions taken to resolve such grievances, as defined in accordance with Section 1., diplomatically. These efforts must be shown as exhaustive and each effort must be shown as having failed before a Declaration of War may be introduced.
Section 3. Congress must demonstrate immediate peril that, without immediate military action, would lead to the loss of American life and property.
Section 4. Congress must define the enemy against which war is to be declared. This is to include, but is not limited to, geographic location and national boundaries, official leadership, military strength and assets, and national population.
Section 5. Congress must define a clear standard of victory which, once achieved, will cause an immediate cessation of hostilities and a renewed peace process.
Section 6. Congress must demonstrate that the estimated costs of a Declaration of War, both fiscal and human, will not outweigh the perceived benefits of victory, as defined in accordance with Section 5.
Section 7. Congress must actively monitor all military action and inform the public on all costs and progress towards victory, as defined in accordance with Section 5.
Section 8. Congress must review and determine, every three months, if hostilities must cease or continue by a rollcall vote.
Piggybacking on the proposed 31st Amendment above, a Just War Amendment would make up for a failure in Article I of the Constitution. While the Framers vested the power to declare war with Congress, rather than the President, they failed to define what would constitute a just Declaration of War.
Reaffirming the Separation of Powers and removing the President’s ability to wage endless war with little oversight from Congress would be a major first step but is not enough. Limiting Congress’s ability to declare war with no direction or clear purpose, while simultaneously putting full responsibility and national scrutiny on the Legislature, would greatly limit its ability to declare war at all.
More Work to be Done
These are only a handful of possible Amendments that make up a slew of possible changes to the Constitution. In a previous draft, I also proposed abolishing Congressional salaries, for which I have previously advocated, as well as abolishing the death penalty and the Selective Service, establishing Congressional term limits, and a Balanced Budget Amendment.
Over the course of American history, nearly 231 years since the ratification of the Constitution, thousands of Amendments have been proposed. The hard reality of our Constitution is that it is not a perfect document, but rather an attempt at perfection. To put it another way, it is an attempt at the impossible.
Amending the Constitution is no small task and we should not expect it to be. It must be approached with caution and thoughtfulness, reason, and the ability to look for the unforeseen consequences that plague governments.
The difficulties of altering the Constitution, however, should not dissuade us from having the conversations necessary to do so. Such debates give us a greater understanding of our fundamental laws, their strengths and their weaknesses, without which we cannot thrive.
EDITORS NOTE: This FEE column is republished with permission. All rights reserved.