Tag Archives: amending the Constitution

Fix It–Or Forget It?

Heather Cox Richardson recently brought her historian’s perspective to what she suggested were signs of civil discord–even, potentially, civil war. They included a speech by GOP Representative Madison Cawthorn of North Carolina, in which he insisted that the January 6 rioters are being held as “political hostages.”  Evidently, someone in the audience asked him “When are you going to call us to Washington again?” (I found the “again” rather incriminating…) Cawthorn, a member of the GOP’s growing lunatic caucus, took the bait, saying“We are actively working on that one…. We have a few plans in motion that I can’t make public right now.”

Among other alarming remarks he made was his declaration that “The Second Amendment was written so that we can fight against tyranny.” (Those guns really going to win the day against government tanks and drones, Madison?)

Incredible as it may seem, right wing figures are calling for civil war.

Richardson also quoted one Steve Lynch, a candidate for Northampton County executive, for the following “advice:” “Forget going into these school boards with freaking data. You go into these school boards to remove them. I’m going in with 20 strong men and I’m gonna give them an option—they can leave or they can be removed.”

Also to be filed under “chilling” was a placard held by a man who attended a Santa Monica protest leading up to a vote on a mask mandate; the sign had  the names and home addresses of each Los Angeles City Council member and threatened that protesters would visit the homes of those who voted for the mandate. If it passed, the sign warned, “Civil War is coming! Get your guns!”

A paper recently published by The Brookings Institution actually considered arguments for and against the likelihood of an upcoming civil war–an analysis that would have seemed preposterous not so long ago. (The authors ultimately decided such a war is unlikely–but  in the wake of the January 6th insurrection, it isn’t beyond the realm of possibility.)

In the Washington Post, Greg Sargent considered the “fixes” that need to be made to the Electoral College count in order to avoid a future election being stolen. As he pointed out, the Act’s language, which sets the process for Congress to count presidential electoral votes, is vague and prone to abuse.

The ECA sets a “safe harbor” deadline: If a state certifies its electors six days before the electoral college meets, Congress must count them, but it can technically throw out a particular electoral vote if it decides it was not “regularly given.” This phrase is supposed to indicate serious corruption or illegality but isn’t defined, leaving it open to bad-faith congressional objections to those electors.
 
The ECA is supposed to provide for resolution of resulting disputes in Congress over any state’s slate of electors. If a single senator and House member objects to a slate, each chamber must vote on them. If both chambers agree to invalidate the slate, they don’t get counted.

There are several main ways this can result in stolen elections. One is if a state sends one slate of electors — a valid one reflecting the state’s popular vote — and both chambers decline to count them, based on a bogus claim that they were not “regularly given.”
 

Given that the current iteration of the Republican Party should probably be renamed “Bogus Claim R Us,” this is not a fanciful scenario. As Sargent reminds us, the scenarios he enumerates are exactly the ones Trump pressured GOP state legislatures to adopt– and many Republican members of Congress raised obviously bogus objections to acceptance of the correct slates.

Meanwhile, “audits” in Arizona and elsewhere are dry runs at manufacturing pretexts to raise sufficient doubt about a state’s popular vote to trigger such scenarios.

I know I harp on gerrymandering and the media environment, but before the advent of computers made it possible to micro-target voters and social media made it possible to shut out voices of reason, the parties generally steered clear of nominating the sorts of lunatics who are driving the current political debates.

Most conversations about the Constitution center on the rights protected by the Bill of Rights. But the Constitution also prescribes mechanisms for electing and governing–and if we don’t modernize several of those mechanisms, we’ll end up losing the Bill of Rights.

We need to fix it–or just forget about the American Experiment.

 

 

Be Careful What You Wish For

Yesterday’s Star had a front page story about state lawmakers who want to call a new Constitutional Convention. Last Sunday, the following Op Ed ran in the Fort Wayne Journal-Gazette. I wrote it in response to a request from that paper’s editorial board, and I suggest several reasons why convening such a Convention would be a mistake.

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Periodically, lawmakers who are frustrated by their inability to change government policies of which they disapprove will propose a shortcut: they’ll reform the system itself, by convening a Constitutional Convention.

Fortunately, these efforts rarely succeed.

Why do I say “fortunately”? Because—like poison gas—system change is only a great weapon until the wind shifts.

When activists clamor for wholesale changes or major revolutions in the status quo, they always assume that the changes that ultimately emerge will reflect their own preferences and worldviews.

History suggests that’s a dangerous assumption.

Indiana Senator David Long wants the states to convene a Constitutional Convention under provisions of Article V that authorize such actions. In response to people who warn that delegates could seize the opportunity to open the proverbial “can of worms” and drastically rewrite the national charter, he insists that the convention could be limited in scope. Even if he is correct in that assertion (and many constitutional scholars think otherwise) the “limited goal” he describes is anything but.

Long wants the convention to devise “a framework for reigning in overspending, overtaxing and over-regulating by the federal government and moving toward a less centralized federal government.” These are very general goals, susceptible to multiple interpretations and almost infinitely malleable.

Right now, for example, Wall Street bankers are protesting post-recession financial “overregulation” that seems eminently reasonable to most taxpayers, if polls are to be believed. Whose definition would prevail?

My definition of “overspending” might be the massive subsidies enjoyed by (very profitable) U.S. oil companies, while yours might be Medicare or Medicaid or farm subsidies. Many Americans think we spend too much on the military; others would target Pell grants or foreign aid.

“Less centralization” could justify virtually any limitation of federal government authority, from FDA regulation of food and drug quality to laws against discrimination.

In addition to genuine disagreements about such issues, well-financed special interests would undoubtedly see a Constitutional convention as a golden opportunity to influence the process.

But the risk isn’t simply that a Convention could rather easily be hijacked by people who disagree with the conveners about the nature and extent of needed changes. There is also a real danger in calling together a group of people and asking them to amend a document that few of them understand.

At the Center for Civic Literacy at IUPUI, we focus on the causes and consequences of what we’ve come to call America’s civic deficit. The data is depressing. Only 36 percent of Americans can even name the three branches of government. Only 21% of high school seniors can list two privileges that United States citizens have that noncitizens don’t. Fewer than a quarter of the nation’s 12th graders are proficient in civics. I could go on—and on.

I see evidence of our civic deficit in my Law and Policy classrooms. Even bright graduate students come with little or no knowledge of American history, episodic or intellectual. Most have never heard of the Enlightenment or John Locke. They certainly haven’t read Adam Smith.

A truly depressing percentage of undergraduates can’t explain what a government is, and they have no idea how ours operates. Separation of powers? Checks and balances? The counter-majoritarian purpose of the Bill of Rights? Blank stares.

To his credit, Senator Long is one of the few Indiana legislators who recognize the importance of civics education and who support efforts to remedy the deficit. His efforts in this area are truly praiseworthy, which is why I find his willingness to turn over the task of rewriting our Constitution to people who don’t understand the one we have so puzzling.

Actually, the existing Constitution provides We the People with a remedy for unsatisfactory governance: it’s called elections. If we aren’t angry enough to use the electoral process to throw the bums out, there’s little reason to believe we are ready or able to improve upon the Constitution—and many good reasons to refrain from trying.