Constitution II: Why and How

 

“It must be considered that there is nothing more difficult to carry out nor more doubtful of success nor more dangerous to handle than to initiate a new order of things; for the reformer has enemies in all those who profit by the old order, and only lukewarm defenders in all those who would profit by the new order; this lukewarmness arising partly from the incredulity of mankind who does not truly believe in anything new until they actually have experience of it.”

Nicolo Machiavelli  , (1469 – 1527)
The Prince

 

Why Do We Think We Have the Authority to Do This?

So you are telling me that we should keep a system that gives each voter in Wyoming 66 times more electoral power in the Senate than each voter in California? and the reason we should keep this system is because some Virginia plantation owners in 1787 wanted to ensure that their stranglehold on political power would not be diluted by the radicals in Massachusetts and New York who allowed nearly everybody to vote? Really? and this despite the fact that neither Wyoming nor California was party to this “deal”? and you still want to call this a democracy?

Please.

Let me review the considered opinion of the “Father of the Constitution”[1]:

 

If there be a principle that ought not to be questioned within the United States, it is that every man has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart, and sealed with the blood of American martyrs, but is the only lawful tenure by which the United States hold their existence as a nation.

James Madison

The Articles of Confederation of 1781 permitted amendments to those articles, but only if the amendment was agreed to by Congress and then ratified by the legislatures of all 13 states. There were lots of shortcomings to the Articles of Confederation, not the least of which was this requirement for unanimous agreement by all the state legislatures to any changes.

Therefore, when the Constitutional Convention was held in 1787, the Framers of the Constitution quite simply ignored the method for amending the Articles of Confederation spelled out therein. In fact, if they had followed the Articles of Confederation’s rules for making amendments, the whole effort would have been scuttled from the get-go, since the state of Rhode Island declined to even send a delegation. Rather, the Framers created a completely new form of government, and they announced that this new government would come into force in all the states that adopted it, as soon as 9 states had adopted it. (In the long run, all 13 states, even including Rhode Island, did ratify the 1787 Constitution.) Note that 9 is more than two-thirds but less than three-fourths of the 13 states.

I feel now like the Framers did in 1787: There is no way that the existing system will be dramatically changed by all those who benefit from it. Therefore, it becomes necessary to go beyond the bounds of the existing constitution and create something very new.

Perhaps the Framers were on to something valuable as a precedent: We may not need to amend the 1787 Constitution by following the rules for amending the Constitution prescribed in Article V thereof. Rather, we can simply create an entirely new Constitution II, an entirely new Government, and adopt it with the consent of the governed. Who gives us the authority to do this? James Madison, of course – the guy who wrote the 1787 Constitution.

Why Do We Need to Do This?

Just look at the process for amending the Constitution, as spelled out in Article V: Congress can propose an amendment by a two-thirds majority in both Houses, or alternatively two-thirds of the state legislatures can call for a convention to propose an amendment; and the proposed amendment becomes part of the Constitution when ratified by three-fourths of the state legislatures. Note, first of all, that the people have no say whatsoever – it is entirely dependent on politicians in the Congress and in state legislatures. Maybe that was okay when the country was just starting out, at a time when even giving power to elected representatives was looked upon as somewhat radical. (In their previous model, the Framers had only England to look at, where power generally derived from the King.) In addition to the amendment process which shuts out the citizenry, look also at the protections built into the 1787 Constitution to ensure that the people would not really be able to affect any outcome: state legislatures chose US Senators; electors in the electoral college, beholden to nobody, selected the president; and even though the voters did elect members of the House, the role of the people was to play second fiddle at best.

Today, our modern American society is far more tolerant of the active participation of all citizens in our politics. Therefore, our new Constitution II should codify the empowerment of the people over the power of politicians.

Since we cannot depend on the existing Powers-That-Be to cede power to the people, it behooves us to assert that power ourselves. The premise of the “Constitution II Convention” – or whatever we choose to call it – is that we the people have the power to create our own democratic government, and we the people have the power to put a new/revised form of government into practice.

Guidelines for the Contents of Constitution II

The new thing we create must be far more democratic, far more subject to the will of the people. It must empower all Americans to play a role, to have a stake, and to have the ability to affect the outcome.

At the same time, we need not, indeed we should not, start over from scratch. As noted in Part I, what the Founding Fathers created was enormously creative, visionary, brave against all odds, and long-lasting. Most of their work retains these qualities. But many details remain incomplete, some provisions are outdated and no longer work as smoothly as intended, some are intentionally anti-democratic and continue to deny us a real democracy, and quite a few significant issues of our time could not have been foreseen when the 1787 Constitution was written. Therefore, for those of us who would like our Constitution and basic form of government to keep working but also want to reform the parts that are broken and fill in the parts that are missing, we are left with two possible courses of action: 1) We could choose to introduce and fight for dozens of Individual constitutional amendments to fix every broken or missing part, including some which we know from the get-go have just about zero chance of ever gaining acceptance from the current power structure; or 2) we could opt for a substantial rewrite of the whole document.

In fact, that is essentially what Constitution II is all about: Keep the original wherever possible, incorporate all previously ratified Amendments, and also incorporate the fixes contained in Part II of this work.

Also consider the rather mundane question of language:

  • The original 1787 Constitution contained 4490 words. Since ratification, we have adopted 27 Amendments containing a total of 3300 words, or 73% of the original length. The two dozen or so amendments suggested in Part II of this work would add about 3000 words, making the amendments longer than the original document.
  • The previously adopted and newly proposed amendments modify or supersede numerous original provisions of the 1787 Constitution, scattered throughout the document, so that even just reading it straight through and understanding how it all fits together is something of a challenge.
  • The English language has also changed since 1787. Americans ought to be able to read their foundational document and understand what it means. We ought to be able to teach this in middle school, and pupils should be able to internalize its core concepts.
  • The Model-T Ford was a fine machine in its day. If you still owned one in 2017 and wanted to modernize it, you could retrofit it to have an automatic transmission, a powerful engine, air conditioning, visible taillights, modern bumpers, and maybe even seatbelts and air bags; the result would be a patchwork quilt of alterations and make-do fixes and hardly recognizable as a derivative of the original. But inevitably there comes a point at which it’s time for a new car, incorporating all the wonderful Model-T features that were novel at the time but also all the advances that have been invented since. That’s where we are with our Constitution.

On the basis of language alone, it’s time to replace the 1787 Constitution as written and amended with a new version, incorporating all the existing amendments into the body of the basic document and also incorporating our new provisions.

Therefore, Constitution II updates the document’s English language usage, punctuation, and spelling. By incorporating all previous amendments into the constitution itself, the whole document becomes much more readable and understandable.

Convening the Constitution II Convention

To adopt a new constitution, we need to convene a constitutional convention for the purpose of creating a new constitution. We will refer to this body as the Constitution II Convention.  The Constitution II Convention will draft the new constitution, Constitution II, and the people in each state will then ratify it.

Two approaches to convening the Constitution II Convention present themselves. The first approach is to follow the procedures in the current Constitution. The second follows the precedent established by the Framers of the current Constitution. Each approach can succeed only with a great deal of active citizen involvement and broad public support.

First Approach

The first approach uses the procedures in Article V of the Constitution to amend the Constitution, specifically, to replace Article V – Amendments with Amendment NNN. Amendment NNN gives citizens the exclusive power to approve all constitutional amendments and to propose a constitutional convention. Congress will still be able to propose constitutional amendments, but only voters will have the power to approve them.

Article V of the Constitution spells out two procedures for proposing a constitutional amendment: a) Two-thirds of the state legislatures ask Congress to call for a convention for the purpose of proposing amendments; or b) Congress itself, by a two-thirds vote in each chamber, proposes an amendment. When Congress submits a proposed constitutional amendment to the states, Congress can specify whether the amendment will be ratified by the state legislatures or by state conventions.

The American people could demand our state legislatures to petition Congress to convene a constitutional convention for the purpose of proposing Amendment NNN. Or we could demand that Congress propose Amendment NNN. We could further demand that Congress specify that state conventions will endorse the will of the people in each state, based on a ballot referendum on Amendment NNN.

Under either procedure, Amendment NNN is then submitted to the 50 states, where 38 states ratify it, making it part of the Constitution.

After we adopt Amendment NNN, a citizens’ petition calls for a constitutional convention to rewrite the constitution. When the voters approve this petition, the Constitution II Convention will take place.

We can expect a challenge to the constitutionality of Amendment NNN, since it removes the guarantee that no state will be denied its equal representation in the Senate without its consent. The counter-argument is that of James Madison: we have the authority to change our government.

If this first approach is successful, then the path will be clear to submit a rewritten constitution to the states for approval by the people, in accordance with the procedure in Amendment NNN.

Second Approach

We should try the first approach first. It’s clean and straightforward, and it will garner support from those who insist on following the letter of the law.

But what if it doesn’t work? What if political obstructionism prevents us from replacing Article V with the will of the people, and yet public opinion polls demonstrate overwhelming public support for convening the Constitution II Convention?

In that case, we may need to follow the precedent of the guys who wrote the 1787 Constitution. That is, ignore the rules in the existing document for amending it, because those rules are so prejudiced in favor of the existing power structure that we can never expect them to relinquish that power voluntarily.  Instead, convene a new constitutional convention of the people, and campaign for widespread public support.

Here are specific suggested steps for convening the Constitution II Convention using the second approach:

  1. The process begins with a petition, organized and circulated through any of the national civic organizations with a continuing interest in these matters, demanding a national convention for the purpose of creating a new constitution.
  2. Then an existing non-partisan civic organization with a focus on politics agrees to take the lead in organizing discussions on Constitution II or helps form a new organization with this mission. The League of Women Voters, FairVote.org, Harvard University’s John F. Kennedy School of Government (especially the Roy and Lila Ash Center for Democratic Governance and Innovation), the University of Virginia Center for Politics, and probably a dozen other entities would be candidates for this role. One or more state or national political leaders might see the merit in this effort and lend it credibility.
  3. When citizen support for this endeavor becomes sufficiently widespread and vocal, the sponsoring organization will call together a core group of scribes to write and edit and vet the document.
  4. As was the case before the 1787 Constitutional Convention, all states will be invited to participate in the process of drafting Constitution II; but this time around, direct citizen action must drive the process, rather than allowing politicians to exercise control over the process or veto power over the result.
  5. The Constitution II Convention, charged with the task of drafting Constitution II, will hold its first official meeting when 60% of the states call for same and agree to send representatives to it. A state can join the Constitution II Convention by either an action of the state legislature or by a plebiscite of its citizens.
  6. And, voila!, the Constitution II Convention is underway. Additional states can join the process throughout the Constitution II Convention whenever they see fit to do so.

If this second approach to convening the Constitution II Convention is followed, we can expect an intense national conversation and debate about the proper method to follow for ratification.

Constitution II Convention Procedures

Technology will facilitate participation of a wide swath of citizens in the drafting and editing process.

State governments can designate representatives if they so choose, as can Congress and the federal judiciary; all representatives can participate either electronically or in person. The Constitution II Convention can begin meeting officially when it has representatives from at least 60% of the states. Citizen opinion polls and online voting schemes can be employed to ensure citizen support for each article, section, paragraph, sentence, and clause of Constitution II. I envision a lively, months-long, highly participatory civics lesson, at the end of which the American public will be much better informed concerning their government, their constitution, and democracy, and much more supportive of all three.

When the whole document is complete, sponsors will ask each state to submit it to their voters in a public referendum. This will happen, of course, only if citizens demand it, loudly and consistently over a long period of time.

If Americans follow the first approach to convening the Constitution II Convention, then the ratification procedure will be straightforward, following the procedure in Amendment NNN. Voters at the next general election will accept or reject Constitution II, and if they vote to accept it, then this will become the new constitution and the law of the land in all 50 states.

If Americans follow the second approach to convening the Constitution II Convention, then the path to ratification is less clear. Public demands for a plebiscite in every state will be necessary to force a vote. One can hope that, if several states approve Constitution II, more states will follow, and the effort will gain momentum. Though the last few states might be a challenge, 30 states will ultimately ratify. At that point, the other 20 states will need to decide whether to join in or else lose out entirely, and hopefully all will join.

This scenario is not as far-fetched as it might seem at first glance. In any case, working to achieve it or something like it is far better than simply wringing our hands and complaining bitterly how the system is rigged against us, or how Big Money always wins, or how the entrenched politicians will remain forever entrenched and there is nothing we can do about it.

Consent of 60% of Us

Today, of course, we want our Government to be far more democratic, far more representative of the people, than the Framers of the 1787 Constitution would ever have dared dream. Therefore, this new Constitution II will come into effect only after it has been adopted (or “ratified”) by a majority of voters in at least 60% of the states, including states that constitute at least 60% of the US population according to the most recent census.

The suggested 60% threshold for ratification (for both states and population) is arbitrary. Any number can be argued, both pro and con.

At one extreme, we could put the new Constitution II into effect among the states that have approved it when ratified by just nine states, making up just a majority of the US population. We could argue for this suggestion for two reasons: 1) Precedent, since that is the number of states needed to ratify the 1787 Constitution and put it into effect; and 2) Conveniently, the nine most populous states comprise 51% of the US population.

At the other extreme, we could require unanimous approval by a plebiscite in every state, perhaps with a super-majority in every state. But that would be like trying to amend the Articles of Confederation by unanimous approval of all state legislatures, or trying to reconstitute the US Senate under the strictures of the existing Article V. That simply was not going to happen in 1787, and it sure ain’t gonna happen now.

So 60% seems a reasonable compromise. If a majority of the voters in 60% of the states containing 60% of the nation’s population think it’s time for a constitutional overhaul, then perhaps we ought to just go ahead with it, and trust that the rest of the states will buy into it in due course.

Formatting Notes in Constitution II

  • Most of the provisions of Constitution II are unchanged from the Constitution of 1787 as amended, which Constitution II replaces. Some provisions have been reworded or modernized without changing the original meaning. Provisions copied or modernized from the 1787 Constitution appear in normal type along with a footnote indicating the source.
  • New provisions appear in Italics. As needed, footnotes explain the new wording.
  • In all cases, spelling, punctuation, and capitalization have been updated to reflect modern usage.
  • This wording includes the U.S. Senate (rather than a Chamber of Deputies) as the upper chamber of Congress. If we have a constitutional convention empowered to draft a new constitution from scratch, then we need not worry about limitations on the makeup of the Senate spelled out in the 1787 Constitution.

 

And now for the piece de resistance, Constitution II. Read on!

 

 

[1] James Madison, Helvidius No. 3, September 7, 1793.

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