Introduction to Part III

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]:

Sidebar: “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 a new “Constitutional 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.

Language

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.

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 in those states that have adopted it only after it has been adopted (or “ratified”) by a plebiscite of all eligible 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 two-thirds 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 that many people across that many states 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 follow suit in due course.

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.

Procedure for Creating and Editing Constitution II, and for Submitting it to the People of the 50 states

As was the case before the 1787 Constitutional Convention, all states are 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. A Constitution II Convention, charged with the task of drafting the new Constitution, should come into existence when 60% of the states call for same and agree to send representatives to it. Additional states can join the process throughout the Constitution II Convention whenever they see fit to do so. A state can call for a Constitutional Convention, or join the Constitutional Convention already in progress, by either an action of the state legislature or by a plebiscite of its citizens.

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

Here are suggested steps to the creation, approval, and implementation of Constitution II:

  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. 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.
  2. 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. 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. This body, 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 and each section of each article of Constitution II.
  3. 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.
  4. 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.

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/section.
  • In all cases, spelling, punctuation, and capitalization have been updated to reflect modern usage.

 

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

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

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