Time for Constitutional Convention 2.0?

One of the best things about the Constitution of the United States of America is that it created a process for amending the Constitution. The people that created the constitution (who are called the “framers” in political science literature) knew that despite all the work they put into it the Constitution was not perfect. Even if it had been perfect for the time in which it was written, many things have changed. In the almost 225 years of its existence, the Constitution has been amended 27 times. Although Article V of the Constitution provides two separate ways of proposing amendments, every one of the amendments has been proposed by the same method. The means of proposing amendments that has always been used has been a vote by a two-thirds majority of both the House of Representatives and the Senate. The means that has never been used successfully (the process was started, but not completed) is the calling of a convention for the purpose of proposing amendments upon application by two-thirds of the states. It is time we started thinking about using the constitutional convention process. Relying on Congress as the only means of proposing amendments means that the only amendments that are proposed are the ones that Congress finds convenient. If there is a need for an amendment that reduces the power or prestige of the Congress or its members or which Congress finds to be inconvenient, it is highly unlikely to be proposed. For example, the 22nd Amendment limits the President of the United States to two terms. Congress would never propose a similar amendment limiting the number of terms of office of members of Congress: they could limit the terms of the President because the President has no role in the process of amending the Constitution. Polls have shown that the American public is losing faith in Congress as an institution. It doesn’t make sense for an institution in which the American public has so little faith to have exclusive control over proposing amendments. It is time to give more control to the people and the states.

The method of proposing an amendment to the Constitution that has not yet been used successfully is that of a convention for proposing amendments that Congress calls on the application of two-thirds of the states. Such a convention is referred to in political science literature as an “Article V” convention, because Article V is the part of the Constitution that says how the Constitution is to be amended. There are a number of problems involved in applying for and calling an Article V convention, and much of the problem comes from the wording of Article V itself. For example, there is no standard about what an application by a state for an Article V convention is. Must a state call for a convention that may then make whatever amendments it wants and as many as it wants, or can a state restrict its application to calling for a convention that is restricted to proposing one amendment on a specific subject matter? If several states apply for Article V conventions regarding amendments on similar subjects, how is the decision made about whether they are about the same subject matter? Who keeps track of how many applications are submitted? May a state retract an application for a convention once it has applied? How is representation at a convention apportioned – by population or be each state having an equal number of delegates? Who chooses delegates to a convention and by what method? In order to keep any potential Article V convention from becoming a big controversial mess, I propose first that Article V itself be amended to clear up these issues.

In future posts, I intend to discuss the history of applications by states for an Article V convention, the problems with the process that the history reveals, and specific suggestions I have to clean up the mess. Meanwhile, I ask readers of this blog to participate in the discussion. If you could propose amendments to the Constitution, what amendments would you propose? Some people have suggested that an Article V convention could degenerate into a “runaway convention” proposing many amendments that could do harmful things such as limiting the rights protected by the Bill of Rights. Others think that the fact that amendments needed to be ratified either by three-fourths of the states or be conventions in three-fourths of the states (whichever method of ratification is proposed by Congress) prevents a possible runaway convention from being a realistic threat. What do you think? Post a comment with your thoughts. Comments may not be available for others to view right away because I moderate the comments.

There Ought to be a Law, But Not So Many

The fact that the last time I published anything on my blog was July 16, 2011 make it seem that I am missing the whole point of having one, but I have been finishing up a Master of Arts degree from American Public University in Political Science and writing for the courses there has drained my energy for writing. I have now finished the requirements for the degree (with honors); conferral date is May 15. It will be my fourth degree, which makes me nearly as much of an education junkie as my wife Sandy, who has six. Now that I am done writing about things because I have to, I can write about things because I want to. Sandy also has ambition to do more writing, both on her own and in collaboration with others and me. A couple of topics that interest me are (1) the rule of law (2) Article V of the United States Constitution, the one about how the Constitution is amended. I intend to write more about both topics in later posts, but let me get started scratching the surface of one of those two topics, the rule of law. Plato sparked my interest in the rule of law when I read about an observation of his in my course on the history of political philosophy. Plato observed that lawlessness does not mean the absence of laws. It can also mean the habitual disregard of laws by the government, especially those laws that are meant to restrain it. A government that can change laws merely because it finds current laws to be inconvenient is lawless. He made that observation more than 2000 years ago. It occurred to me that we are currently developing a type of lawlessness caused laws that are too numerous, too complicated, and even laws that contradict other laws. It is becoming more difficult to be a law-abiding citizen because to obey the law, one must be able to know what the law is (or at least be able to find out what it is with reasonable effort), be able to understand it, and not be forced into a situation in which to obey one law one must disobey another. In most cases it is easier to obey laws that are harsh and unreasonable than laws that cannot be understood, are too numerous to follow, are contradictory, or can be interpreted in unpredictable ways by an adjudicator. Since I am writing this in early April and haven’t filed my income tax returns, the example that springs first to mind of a set of laws that is way too complicated is the Internal Revenue Code, or what it would be named if names of acts of Congress were more accurate – the Attorneys and Accountants Full Employment Act. If the only goal of the federal income tax were to raise revenue, the Internal Revenue Code would be simple and complying with it would be uncomplicated. However, the Internal Revenue Code has developed multiple goals that are designed to engineer behavior – to encourage behavior that the federal government approves of and to discourage behavior that it does not approve of. More recent examples of laws that are not only large and complicated by themselves (over 2000 pages each) but invite countless regulations to be written to further complicate the lives of people in regulated industries trying to obey the law are the Patient Protection and Affordable Care Act (otherwise known as Obamacare) and the Dodd-Frank Wall Street Reform and Consumer Protection Act. I have much more to say about the rule of law, but that will have to wait until later. Meanwhile, I would appreciate comments from readers about personal experiences regarding difficulty following laws because of their volume or complexity or situations in which following one law required disobeying another. Comments reflecting a different viewpoint are also welcome.

Two Lies for the Price of One

Recently, President Obama responded to the question of a reporter about whether Social Security checks would go out on August 3 if the debt ceiling was not raise by August 2 by saying, “I cannot guarantee that those checks go out on August 3 if we haven't resolved this issue because there simply may not be the money in the coffers to do it.”

I have seen a few comments that this points out the lie that politicians have told for years that there is a Social Security trust fund that guarantees that Social Security benefits will be paid. In truth, the so-called trust fund is a promise by the rest of the government that when payroll taxes become inadequate to pay the Social Security benefits that they are intended to finance, the government will raise the money to pay the short fall – by either taxes or borrowing. In other words, the trust fund is not really backed by anything other than a bookkeeping entry and a promise by the government to pay – provided of course that it is able to.

What everyone seems to be overlooking, however, is that even in the absence of a trust fund and even in the middle of a weak economy, there are enough payroll taxes being collected to pay for nearly all of the Social Security benefits that need to be paid. More importantly, as long as they are needed to pay Social Security benefits, those taxes cannot legally be used for any other purpose; they are dedicated specifically for the purpose of paying Social Security benefits. In other words, there will be plenty of money in the coffers that can be used to pay for Social Security benefits and for no other purpose. There may be some shortfall, but I am so confident that the government can and will make up whatever shortfall there may be with the other tax revenue that comes in, that I will do what the President is unwilling to do and guarantee that Social Security benefits will be paid in full. Well, OK, I am not really guaranteeing that because I don't actually have the billions of dollars it would take to make good on such a guarantee, but the point is I think the President has made so many promises that he has no ability, and perhaps no intention, to keep that he overlooked that a promise to pay Social Security benefits on August 3 is one of the easiest promises off all to keep – no matter what happens with the debt ceiling by August 2.