Hamilton, Madison, and Jay

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Tuesday, October 9, 2007

Larry Sabato -- "We need a new Constitution"

I always cringe when people talk about this and it's due mostly to the fact that few understand the founding document, and most of that ignorance is due to the fact that it's not thoroughly taught in schools anymore. Yes, history teachers touch on it, remark on the Philadelphia Convention, and go over the Bill of Rights, but for the most part the rest of the Constitution is virtually ignored. It's not a hard document to read or understand, and too many when trying to interpret it make a mountain out of a mole hill.

Larry Sabato penned an opinion piece in today's LA Times where he offers up some suggestions. Needless to say I'm not too impressed, and I'll explain on the points that I believe he screwed up on:

* Restoring the war powers balance. The framers split authority concerning matters of war-making between the president (commander in chief) and Congress (declaring war). Does anyone seriously believe that they would have approved of the executive department waging years-long wars without the explicit approval of the legislature? Yet the advantages accruing to any president -- the unitary nature of the office, the swift action that only he can take in a hair-trigger world, his dominance of the televised public forum -- have created an emperor as much as a president. The constitutional balance of shared war-making must be restored.

The president should have the freedom to commit troops for up to six months, under procedures similar to that of the War Powers Resolution of 1973. But a new constitutional amendment should require that after six months -- and every six months thereafter -- both houses of Congress, by affirmative vote and without filibusters, would have to approve any extension. If one house votes no on extending, all combat troops must be withdrawn within a year.

The Congress and the president don't share "war-making" powers. Congress declares it and the president commands the soldiers, as per their enumerated powers. Once war is declared, Congress can do one of two things: Continue to fund it, or defund it, thereby bringing troops home. But the president calls the shots. If President Bush so chose he could go to Congress and ask for a declaration of war on Iran based on their incessant interference in Iraq. they have attacked and killed our soldiers, which in and of itself is an act of war.

As it was debated last night by the GOP candidates, the president, legally, could wage a limited campaign against a foreign power -- provided there is justification for it -- without Congressional approval. (That wouldn't happen, and we know it because the president would want to make sure his bases were covered.) But there is no need to "restore" what wasn't there to begin with. The powers of the Congress and the president were succinct and specific. Like the old saying goes, "Don't fix it if it ain't broken."

* Creating a more representative Senate. Stunningly, just 17% of the current American population elects a majority of the U.S. Senate. This is because even though California has about 70 times the population of Wyoming, both states get two U.S. senators. The larger states may have 83% of the nation's people, but they get nothing without the approval of the lightly populated states. In the beginning of the republic, the population differential between the large and small states -- and thus the unfairness -- was far less.

But today, the structure of the upper chamber of Congress is completely outmoded. Let's build a fairer Senate by granting the 10 states with the greatest population two additional senators each, and the next 15 most populated states one additional senator each.

At the beginning of the republic, senators were chosen from amongst the various state legislatures, not the people. Since the ratification of the 17th Amendment in 1913, the populace began electing their senators. The Senate was meant to show equal representation for the States. The House, also known as "the People's House," was based on populace, and a better representation of the populace of the nation, and their respective States.

The Framers determined that because the House would directly reflect the people, they would be charged with revenue raising initiatives, i.e. taxes, etc. The Senate, being the far more deliberative body, would deal with much weightier issues, such as the ratification and approval of treaties, the confirmation of appointed federal officers, tries all impeachments, and deals with the election of the vice president if no majority exists in the electoral college. (If the same thing occurs for the president, the matter is left up to the House, being the official "voice" of the people in Congress.) The Senate should remain as it is where the States -- regardless of size or population -- maintain EQUAL representation.

* Ending second-class citizenship. We promote the cultural myth that any mother's son or daughter can grow up to be president, but it isn't even literally true.

The founders were concerned about foreign intrigue in the early days of an unsettled republic, so they limited the presidency to those who were "natural born" citizens. But the melting pot that is now the United States includes an astonishing 14.4 million Americans who were not born on U.S. soil and are therefore ineligible for the presidency -- a number sure to grow substantially. Among them are 30,000 members of the U.S. armed forces who risk life and limb to defend those enjoying first-class citizenship.

Any American who has been a citizen for at least 20 years should have the right to aspire to the White House.

While I can sympathize with the idea, I wholeheartedly disagree with the idea. Many people don't know that there are two people in the president's Cabinet that can't be president, should the line of succession go that far. Both Secretary of Commerce Carlos Gutierrez and Secretary of Labor Elaine Chao aren't natural born citizens. The provision was put into the Constitution exactly to avoid any sort of foreign intrigue. Can anyone imagine what a George Soros presidency would be provided he had been here for 20 years? How about Mahmoud Ahmadinejad? I know there was a small movement back in 2004 with a consideration to change the Constitution to allow Governor Schwarzenegger the chance to run for president, but it died quickly when Constitutional scholars quelled the idea.

This is nation is exclusively American. We already have enough foreign ideas bouncing around the noggins of politicos in DC (and even a couple of jurists on the Supreme Court have foreign predilections) that we don't need more of this nonsense shoved on us by the president. We saw, in late spring this year, that the nation doesn't want some foreign ideas. The amnesty bill that the Senate cooked up and tried to slide under the radar is exactly what Mexico would prefer, and people were outraged by it. Likewise, Senator Clinton's health care ideas mirror that of Canada and Europe, where the government is responsible for it rather than the individual; this virtually guarantees substandard treatment and service.

We'll agree that some adjustments to the Constitution should be made. A federal marriage amendment and a term limit amendment would be welcome in our books. (For the latter, don't hold your breath.) But to change what isn't broken is idiotic. It's also presumptive; to believe that you knew better than the Framers is preposterous. Mr. Sabato cites Thomas Jefferson in the beginning of his piece:

Thomas Jefferson, for example, insisted that "no society can make a perpetual Constitution. ... The Earth belongs always to the living generation. ... Every Constitution ... naturally expires at the end of 19 years" (the length of a generation in Jefferson's time).

Except Jefferson wasn't involved in the crafting of the Constitution. He was in Paris at the time. And the Framers placed in the Constitution the provisions for amending it if needs be. To date there are twenty-seven amendments to the Constitution -- seventeen beyond the original ten, starting in 1795 with the ratification of the Eleventh Amendment. But the Framers created the Constitution -- Articles One through Seven -- to endure the test of time.

Constitutional scholars, like myself (twenty years of study on the document should at least qualify me as a "lay" scholar), agree on this fact. They agree that the document is probably one of the most perfect ones ever conceived, and what a radical idea it was for it's time. The world laughed at us when it was created, believing we had created nothing more than the method of our own destruction. Benjamin Franklin, upon emerging from the Philadelphia Convention, was asked what the Framers created.

"A republic," he quipped, "if you can keep it."

I think we've done a pretty good job maintaining it since then, and I really see no reason to fiddle with it now outside of a possible amendment or two. but certainly nothing that directly changes what are enumerated powers.

Publius II


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