November 5, 2002

8:35 AM

A New Constitutional Convention? Well, as we are all aware it's election days. Time to reshape our government as we see fit. And we have an remarkably robust blueprint for our government, one that has stood the test of time. But is it time to change? What would your suggestions be if you were present at a new creation? I know these links have a lefty feel, there what I could find. But I'm interested in reasoned perspectives from left and right. Is this process necessary or desirable? What Would You Do?
posted by pjgulliver (39 comments total)

A New Constitutional Convention?

Yes. But I can't help but think it will be sponsored by AT&T, held in the GE Auditorium, and projected live outside on the Philips bigscreen. Underwritten by Boeing.
posted by four panels at 8:43 AM on November 5, 2002

Spelling mistake...should be "they're"...glad I went to four years of college....
posted by pjgulliver at 8:48 AM on November 5, 2002

four panels: my thoughts exactly, and that also underlines exactly what I think needs to change. The corporations need to be yanked out of Congress (or rather Congressional influence), and the situation is rapidly descending into 'by whatever means necessary' territory here.

I have yet to see a good proposal on accomplishing this.
posted by Ryvar at 9:04 AM on November 5, 2002

I'm pretty sure nobody trusts each other enough to write a new constitution.
posted by Stan Chin at 9:07 AM on November 5, 2002

It seems to me that nations generally do not change constitutions until after defeat in a major war. And given our current situation, I fear such a defeat would me massive loss of American civilian life, so that's a scenario I certainly hope does not happen. Does anyone know examples of nations that have peaceably had major constitutional changes?
posted by pjgulliver at 9:11 AM on November 5, 2002

I think that reinterpreting the constitution from a Founding Fathers viewpoint (rather than a "let's see how much we can get away with without technically breaking the rules" viewpoint) would be sufficient to reinvent it.
posted by oissubke at 9:18 AM on November 5, 2002

Hmmm. I agree with the logic in your approach. However, it seems that the Founding Fathers might (MIGHT, I'm not certain and I'm on shaky ideological ground here) have left out certain things that need to be considered. For instance, voting processes. Should we make allowances for a preference voting system? Would this require a change? How about the electoral college? What about specifically addressing the legal rights of corporations? Though the Supreme Court ruled that the 14th ammendment applied to corps, is this really the case? Does there need to be specific language?
posted by pjgulliver at 9:27 AM on November 5, 2002

Constitutional Convention is a horrible idea--it could mean throwing out everything and starting from scratch. What a mess. Got a new situation? That's what Amendments are for.

Our current U.S. constitution has gems like the Ninth Amendment--great stuff!
posted by gimonca at 9:37 AM on November 5, 2002

What's the point, we seem to be too divided as a nation with our views and trust in men that we will not work together or compromise. Our forefathers did, look at Thomas Jefferson 1st election for presidency. He actually tied with Arron Burr and the Federalist who ran against Jefferson conceded the win to him, the other party. Hamilton gave in because he knew Burr would not be good for the young republic and backed Jefferson. Our forefathers may have not liked each other yet they did care about the country enough to respect each other and ignore their own agenda.

I just had a coworker tell me that he knew how I voted because of whom my associations are. Asked me if I voted for a guy, then when I said no went on about my true vote because of my party registration. The thing is I have no party because I didn't vote in the primaries. I share this as I'm wondering.

What kind of nation do we live in today that folks ridicule the men whom voted because it may have not been their way. Yet show no care about those that careless. The irony is that my coworker went out of his way to make strides against me, yet we were like minded enough to vote. The funny thing is I voted similar to his ballot too. That is the problem too much commentary on the other guy, it will never happen.
posted by thomcatspike at 9:39 AM on November 5, 2002

I think that reinterpreting the constitution from a Founding Fathers viewpoint (rather than a "let's see how much we can get away with without technically breaking the rules" viewpoint) would be sufficient to reinvent it.

Let's not deify the Founders, as if they were less politically underhanded than anybody around today, and as if they themselves didn't "see how much they could get away with without technically breaking the rules". Alien and Sedition Act, anyone?

That said, I think a new Consitutional Convention would be a nightmare.
posted by Ty Webb at 9:40 AM on November 5, 2002

For a non-USA example, France changed its constitution as recently as 1958.
posted by gimonca at 9:42 AM on November 5, 2002

What I'd do (in no particular order):

Eliminate the "welfare clause"

Sharpen the language of the 2nd amendment, to "unambiguously" assert an individual's right to own firearms.

Add an "establishment clause" to the "free speech" portion of the first amendment"

Add a privacy amendment
Make it clear that "interstate commerce" really means, and only means "interstate commerce"

Establish a (low) maximum limit on the total amount of taxes an individual may be required to pay.

Allow Congress to be in session only 2 weeks per year

That said, I agree with Ty Webb that a Constitutional Convention would most definitely be a nightmare, with individual freedoms the big loser.
posted by ZenMasterThis at 9:48 AM on November 5, 2002

However, it seems that the Founding Fathers might (MIGHT, I'm not certain and I'm on shaky ideological ground here) have left out certain things that need to be considered.

Well, they did stick an amendment process in there for that very purpose....
posted by oissubke at 9:51 AM on November 5, 2002

I know...I'm just wondering at one point an ammendment process ceases to be viable and starting from scratch makes more sense.
posted by pjgulliver at 9:59 AM on November 5, 2002

My wish list -

Corporations are not people. They do not have freedom of speech. Perhaps they have no rights at all, only privileges. Of course, the individuals running them have all the rights the constitution guarantees.

The state does not have the right to deprive a citizen of his/her life.

Clarify what war means.

Clearly state what the citizen can expect in terms of privacy.

In theory, our representitives in congress are a constitutional body and have the power to mold the document as needed. But this would require them to do what they are elected to do.
posted by pejamo at 10:20 AM on November 5, 2002

A constitutional convention is overkill. All we need is a constitutional amendment to clarify that corporations do not have the rights of individuals.

That ain't communist, it's a Democratic Republic at it's finest.
posted by jonnyp at 10:24 AM on November 5, 2002

ZenMasterThis and pejamo both gave excellent suggestions - my own would be a significant strengthening of the 10th amdendment.
posted by Ryvar at 10:26 AM on November 5, 2002

I'd scratch the interstate commerce clause and replace it with a much more limited definition. That clause has led to too much Federal interference in commerce IMHO. Reinforce the 1st and 2nd Amendments and put the 9th in much higher regard in effect limiting what sorts of laws the Congress can pass and the Executive enforce.

My main gripes with government are better handled by the judicial system setting limits on such things as corporate charters, blunting the involvement of federal crime statutes, and the like.

Having a legislative system that doesn't pass so many laws and removes old ones would help a lot too. But again neither of those will be best served by a Constitutional Convention. Might as well as try to legislate common sense.
posted by infowar at 10:28 AM on November 5, 2002

I know...I'm just wondering at one point an ammendment process ceases to be viable and starting from scratch makes more sense.

When this nation fails. So far, we've been one of the more successful, comfortable, and prosperous nations in the world. We're no utopia, but given the scale and diversity of the nation, I think our current constitution is doing remarkably well.
posted by oissubke at 10:31 AM on November 5, 2002

Clarifying the role of president and Congress in conducting war.

Setting out the rights of non-citizens--particularly those living in other countries (currently they have none).

Making the some various "fundamental rights" recognized by the Supreme Court (privacy, procreation, family autonomy, etc) explicit and clearly defining their boundaries.

Get rid of the 2nd and 11th amendments.

Broaden the commerce clause so there is no doubt that Congress is free to regulate just about anything that has any arguable effect on the national economy.
posted by boltman at 10:43 AM on November 5, 2002

Interesting how we all seem to be coming back to issues of corporate governance and federal role in the economy.

Does anyone know how other countries treat these issues? Do corporations have less rights in EU countries?
posted by pjgulliver at 10:45 AM on November 5, 2002

Constitutional amendments for the 21st century?

More language about freedom of information. The citizens should have the right to inspect any and all activities of the government; exceptions to be made only by the courts and wth strict limits as to time and scope of the exceptions. The FoI act doesn't go nearly far enough.

Also, limiting the power of government to pass laws respecting what you choose to consume. One might argue that the 9th and 10th amendments would cover this, but apparently they don't.
posted by George_Spiggott at 10:45 AM on November 5, 2002

I would also think seriously about getting rid of the jury trial requirement for civil cases.
posted by boltman at 10:48 AM on November 5, 2002

With regard to other countries, most other Constitutional democracies have far more detailed and specific rights than are found in the U.S. Constitution since they are much more modern. Italy's constitution for example, sets out a number of pretty explict social and economic rights, such as the right to work, the right to welfare, the right education, etc.

Of course, none of this really matters if these countries to not have judicial review.

And then of course there is Britain, which has no written Constitution at all. They make do on Acts of Parliament, the common law, a couple of trestises on English government and a few proclaimations by the King (e.g. the Magna Carta and the English Bill of Rights). They do pretty well under this system, but only because the ruling parties (Labour or Tory) tend to be very moderate compared with our politicians.
posted by boltman at 11:02 AM on November 5, 2002

Personally, I'd like to see the first amendment broken up into two or three separate, clearly explained amendments. A clarification on just what the heck the second amendment really means wouldn't hurt either.

In addition, I'd shuffle the numbering of the amendments, such that the 9th and 10th became the 1st and 2nd, and hopefully a bit more prominent.
posted by oissubke at 11:09 AM on November 5, 2002

Along the clear definitions of privacy, I would like to make it explicit that your image and/or likeness cannot be used without your express permission. My hope is that this would stop the hordes of television cameras that surround every event worth mentioning these days.
posted by Irontom at 11:25 AM on November 5, 2002

jonnyp: All we need is a constitutional amendment to clarify that corporations do not have the rights of individuals. That ain't communist, it's a Democratic Republic at it's finest.

I'm having a difficult time understanding this. Corporations are made of people. People own them, control them, buy and sell them, dictate their actions, buy from them, sell to them, receive their paychecks from them, et cetera. The "problem" is that when you strip a corporation of a right, you strip people of a right. What freedoms do corporations currently have that you think need to be seized from them?
posted by trharlan at 11:34 AM on November 5, 2002

Tampering with the Constitution on a regular basis = bad idea. If anything, the Constitution is *too* specific. It should be there simply to clarify some rights that, for all time, in any situation, are good things (i.e., 1st amendment freedoms).

The only thing that might be worth changing are the 9th and 10th - I'm sure everyone has noticed that they're all but unenforced in the courts. I'm not sure what rights states out to have, but they certainly don't have the rights that the 10th says they do.
posted by Kevs at 11:36 AM on November 5, 2002

trharlan: No one is suggesting stripping the people who work for corporations of any right.

Here's an example used only for clarification purposes, feel free to disagree with the content of the political conclusion I reach here, I'm just trying to demonstrate process.

Corporation XYZ is made up of four employees. Two of these employees are also own 50% of the stock each. Under current law, each of these individuals has their full rights (freedom of speech, assembly, etc.) There is a political campaign in which there is a referundum on owners vs employee rights. The two owners support a yes resolution, the two employees (who are not owners) support a no resolution. Each individual contributes financial resources to their own side of the card, each individual gets a vote. Now, under current law XYZ as an entity also has these rights. So XYZ as entity--separate from the individuals that own it--also lobbies on behalf of a Yes vote and is able to contribute its corporate resources, etc, to the Yes effort.

What I think people are proposing changing is this: take away XYZ's ability to participate as an independent actor in the political arena. The individuals who own XYZ will still have their full rights, and be able to support whatever cause they believe in AS INDIVIDUALS. But XYZ is a collection of individuals, and therefore shouldn't be able to participate in the political process as an individual.

Ummm was that clear at all?
posted by pjgulliver at 11:48 AM on November 5, 2002

I don't think that major changes (ie a rewrite or a change to a parliamentary system) are practical -- whether or not they're desirable.

As far as minor changes to -- my pet peeve about the Constitution is the ridiculous amount of power it gives to smaller states. Consequently, these states are also disproportionately the recipients of federal money. To top things off, the people in those states consistently support politicians promising to reduce taxes, despite the fact that they are overwhelmingly the beneficiaries of those taxes.
posted by Slothrup at 12:06 PM on November 5, 2002

Slothrup. I agree completely. One thing that continues to infurtiate me is the way the central and western states (with the exception of the coast) continual vote against increased taxes or increased services for urban areas despite the fact that much of the west would be uninhabitable on any large scale without massive federal largess through enormous civil works projects.
posted by pjgulliver at 12:17 PM on November 5, 2002

For now I'd be fairly content if we could enforce the Constitution we have. It's actually a pretty good one. One clear example of the government's flagrant disregard for Amendments IX and X is that it continues to perpetrate DEA raids and arrests on participants in the medical marijuana programs of States which have democratically passed laws permitting its use.
posted by George_Spiggott at 12:19 PM on November 5, 2002

George_Spiggott, don't forget that they also confiscate your property without due process.
posted by tolkhan at 1:31 PM on November 5, 2002

A Constitutional Convention today would be impossible. In order to institute any of the changes recommended by the convention, we would still need to amend the old one, since the concepts laid out in it are still in force and we can't just pretend that it's no longer there. And the bar for constitutional changes has been set intentionally high by the founders, thank God.


take away XYZ's ability to participate as an independent actor in the political arena. The individuals who own XYZ will still have their full rights, and be able to support whatever cause they believe in AS INDIVIDUALS.

What about the National Audubon Society, or your local PTA, or the Fraternal Order of Police? I don't know how you could say that GM can't support a Republican if you don't say that the UAW can't support a Democrat. Should these new limitations apply to them as well? It seems to me that denying political voices to organizations would be short-sighted and probably undemocratic. Organizations are about the only way that average people with a particular political interest will get their opinions heard on a regular basis, and if you take that away, the only people with access to politicians will be uber-rich individuals, which wouldn't change the current situation much.
posted by deadcowdan at 1:36 PM on November 5, 2002

I oppose the "Corporation as Natural Person" concept not so much because of political contributions (a hideous morass of a topic much of which falls outside the scope of this discussion) but for the simple reason that you can't jail a corporation. You can fine one, but then malfeasance becomes just another business decision, cf exploding Fords.
posted by George_Spiggott at 2:04 PM on November 5, 2002

You can fine one, but then malfeasance becomes just another business decision, cf exploding Fords.

Hear, hear! Well said. I'd really love to see this issue catch fire.
posted by pejamo at 2:31 PM on November 5, 2002

The only thing that might be worth changing are the 9th and 10th - I'm sure everyone has noticed that they're all but unenforced in the courts. I'm not sure what rights states out to have, but they certainly don't have the rights that the 10th says they do.

You're right that the 9th amendment doesn't pop up much in court decision but it's easy to see why not. To use the 9th amendment, courts would have to either use some theory of natural law or make exteremly sketchy historical generalizations about rights that have existed under common law. Both of these would be subject to wild manipulation by justices with political axes to grind. It doesn't take a very clever judge to formulate just about any government action as a violation of somebody's right. Nevertheless, you do see the 9th amendment popping up from time to time, although never as the sole justification for a decision.

The 10th amendment, on the other hand, is enjoying a bit of a renaisance in the last ten years or so. In New York v. United States (1992), the Court used the 10th amendment as the basis for its "anti-commendeering principle" which basically holds that the federal government cannot force the states to regulate something that the federal government is not willing to regulate itself. The court expanded this principle in Printz v. United States (1997) where it found a portion of the Brady bill unconsitutional because it forced state officials to perform background checks.

As far as the second part of the 10th amendment goes, it's hard to see how this could be enforced. If Congress or the President go beyond their ennumerated powers, people that are harmed can already challenge the action in court. Sometimes they even win. If the action is within Congresses ennumerated powers than it is not a right reserved to the people. I suppose one could argue that it should allow people to challenge their state governments for violating their rights, but its not clear to me how one would determine if a right was reserved to the state or the people. Also, its probable that the states never would have ratified the 10th amendment if they even dreamed that their citizens could use it to sue them.
posted by boltman at 2:45 PM on November 5, 2002

Absolutely time for a new Constitution. Seriously. But not too many people even take the idea seriously. That is one reason I read MeFi, despite the fact that most regulars are hopelessly politically correct--they can understand the idea that the Constitution is not a sacred relic, and that it probably needs to be changed.

Maybe if Ross Perot had been elected, we might have a shot at changing the Const.
But right now, I do not see any hope for the foreseeable future....
posted by bannedThrice at 6:14 PM on November 5, 2002

Kevs wrote:
Tampering with the Constitution on a regular basis = bad idea. If anything, the Constitution is *too* specific.

The vagueness is a foothold for corruption and special interests. I say make it very specific and have lots of referendums so that the Const. may be changed frequently by popular vote. And make voting mandatory.
posted by bannedThrice at 6:18 PM on November 5, 2002