Sunday, November 30, 2014

Faint hope for a better American Constitution

kw: book reviews, nonfiction, constitution, law, amendments

I have just finished reading the Constitution of the United States, and all 27 Amendments. It didn't take long; in the Octavo volume I was reading the main text comprises just over 16 pages and the amendments 13. Less than 30 pages in length, it remains the best Constitution so far devised for any nation. Yet no matter how good it may be, the existence of Amendments shows that as times change, the process of constituting "a more perfect union" is ongoing.

Consider Amendment XII, which provides that Electors shall vote separately for President and Vice-President. Following the original prescription in Article II, when the votes of the electors were counted, the person with the most votes became President, and second place was awarded the Vice-Presidency. This practically ensured that the chief executive and his second-in-command would be bitter political foes. After 1804, the POTUS and the VEEP have at least had some chance of having similar political views. But imagine the outcome of recent elections had the amendment never been proposed or ratified: President Clinton and Vice-President George H.W. Bush, or President George W. Bush and Vice-President Al Gore!

The authors of the original Constitution kicked a few problems into the future, slavery and universal suffrage among them. They were also perhaps a bit idealistic, and didn't foresee how human nature would distort the application of constitutional law. I suspect they never dreamed an "activist court" would arrogate the right of "Judicial Review", to determine what is and what is not "constitutional". One way and another, times continue to change, though people do not, so after the Bill of Rights, a new Amendment has been adopted about every decade or so.

In a new book, Retired Justice John Paul Stevens proposes six. The book is titled Six Amendments: How and Why We Should Change the Constitution. Justice Stevens served just under 25 years, or 11% of the time that the Supreme Court has existed, and as a Circuit Court Justice for some years before that. He believes that time has outpaced a couple of the Amendments, and that distortions in the political process have resulted, necessitating new Amendments beyond the repeal or rewording of those two.

I don't presume to understand everything I have read in the book, so I'll just comment on a few items. Firstly, Gerrymandering. Hardly anyone knows what this is any more except those who practice it, which leads to rather amazing contortions of district maps whenever they are re-drawn, usually following a Census. Take a look at what the Texas legislature wrought following the 1990 Census:

This was Texas District 30 from 1991-96. It gathered a great many Democrats into it, which raised Republicans to a majority in several surrounding Districts. The current district map of several states also show troubling levels of "non-compactness" in districts, which can result in, for example, a state in which 52% of the electorate votes Democratic having Democrats holding 66% of the seats in the state legislatures.

The key words in Justice Stevens's proposed amendment are "compact" and "contiguous". The District shown is probably contiguous, but it certainly isn't compact. However, the word "compact" needs defining. I propose the following: The area comprising a compact district shall comprise 80% or more of the area of the tightest-fitting convex polygon that wholly encompasses it.

Basically, wrap a string around the shape and measure its area, then the area of the proposed district. The district shown would only fill about 30% of an encompassing polygon.

Secondly, he proposes abolishing the Death Penalty via an Amendment that adds five words to Amendment VIII so that it reads
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted. (my emphasis)
I have long favored capital punishment as the only certain means of ensuring that certain persons convicted of the most heinous crimes could never repeat their offense, nor any other. The Justice's arguments have convinced me otherwise. Most states now have laws imposing imprisonment without possibility of parole for those crimes. Though a capital offender very rarely escapes, technology is making this less and less likely. Life without parole accomplishes two things:
  1. The incredible cost of the death sentence appeal process would be much reduced (though LWOP appeals might grow to fill the gap), and
  2. As time passes, new evidence or new technology will lead to certain convicts being exonerated and, equally likely, certain others becoming even more clearly guilty. The latter case might also foreclose certain lengthy appeals.
Finally, I am only partly in agreement with Justice Stevens in his proposal to amend Amendment II. His proposal is to add five words, so that it reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed. (his emphasis)
I think he is right that the NRA in particular ignores the first clause of Amendment II. This is why he would add the five words, to tie the two clauses together in the way he believes the Authors understood it. However, I also understand the principle, "If it is a crime to own a gun, only criminals will have them." It's a little hard to get the American firearms toothpaste back in the tube.

It has been said, "The reason for the Second Amendment is in case the government does not keep the First Amendment." Seriously? Tell that to the Branch Davidians, or the folks at Ruby Ridge. No, the "reason" was the expectation of invasion by Britain, which happened in 1812, and the memory of the Revolutionary War which was very, very living memory to those writing the Amendment. There was no standing army, though the Constitution provides for one. There was only the Militia, and all men were expected to be ready to serve at a moment's notice.

From time to time there is a protest by NRA members against proposed legislation or regulation regarding firearms. The ragtag, motley bunch that typically shows up at such events would be laughed out of any real militia. They give a bad name to the NRA. I certainly hope that the majority of loyal, patriotic members of the NRA are as deeply ashamed of those antics as I am. Such dern fool protesters are the kind who say, "You'll have to pry my gun out of my cold, dead fingers." Americans who honor the law silently reply, "That's a challenge we'll accept when needed."

Is there any serious chance for Justice Stevens's six proposals being adopted? I think not. America is no longer the Land of the Free but the Realm of the Rich, and there is too much money to be lost by powerful entities should even one of the six be enacted. Were I king of the country, here are a few Amendments, even less likely to be enacted, that I believe would be equally salutary to the American commonweal and her political health:

  • Congress shall pass no law exempting its Members from liability to obey any statute of the Federal Government or any State.
  • Corporations are not Persons in any political sense. Only persons who can vote have the right to donate to political campaigns either for a candidate or in favor of any ballot issue.
  • No member of the Senate or the House of Representatives shall be entitled to vote upon any measure who has not read the document in its entirety and is able to orally present a summary of its salient arguments upon demand by any constituent.
  • [Line Item Veto] Any measure passed by both the Senate and the House of Representatives, presented to the President, shall be written in the form of clauses not to exceed one page in length each. Each clause is to be signed separately, and any clause not so signed is to be deemed Vetoed.
I think the good Justice might be halfway favorable to at least one or two of these. Anyone else?

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