Constitution Paradigm: Left Verses Right

HT: Mike P. of the Repeal the 17^th Amendment Discussion Board

Political commentator and political science professor Larry Sabato puts forward the idea of revamping the U.S Constitution. Differing from Sabato’s “progressive” leaning, Ohio State University adjunct professor Matt Mayer responds from a constitutionalist perspective. I took a mild liberty and posted them together for ease of comparing. (Please note Mr. Mayer’s comments within about the 17 Amendment)

We need a new Constitution

The nation has changed since 1787. The founding document has to catch up.

By Larry J. Sabato

October 10, 2007

The presidential candidates are offering prescriptions for everything from Iraq to healthcare, but listen closely. Their fixes are situational and incremental. Meanwhile, the underlying structural problems in American politics and government are systemic and prevent us from solving our most intractable challenges.

If we really want to make progress and achieve greater fairness as a society, it is time for elemental change. And we should start by looking at the Constitution, with the goal of holding a new Constitutional Convention.

Sound radical? If so, then the founders were radicals. They would be amazed and disappointed that after 220 years, the inheritors of their Constitution had not tried to adapt to new developments that the founders could never have anticipated in Philadelphia in 1787.

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).

The Constitution remains brilliant in its overall design and sound with respect to the Bill of Rights and the separation of powers. But there are numerous archaic provisions that inhibit constructive change and adaptation. These constitutional bits affect the daily life of the republic and every citizen in it. A few examples:

* 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.

This is an institutional reform, not a partisan attack on George W. Bush. Harry Truman on Korea and Lyndon Johnson and Richard Nixon on Vietnam were every bit as stubborn as Bush has been on Iraq. It is in the nature of the single-minded, victory-insistent presidential beast.

* 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.

* Transforming presidential elections. Americans don't have to be convinced that our presidential election system is broken. The nation needs a sensible system of rotating regional primaries so that it would no longer be subject to the selfish whims of a few states.

The electoral college also must be overhauled, with more populated states receiving additional electors so that a candidate who loses the popular vote can no longer become president. Why not abolish it entirely? The state-based electoral college isolates and simplifies recounts. Imagine how hopeless our predicament would be if the 2000 Florida recount had to be conducted nationwide.

* 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.

I have barely scratched the surface in identifying long-delayed constitutional reforms. No thoughtful person will rush to change the Constitution, and it will take many years of work. But let the debate begin, and let us start the process that will lead to a 21st century Constitutional Convention.

Larry J. Sabato is the author of "A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country." He directs the Center for Politics at the University of Virginia.

Larry Sabato Doesn’t Understand the Constitution
By Matt Mayer
Friday, October 19, 2007

In an opinion piece in the Los Angeles Times on October 10, 2007, University of Virginia Professor Larry Sabato argues for scrapping our Constitution and replacing it with a new one. He couldn’t be more wrong.

In support of his call to redo the Constitution, Sabato trots out a quote from Thomas Jefferson positing that a constitution is only good for nineteen years. The quote comes from a letter Jefferson sent to James Madison on September 6, 1789. In his response, Madison raised several fundamental flaws to Jefferson’s (and Sabato’s) reasoning. The one most applicable to our times is this one: “Would not such a periodical revision engender pernicious factions that might not otherwise come into existence, and agitate the public mind more frequently and more violently than might be expedient?” Does Sabato really believe that in 50-50 America, we would have any chance at compromising on a new constitution? After all, each side will try to inject its own solution to the “intractable challenges” that Sabato laments.

Even if we could, does Sabato really think we should throw-out the Constitution every nineteen years? If not, why rely upon Jefferson’s quote other than to get the kind of constitution he and the liberal-progressives would prefer? While Sabato only wants to change a few provisions, others will aim to change the parts Sabato thinks are okay. Such a process would wreak havoc on one of the strongest aspects of our Republic – the predictability and stability surrounding our rule of law (not to mention treaties). With the rule of law susceptible to changes every nineteen years, there would be little basis for investors to trust our financial markets, for people to feel secure in their property, and, most critically, for the people to feel secure in their rights. Jefferson was one of our greatest Founding Fathers and a brilliant man, but let us not forget that he was still only a man – susceptible like all of us to bad ideas.

The four “horribles” that Sabato cites as reasons we need to ditch the Constitution are largely baseless. First, Sabato calls for the need to restore “the war powers balance.” Under the Constitution, the crisis for which Sabato seeks to undo 220 years of history can be dealt with quite simply – the Congress has the power of the purse so can refuse to fund a war it has not authorized, which would force the Commander in Chief to end the war. Now, that would take courage, which most politicians today lack, but an absence of political courage should never be the reason we undo the foundation of our country.

Next, Sabato wants to end the “second-class citizenship” that he thinks exists because the Constitution requires the President to be a natural born American. At our current population count of 300 million, given that there are four former or current presidents still alive and roughly twenty more elections until the youngest alive today would presumably be dead, at best, twenty-four Americans out of 300 million will become President. It is such a small fraction that it isn’t worth noting what the odds of becoming President are for anyone alive today. The point is that it really isn’t that big of a deal and certainly is an enormous overstatement to say that the Constitution creates two tiers of citizenship based on odds worse than playing the lottery.

Then, Sabato raises the bogeyman of the Electoral College to argue for giving larger states even more electors “so that a candidate who loses the popular vote can no longer become president.” Factually, out of the fifty-five elections we have had since 1789, only on three occasions (1876, 1888, and 2000) has the winner of the Electoral College not also been the winner of the popular vote, which means it has happened in less than 6% of our presidential elections and only once in the last 120 years. That certainly doesn’t qualify as a crisis.

Sabato’s fictional crisis also fails to understand the purpose served by the Electoral College. When the Founding Fathers constructed our system of government, they carefully inserted many checks and balances against factions. Because America is a republic, not a direct democracy, the Founding Fathers sought to ensure that the elected federal government represented the various interests outside of Washington. The House of Representatives, being popularly elected by the people, served to protect the interests of the people within their congressional districts, and districts were allotted to states by population totals. The Founding Fathers felt that the small house districts would serve as a check on the ability of local factions to gain control of the levers of the federal government to enact bad laws or oppress opponents.

In contrast to the House of Representatives, the Senate was made-up of two senators from every state who were elected by the state legislatures. The senators’ primary role was to represent the interests of their states (which might, at times, be in conflict with the majority of people of the states). The fundamental reason why senators were elected by state legislatures was because that process guaranteed that the senators would fight in Washington for the interests of the states (more on that later). The equality of representation among the states served as a check so that larger states could not exert undue influence over the smaller states (which could be done in the house due to the allocation of seats by population).

The President was elected in a manner that gave both the people and the states a role in his election and he served to represent America writ large (both the people in America and the states that make-up America). Specifically, the people vote for electors in each state who are then certified by the state to support the candidate who received the most votes in the Electoral College process. This dual representation means that there will be times, rare as they have been, where the majority interest of the states overrides the majority interest of the people in order to further weaken the ability of a faction to control the Presidency. The last thing we need to do is further disenfranchise the states by totaling removing them from having any say in any of the elected federal branches.

Finally, Sabato raises what I think is the most significant issue in America today given the impact it has on our system of government; namely, that the Senate is not a very representative body. Sabato is right, but for the wrong reason. The Senate does not represent the interest it was designed to represent – the interest of the states. With the passage of the 17th Amendment in 1913 during the Progressive Era, senators were elected popularly by the people, which disconnected them from being accountable to state legislatures. Not surprisingly, both the era of unfunded mandates and the massive expansion of the federal government during the New Deal and the Great Society Eras began soon thereafter – especially given that the passage of the federal income tax under the 16th Amendment in the same year provided for the means to fund the activities of the expanding federal government.

When states lost their check to rein in recalcitrant senators who voted for legislation that would grow federal power at the expense of state power or for legislation that would pose an unfunded mandate on the states, senators could support legislation that proved popular despite the short or long-term consequences of the legislation on the states. A recent example is the passage of the Real ID Act that requires states to add federal requirements to their driver’s license without receiving federal funds to adopt those requirements. Estimates put the price tag of the Real ID Act for states at over $11 billion.

In order to return to the constitutional structure wisely put in place by the Founding Fathers so that states have a voice and a check on Washington’s zeal for power, instead of scrapping the whole Constitution, we should repeal the 17th Amendment. The advantages of such a change are numerous. First, and most critically, it will revive our federalist system. Given the fact that over the last thirty-five years, several efforts were made to shrink the size of the federal government and all of those efforts failed, the principle of federalism appears mortally wounded. When senators are once again elected by state legislatures, the states will have a powerful check on the ability of Washington to expand its power and levy unfunded mandates on the states.

Next, such a move will place a far greater emphasis on which party controls the state legislature, thereby elevating the importance of state and local political races. This change will create a strong incentive for greater accountability to the voters. Such a change also will create more of an incentive for state and local governments to integrate statewide on activities and initiatives so that their senators can represent more effectively their interests in Washington. In a post-9/11 environment, such regional collaboration attains a higher level of urgency.

Most critically, with the states able to move power out of Washington, the creative vibrancy in Justice Louis Brandeis’ “laboratories of democracy” will compete to solve the “intractable challenges” in America today. After all, it wasn’t Washington that first reformed welfare; it was Wisconsin. It wasn’t Washington that first reformed education; it was Florida. It wasn’t Washington that first reformed health care; it was Massachusetts. Americans rightfully identify that Washington’s power over their lives is too pervasive. A Democracy Corps poll reports that 57% of Americans believe that government makes it harder for them to get ahead and 83% believe that if government has more money it will waste it. If we just get the power out of Washington, which is not possible without giving the states back their check on Washington, then the states will solve our tough issues.

Contrary to Sabato’s view, we don’t need a new constitution. History itself has demonstrated that a constitution can survive well beyond Jefferson’s nineteen-year limit. Just as the Progressives argued for a living constitution that they could interpret “according to the Darwinian principle," those who seek to throw-out the Constitution today believe that the Constitution prevents their kind of “progress” from happening. Good. That is just what the Founding Fathers intended, and Larry Sabato knows it.

Matt A. Mayer, President & CEO of Provisum Strategies LLC and International Studies Adjunct Professor at The Ohio State University, is a Claremont Institute Lincoln Fellow.

Comment: From my perspective the commentaries present the great divide, and this is the single greatest problem we have in our whole ideological debate. We on the right see the U.S. Constitution as a corner stone that should only be modified under serious consideration, while the left seeks to modify as needed at the moment. We see greater diffusion of power, they see greater consolidation. They see more influence given by the population directly; we fear the popular swings in opinion that are driven by emotion rather than cautious reason.

However, there is hope in that Sabato acknowledges the power to make war has steadily grown in the Office of the President. Through the wisdom of the founding fathers, and of late because of Rep. Ron Paul, people are waking up to this growing realization. However Sabaot lacks the consistency of thought that the original U.S. Constitution had, in that diffusion of power was mandated across the board and to the states over the national government, not just to soley to war making.

To anyone that is libertarian and conservative minded, a supporter of the FairTax, desires the repeal of the 16th and 17th Amendments, and those wanting to reduce the size of the federal government must know that the paradigms that separate us and those on the left are great. It is only through earnest debate and a renewed understanding of our history that we will have a chance of illustrating our beliefs. But it has to start in the classrooms and with the young.

Unfortunately, we have almost three generations, not counting the World War II Depression generation that has become entrenched with "socialistic" beliefs and norms. It will only be until these generations are no longer able to vote that we will have solid hope for the restoration of our culture and government. But until then we must educate our young and spread the word through them; they have to be the change agents guided by the rational hand.

And one final thought to all my Republican acquaintances; look beyond Ron Paul the man, and look at his message. I know that most of you will agree with 90 percent of his message. Please take that knowledge and apply it to your life and to your supported candidate and ask yourself, “does my life as our government now controls it, comport with Ron Paul and the founders visions; and does my candidate comport with the same.” If it does then you are on track, but if it doesn’t and you believe our present situation in this country certainly doesn’t comport with the founder’s vision, then you should support Ron Paul for President. I think you would be hard pressed to find anyone other than Ron Paul that comports with the founders. Give it some thought.