Wednesday, January 23, 2013


Interesting discussion at lunch about amending the U.S. Constitution.

My analogy divides people vertically. Horizontal division uses those awful words, left, right and middle.

I describe a house. You’ve got the folks in the basement and those on the roof, but most of the people are in the first or second floor.

In the basement are those who revere the constitution as a divinely inspired document, written once for all times. They abhor the idea of amending the constitution. They say that whatever is wrong in American government stems from the simple fact that the politicians don’t keep their oaths to support the constitution.

To them, there is no better way to do things than the design drafted in 1787.

Up on the roof are the cynics who insist that the constitution is archaic, outmoded and caput. Leader of the pack is Professor Louis Seidman of Georgetown Law Center, who recently opined in the New York Times that we really don’t have a written constitution.

All we have are traditions and practices.

In effect, he says that whatever government does is constitutional. The document in the National Archives is just a relic to him and the rest of the rooftoppers.

Upstairs on the second floor is a very large segment of the population, which includes most of the national media and the vast majority of academia. They hold that the constitution remains what it says it is: the supreme law of the land.

But they tend to agree with Charles Evans Hughes’ blunt assertion in 1907 that, “the constitution is what the Supreme Court says it is.” Most of those on the second floor would endorse Felix Frankfurter’s dictum, “The Supreme Court IS the constitution.”

These folks are quick to admit that there is much in the constitution which is outdated, and that much needs to be added, but they do not trust the people to speak to those issues.

They prefer amendment by interpretation. And interpretation of interpretation, until constitutional ‘doctrine’ has superseded the document itself.

On the ground floor of my analogy we find another large body of citizens. These are the traditionalists who insist that the constitution is indeed the supreme law of the land, just as George Washington intended when he insisted that the words of the constitution are binding and obligatory until changed “by the explicit and authentic act of the whole people.”

Most first floor folks insist that they respect and support the entire constitution. That includes Article V which provides the means of amending the original charter.

At all four levels, there is a lot of discontent with the way things are in Washington, and there are a number of kitchen table constitutional amendments floating around on the Internet, which purport to offer quick fixes to whatever ails the feds.

Unhappily, few if any of them have any stomach for cooperating with each other. Most proponents of constitutional amendment are leery of any proposal except their own.

As a result, there are many voices raised against the convening of an Article V amendatory convention.

Their concerns are best summarized by my friend Jim, who thinks the constitution should be amended, but the process shouldn’t be too easy.

I did a little research on what it takes. The thirteen smallest states, with less than four percent of the population can block the ratification of a constitutional amendment. Conversely, the 38 smallest states, with only 41 percent of the population can effectively ratify an amendment.

Of course, population is not always just a question of numbers. Density counts. No doubt the citizens of Delaware, Rhode Island and New Hampshire have more in common with New York and California than they do with Wyoming and Alaska.

Still, even when grouped by density, the thirteen least populated states comprise a mere six percent of the nation and the thirty-eight most sparsely inhabited states together represent about fifty-five percent of the nation.

Bottom line: amendment isn’t easy. It requires a national consensus.

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