U.S. Constitution Dying of Neglect

October 29, 2012

While Michiganders are fortunate to live in a state not considered a “battleground” by either of the presidential campaigns, thus sparing us the onslaught of obnoxious TV ads, we are, however, being bombarded by commercials by those both for and against six different ballot proposals.  Of these six proposals, five are proposed amendments to the state constitution. 

It got me wondering just how typical or unusual this might be, so I did a little research.  I was surprised by just how dynamic a document the Michigan state constitution really is.  The Michigan constitution was first adopted in 1835.  Included in that constitution was a provision that every sixteen years there be placed on the ballot a proposal calling for a state constitutional convention.  As a result, since that original constitution in 1835, there have been five additional constitutional conventions in Michigan.  On three occasions – most recently in 1963 – the new constitutions that came out of those conventions were approved by the people.  Two were rejected.  The ballot proposals that call for such conventions have failed twelve times, most recently in 2010. 

Most ballot proposals to amend the state constitution fail.  But, since the last Michigan constitution was adopted in 1963, there have been 28 amendments.  Seventeen of these were citizen initiatives placed on the ballot by a petition process.

Now, let’s contrast that to the U.S. constitution.  The last (and only) consitutional convention was in Philadelphia in 1787 – 225 years ago.  That convention was called only six years after ratification of the original Articles of Confederation in 1781, which soon proved unworkable.  The one and only big revision to the Constitution occurred only 4 years later in 1791 with the enactment of the Bill of Rights – the first ten amendments.  Since then, in the last 221 years, there have been only 17 additional amendments.  One of these, the 21st, repealed the 18th, which enacted prohibition.  (Michigan was the first state to ratify this amendment!)  As a result, only 15 amendments enacted since 1791 remain in effect.  In the past 50 years, only 4 amendments have been enacted.  The most recent, the 27th amendment, preventing congressional pay raises from taking effect until the next session of Congress, was enacted in 1992.  That one took a while.  It was first proposed in 1789.

Article V of the constitution defines the process for amending it.  It can be done in one of two ways:  (1) A proposed amendment must first pass in both houses of congress by a two thirds majority before being submitted to the states for ratification.  To be ratified, it must be approved by three-fourths of the states.  The founding fathers didn’t want to make it nearly impossible for a proposed amendment to pass by requiring unanimous approval.  At that time, three-fourths of the states meant that nine states had to approve the amendment.  I wonder if they’d still require three-fourths of the states today, or would they lower that bar to maybe two-thirds,  now that a proposed amendment must be approved by 38 states?  (2) Or, two thirds of the states can demand that Congress call a constitutional convention to propose an amendment, to then be ratified by three-fourths of the states.  The latter procedure has never been used. 

As a result of this procedure, it’s very difficult to amend the constitution.  But it can happen pretty fast, especially if the people are angry enough.  The amendment that was proposed and ratified most quickly was the 26th, which lowered the voting age to 18. In 1965, relatively early in the U.S. involvement in Vietnam, Barry McGuire recorded Eve of Destruction, the first anti-war song.  It included the lyrics:

You’re old enough to kill, but not for votin’
You don’t believe in war, but what’s that gun you’re totin’?

As the war raged on for years, as casualties mounted (most of them below the current voting age of 21), and as anti-war sentiment grew, these lyrics became a rallying cry.  In March of 1971, Congress proposed the 26th amendment to lower the voting age to 18.  It only took a little more than three months for it to be ratified by the states.

Our founding fathers acknowledged their own shortcomings when it came to drafting a constitution and were eager to revise it as dictated by circumstances.  It only took them six years to recognize that their original document, the Articles of Confederation, were woefully inadequate.  Then it only took them four years to admit that the new Constitution needed serious amending with the Bill of Rights.  Three years later they added the 11th amendment, laying the foundation for sovereign immunity.  Ten years after that, the 12th amendment was ratified, revising presidential election procedures.  The 13th amendment, which abolished slavery, wasn’t enacted until 61 years later in 1865.   Since then there have been amendments to establish the federal income tax and to give women the right to vote, among the more significant amendments.

It’s not that lawmakers haven’t tried to update the constitution more frequently.  There have been over 11,000 proposals for amendments that have failed to be passed by Congress, including balanced budget amendments, an amendment that would limit constitutional protections to natural persons and not corporations, a human life amendment, an amendment that would grant citizenship only to babies born in the U.S. with at least one parent who is a citizen, and many others. 

An amendment that has never even been proposed is one that we need perhaps more desperately than any of the others – the 28th Amendment proposed on this web site – prohibiting the U.S. from running a trade deficit and from being a member of any international organization that does not recognize America’s fundamental and sovereign right to manage trade in its own best self-interest, including the use of tariffs. 

Many of these amendments, especially the one I’ve mentioned above, are desperately needed.  Without them, the United States is headed for economic ruin.  Like nearly all states, the state of Michigan maintains a balanced budget because the legislature is forced to do so by Michigan’s constitution.  It gives the legislators the “cover” they need to defend their actions to their constituents.  Everyone knows that they have to make tough compromises to comply with the constitutional requirement. 

Not so in Congress.  The days when congressmen and senators would work together and compromise in the best interest of the common good are long past.  Lobbying is too intense, as is the scrutiny of special interest groups who can distort every vote to make the congressman or senator appear to be the worst villain since Hitler.  Without the driving force of a constitutional requirement to make tough decisions, nothing will ever be accomplished in Congress.   Unfortunately, it has become impossible for any proposed amendment to be passed by Congress for all the same reasons.  It’s impossible to ever again get a two thirds majority to agree on anything.  Consequently, our badly outdated constitution and the nation itself is dying of neglect.

Multi-national corporations have hijacked our government because the constitution doesn’t more clearly define what it means by “the people” and makes no distinction between “freedom of speech” and advertising space in print and on air that is sold to the highest bidder for the purpose of spreading propaganda containing distortions and outright lies.  (It seems inconceivable that the amendment regarding free speech pre-dates the invention of the telegraph, radio, television and the internet and hasn’t been clarified since.)  The federal government has bankrupted the nation because there are no constitutional requirements to maintain a balance of trade and a balanced budget.  The founding fathers could never conceive that we’d be so foolish and would be horrified at what’s happening. 

A hopeless situation?  Probably.  Unlike in 1971, when lawmakers responded to a tidal wave of anger as their constituents watched their sons die in a war over which they had no say at all, no amount of voter anger is sufficient to sway lawmakers from doing the bidding of their multi-national benefactors. 

But there may be a tiny crack through which “the people” – real people – can still have an impact.  Buried in the first amendment amid the freedoms of speech and religion is a lesser-known right:  the right to petition the government.  Unfortunately, the supreme court has even blunted that right by ruling that, while the people have a right to petition, the government has no obligation to respond.  Nevertheless, there is one petition to which the federal government must respond – a demand by two thirds of the states to call a constitutional convention to propose an amendment.  While it now seems impossible to get an amendment approved by Congress for possible ratification by the states, the other method spelled out by the constitution for making amendments which has never been used may be our best hope.  How could that ever happen – two thirds of the states calling for a convention?  It could happen if the people of those states, through the petition process, got measures on the ballots that would require their states to make such a demand.  It’s something I’m going to look into for the state of Michigan.  Can an issue be placed on the ballot that would require Michigan to call for a constitutional convention for the purpose of proposing the “28th amendment?” 

I imagine that it would be very, very easy – especially here in Michigan – to get enough signatures on a petition to place that issue on the ballot.  Imagine the possibilities if word of such a move in Michigan spread to other states.  Hey, I know it’s the longest of all long shots, but it’s something worth looking into.  I’ll let you know what I find.