Douglas Cohn: Upgrading the Constitution is harder than it seems

Syndicated columnist

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WASHINGTON — Is it time to significantly amend the U.S. Constitution? Upgrade the Constitution? Rewrite the Constitution.

After all, it was written more than 200 years ago before the advent of cars, planes, miracle medicines, electricity, atomic energy, sophisticated financial markets, the Internet, racial and gender equality, a yawning gap between small-state-big-state populations, etc. Even Thomas Jefferson thought it ought to be rewritten every 20 years because he believed each generation should make its own rules, a thought that was as extreme as it was indicative of life expectancies.

Interestingly, most, if not all, of the constitutions around the world are based upon the U.S. Constitution, and most of them have gone through several iterations, whereas ours has only been amended 27 times, and 10 of those – the Bill of Rights — were added at the outset. Another — the 21st Amendment — was primarily passed to repeal the 18th Amendment that had unsuccessfully experimented with Prohibition. So, not counting those 12 amendments, there have only been 15 alterations to the Constitution in 227 years, and only one of them in the last 43 years — the 27th Amendment concerning congressional compensation that was proposed in 1789. The only rewrite of the U.S. Constitution came in 1861 with the Confederate Constitution that provided for a one-term, six-year presidency and the line-item veto.

Now, Retired Associate Justice of the Supreme Court John Paul Stevens has written a book, “Six Amendments: How and Why We Should Change the Constitution”. Yet, rather than a formula for change, the book is a recipe for dissension, an example of how difficult it will be to bring the law of the land into the 21st Century.

Justice Stevens’ proposed amendments:

• Add “and other public officials” to Article VI’s Supremacy Clause as a means of requiring state and local officials to enforce federal laws.

• To counteract the evils of gerrymandering he would add, “Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory ...”’

• He addresses campaign finance issues by allowing the imposition of “reasonable limits on the amount of money” that candidates and their supporters can spend in an “election campaign.”

• He would limit the concept of sovereign immunity by making states and state officers liable for “violating any act of Congress, or any provision of this Constitution.”

• He would end the death penalty.

• He would amend the Second Amendment by limiting the right to bear arms to those people “serving in the Militia ...” He argues that states would still be free to establish their own gun laws.

• Clearly, some of his proposals are controversial, and by any standard they are insufficient. The Founding Fathers never dreamed that population disparities would create a situation where California would have 53 House members, while Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming would each have one, and Hawaii, Idaho, Maine, New Hampshire, and Rhode Island would each have two. Further, who among them would have dreamed that those 12 small states would have 24 senators to California’s two even though their combined populations equal less than 25 percent of California’s population. The idea of the Senate was to give equal representation to small states, but it could be surmised that California would never ratify such a constitution today. The Founders would most likely have broken up the largest states and combined several smaller states.

• The Founders never envisioned that Article I, section 5 of the Constitution would spawn the filibuster or empower congressional leaders to prevent votes on bills presented by members of Congress.

• The Founders soon realized that the First Amendment allowed for a great deal of inflammatory speech, but they never envisioned an Internet that would allow anonymous libeling.

• And the Founders could not have anticipated phone taps. There were no phones. Nor could they have predicted the need for a Patriot Act that would infringe on personal liberty to protect the nation from terrorists.

• These and much more are the problems a new Constitutional Convention would struggle to solve, problems that greatly exceed what Justice Stevens has proposed.

U.S. News Syndicate, Inc.

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