Introduction:
Our Constitution establishes the basic form and function of our Federal Government as well as enshrines certain rights possessed by the People. While the original Constitution and the Bill of Rights were great documents, they were not perfect. We have, from time to time, seen fit to amend the Constitution to facilitate more efficient and fair governance as well as define new rights.
The Constitution is indeed a living document. The Framers wrote into the Constitution a mechanism for subsequent generations to change the document in accord with any needs that might arise. Under Article V, there are two ways the Constitution may be amended.
First, the Congress of the United States may propose amendments which must be ratified by three fourths of the States. Second, the legislatures of two thirds of the States may call for a constitutional convention to propose amendments which must be ratified by three fourths of the States.
It is no accident that the Framers included a way to amend the Constitution that does not require Congress. The Framers anticipated that a time might come when the People of the United States might choose to amend the Constitution despite the reluctance of those in power.
The American systems of politics and governance are broken. If we continue down this path, all that we value may come to ruin. For the sake of our nation and our people, we must make changes. The time has come for the people of the United States to call for a new constitutional convention.
I. The Business of Politics:
The elected officials of our Federal Government are more concerned with the game of politics than they are with the efficient and effective governance of our country. Getting re-elected is the top priority. They spend the majority of their time trying to out maneuver the other party and serving special interests.
a. Term Limits
Members of Congress should be subject to term limits. While some argue that a long-time Member of Congress develops a certain level of expertise that helps them serve their constituents better, it seems that their extended tenure just gets them deeper into bed with special interests. A limited tenure for Members of Congress will shift their focus from playing the re-election game to the real reason they have been elected, serving the people of this country. Further, the people should have the power to recall any Member of Congress that fails to serve the interests of the people.
Although Congress has drafted amendments that would set term-limits, none have made it through Congress to be considered by the states. It is not surprising that a group of people that place their own interests above all else would fail to send the states an amendment that would limit their own tenure. Therefore, it is left to the people to demand term limits. See Proposed Amendment A.
b. Campaign Finance Reform
Politics and money are inextricably linked. Money is not only used to support candidates but also to buy influence. It would be unrealistic to expect money to drop out of the political game. However, we should expect and demand full disclosure of how money is influencing our politics.
Money is not only given to candidates directly but it is also funneled through the political parties, political action committees, 501(c)(4)s, and other entities that act to obscure the influence of money on politics.
Prior attempts to limit the influence of soft-money and anonymous contributions on politics have largely met with failure. Our aim should be to stop big moneyed interests from playing a shell game with their contributions and influence. Individuals and political organizations should be able to support politicians and policies, but in a way that is open and honest. A constitutional amendment is needed to address these issues. See Proposed Amendment B.
c. Corporate Speech
Treatment of corporations as persons under the First Amendment is absurd. Although it is common for the law to treat corporations and other organizations as “persons,” it flies in the face of common sense that a fictional entity should have exactly the same rights as a natural people.
A recent attempt to restrict the influence of corporate money on politics met with failure when the Supreme Court decided that such contributions fall under the protections of the First Amendment’s free speech clause. The only certain way to limit the influence of corporations and other non-natural persons is to amend the Constitution. See Proposed Amendment C.
II. The Business of Government:
There is an unhealthy blurring of the line between government regulators and the industries being regulated. It is common practice for government officials to take jobs in the very industry that they have been charged with regulating (ex. The F.C.C. Commissioner, Meredith Attwell Baker, who accepted a position at Comcast months after approving a controversial merger between Comcast and NBC Universal).
It is also common for members of industry to work for the government as regulators of the industry for which they had been working. (ex. United States Secretary of the Treasury, Henry Paulson, who was formerly CEO of Goldman Sachs, the largest beneficiary of the AIG bailout)
While it is unclear if the specific relationships described above resulted in inappropriate or unethical behavior, it is clear that the potential for abuse is great. However, we might be remiss to entirely exclude these people from governance as they possess an expertise that could be of value to our country.
In instances where the individual has been working as a regulator, they should be temporarily prohibited from working for any corporation or organization that they have directly regulated. This kind of rule would directly prohibit the kind of behavior seen in the F.C.C./ Comcast NBC Universal situation.
For situations where the person is moving from an industry to the agency responsible for regulating that industry, they should be prohibited from occupying a decision making position. They should be limited to positions where they can offer advice to the decision makers. After all, their value to the government is in their expertise, not their decision-making ability. See Proposed Amendment D.
III. The Operation of Government:
The shortcomings of elected officials are frequently addressed by the media, other politicians and various watchdogs. Much less publicized are the shortcomings of the bureaucracy. The federal bureaucracy is sprawling and often inefficient. However, there are definite ways that the effectiveness and efficiency of the bureaucracy can be improved. The bureaucracy has many talented employees, but it is also choked by employment problems.
The Fifth Amendment prohibits the Federal Government from depriving any person of life, liberty, or property without due process of law. The Supreme Court decided that a person’s employment by the government constitutes a property interest that cannot be deprived without due process of law. That ruling means that the government may not fire an employee without providing “process.” The States are similarly restricted under the Fourteenth Amendment.
The Federal Government has subsequently promulgated volumes of statutes and regulations to ensure that employees are given constitutional process. The process governing removal of personnel is so elaborate that there can be four or more levels of review. These numerous levels of review create an environment where agencies often choose to ignore unproductive employees rather than remove them.
It is common practice for federal agencies to circumvent the complexities of the federal personnel system by contracting with private companies for employees. Effectively, the government pays private companies to staff projects that would otherwise be done by its own employees. To stop this practice it would require the government and its own employees to operate with greater efficiency.
One way to achieve greater efficacy would be to untie the hands of the federal agencies and allow them to hire and maintain a more competent work force. The Constitution should be amended to make it clear that employment by the government is not a property right and that constitutional due process is not required to fire an employee. Of course, the government may grant whatever protections it sees fit for its employees, but it should not be required to make every firing a constitutional matter. See Proposed Amendment E.
IV. Outdated Laws and Entrenched Interests:
The American legal system is a morass of overly complicated, biased, and outdated laws and regulations. Some laws persist on the books that formerly made sense, but no longer serve the greater public good. Many other laws are passed to benefit corporations and other special interests groups with money enough to lobby for special treatment under the law.
Members of Congress utilize riders and earmarks to serve lobbyists and other special interests. They attach provisions that benefit special interests to other, more important, bills so that they are passed by both houses and will not be vetoed by the President.
For a while, there was a call for the President to have a line-item veto which would allow the President to block any new attempts by Members of Congress to piggyback their special-interest porkbarelling on respectable legislation. Although such a presidential power would be somewhat helpful, it would do nothing for all of the bad laws already on the books.
Of course, it would also be possible for Congress itself to address these issues. Congress could stop its current behavior and pass bills that would repeal the overly complex, biased and anachronistic laws already on the books. Expecting this solution from Congress is unrealistic.
What is needed is a democratic body with the power to address both past and present shortcomings in the law. A counteractive legislature is what is necessary to address the problems endemic to our system. A counteractive legislature would have only one power, the power to nullify statutes passed by Congress.
The counteractive legislature would be a temporary institution with the sole task of cleansing our legal system of biased and anachronistic laws. It would be able to immediately nullify or establish a sunset period for any law passed by Congress. The President would act as a check on the counteractive legislature by veto in the same way that he is a check on Congress. In addition, the states would also act as a check on the counteractive legislature as they would be able to disband the body if it ceases to be effective. See Proposed Amendment F.
V. The American People:
The diversity of the American people is a duel edged sword. At times, our diversity has tempered us for greatness and at others it has be corrosive. It would be an abominable shame to lose the strength that our diversity provides us. However, we should work at mollifying the divisiveness in our country. We need to understand that regardless of our backgrounds and opinions, we are all in this together. What we share in common is fundamental.
At times, we are divided by region, religion, race, gender, affluence and politics, but underneath it all we all value the same things – prosperity, security, and freedom. Your prosperity and freedom will only be secure if you stand shoulder to shoulder with all of your American brothers and sisters, including those with whom you disagree. Our values are meaningless unless we embrace what we share in common despite our differences.
To promote and defend our common values, a civilian corps should be instituted. The Federal Government should establish a civilian corps that all citizens must join at the age of 18 for service lasting two years. The civilian corps will be responsible for instilling the virtues of civic responsibility, community and discipline.
The corps will promote civic responsibility through a curriculum focused on how our government works and our rights and responsibilities as citizens. Far too many Americans do not really understand our government and their role within the system. An informed citizenry will be a more involved and less easily led astray.
The corps will instill a sense of community in more than one way. First, the divisions of the corps would be organized to ensure exposure of its members to people from all walks of life. It is far too common for Americans to live in bubbles surrounded by people very much like themselves. This only leads to thinking of people from other backgrounds as “others” and not as fellow Americans. Second, the corps would put its members to work doing community service, public works, disaster relief, and other missions of goodwill. America is increasingly becoming a place where people look upon one another with distrust and skepticism. Instead we must foster a sense of fraternity and mutual support.
Of course, the corps will also strive to instill another key value of the American ethos, individual strength and responsibility. By demanding discipline from its members through rigorous physical and mental exercise, the corps will help to instill a sense of individual strength. The corps will demand self-reliance. We are one nation and one people who stand shoulder to shoulder, but that does not abrogate our individual responsibilities. See Proposed Amendment G.
VI. Call for Positively Directed Change:
Let us not forget that this is a great democracy and there are ways for us to improve our country within the system and without belligerence. Yes, it is true that effecting change within the system is not always easy. Changing our Constitution is not something to be taken lightly, but it is our right to do so when we see problems that need to be fixed. Unless the people of this country take action, the problems with our government will only worsen.
Righting our country will require Americans to act together for change. Great change requires great action. United, state by state, we can achieve the change that our country needs. State legislatures have the power to amend the Constitution without Congress. It is therefore imperative that the American people make it clear to their respective states what they need.
Standing at odds with your fellow Americans is not the right path. Join together and take action as one people. Organize and let your state representatives know that things must change and that you expect them to take action. Hoping for change will not bring about the needed change. Nothing short of broad and relentless action will succeed. Power ultimately resides in the American people.
America must be the master of its economic power and not be mastered by it. Let us not fall into the trap of demonizing our economic system. America’s economy is a great implement to be used for the benefit of our country. Increasing the transparency and accountability of our government should be our aim. America – for the people by the people.
Lycurgus
Preface:
The following proposed amendments are intended to be a starting point for discussion. Although I have written them alone, I have drawn upon the language of other authors where possible. In particular I have utilized the language of S.J. RES 11 of the 112th Congress as the template for amendment A. Of course, I have changed the content significantly. In addition, the language of proposed amendment F has been inspired by Article I of the United States Constitution.
Some of the suggested changes that I have proposed will require more than an amendment. Supporting legislation will be essential.
If you believe that we need real change and not the kind that politicians keep promising, notify your State representatives what you want from them and get them to support a Constitutional Convention.
Proposed Amendment A: Term Limits and Accountability in Congress
Proposing an amendment to the Constitution of the United States relative to the tenure of Members of Congress. This amendment shall change the length of terms for Members of the House of Representatives and Senators. It shall also limit the number of terms that the Members of Congress may serve. It shall also grant the People of the various States and districts therein to recall Representatives and Senators.
Article:
Section 1: The term for Members of the House of Representatives is hereby increased to 3 years.
Section 2: The term for Senators is hereby increased to 9 years.
Section 3: No person who has served three terms as a Representative shall be eligible for election to the House of Representatives. For the purpose of this section, the election of a person to fill a vacancy in the House of Representatives shall be included as one term in determining the number of terms that such person has served as a Representative if the person fills the vacancy for more than two years.
Section 4: No person who has served one term as a Senator shall be eligible for election or appointment to the Senate. For purposes of this section, the election or appointment of a person to fill a vacancy in the Senate shall be included as one term in determining the number of terms that such person has served as Senator if the person fills the vacancy for more than four years.
Section 5: Terms beginning before the ratification of this article shall be taken into account in determining an individual’s eligibility to hold office.
Section 6: Each year in November, any State or district may choose to hold a referendum to recall its incumbent Senator or Representative. Such referendums of recall shall be initiated and executed in accord with the rules that each State shall deem appropriate. If a Representative or Senator is recalled by referendum in their district or State, they shall be removed from office and will be replaced in accord with the established rules for filling such vacancies. No State or district may hold a referendum of recall for any incumbent in two consecutive years.
Proposed Amendment B: Campaign Finance Reform
Proposing an amendment to the Constitution of the United States that will eliminate anonymous contributions to politically active organizations.
Article:
Section 1: Any organization that engages in political activity must make public all sources of funding and support.
Section 2: For the purposes of this amendment, giving funding, support or payment to an organization that engages in political activity constitutes political activity.
Section 3: For the purposes of this article, political activity includes, but is not limited to: directly or indirectly advocating for a candidate for an elected office; directly or indirectly advocating against a candidate for an elected office, directly or indirectly advocating or opposing a public policy, statute or regulation.
Proposed Amendment C: Corporate Speech
Proposing an amendment to the Constitution of the United States that will limit the First Amendment protection for Corporations and other non-natural persons.
Article:
Section 1: The First Amendment’s protection of free speech does not apply to the political activities of for-profit corporations and other for-profit organizations.
Section 2: All organizations, that have not been formed for the sole purpose of engaging in political activity, must obtain the consent of its members before engaging in political activity.
Proposed Amendment D: Conflicts Of Interest By Those Serving In Government
Proposing an amendment to the Constitution of the United States that will limit the potential conflicts of interest for those individuals that transition between the government and industry.
Article:
Section 1: Congress shall pass statues limiting the ability of those working for the Federal Bureaucracy in decision-making positions from subsequently accepting employment by the industry that they have been regulating. Such individuals shall be prohibited from accepting prohibited employment for no less than three years from the time of their departure from government service.
Those restricted under this amendment and related statutes shall include, but not be limited to, those who hold positions as department heads, members of administrative governing bodies and administrative adjudicatory bodies (ex. FCC, FDIC, Federal Reserve, etc.).
Section 2: Individuals that have had a tenure of more than five years in an industry are ineligible for appointment to a decision-making position within the Federal Bureaucracy that regulates the industry in which they have their experience. Congress shall pass statutes pursuant to this section.
Proposed Amendment E: Employment Not Entitlement
Proposing an amendment to the Constitution of the United States that will free the Federal and State governments from the procedural due process requirements of the 5th and 14th amendments as they apply to employment by the Federal and State governments. Though the Federal and State governments may provide as much procedural protection for employees as they deem appropriate, they will no longer be controlled by the 5th and 14th Amendments.
Article:
Section 1: Employment by the Federal and State governments does not constitute a property interest that is protected under the Fifth and Fourteenth Amendments.
Proposed Amendment F: The Counteractive Legislature
Proposing an amendment to the Constitution of the United States that shall create a Counteractive Legislature. The Counteractive Legislature shall be a democratic body charged with the task of eliminating archaic, inefficient and biased laws. The Counteractive Legislature will also act as a gatekeeper for any new laws passed by Congress.
The Counteractive Legislature will be composed of 101 members; two members from each State plus one from the District of Columbia. Each member of the Counteractive Legislature shall be at least thirty-three years old and will be elected for three-year terms. No person shall serve more than three terms, or nine years, in the Counteractive Legislature.
The Counteractive Legislature itself shall exist for a period of 18 years after which time it will be dissolved. The States and the District of Columbia may disband the Counteractive Legislature sooner than the 18 years if six-tenths of the respective legislatures choose to do so. Further, the States may choose to form a new Counteractive Legislature at any time that seven-tenths of the State legislatures choose to do so.
Article:
The Tribunate
Section 1: The Tribunate shall be composed of two Tribunes elected every third year by the People of several States. The District of Columbia shall elect every third year one Tribune to be a member of the Tribunate. No person shall be a Tribune who shall not have attained to the age of thirty three years, and been a seven year citizen of the United States, and who shall not, when elected, be an inhabitant of that State or the District of Columbia in which he shall be chosen.
When vacancies happen in the office of Tribune from any State or the District of Columbia, the Executive authority thereof shall issue Writs of Election to fill such vacancies.
The Tribunate shall choose their Speaker and other Officers.
Section 2: The times, places and manner of holding elections for Tribune, shall be prescribed in each State and the District of Columbia by the legislature thereof; but Congress may at any time by Law make or alter such regulations.
The Tribunate shall assemble at least once every year for the duration of its authorized existence.
Section 3: The Tribunate shall be the judge of the elections and qualifications of its own members, and a majority of the body shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as it may determine.
The Tribunate may determine the rules of its proceedings, punishment of its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
The Tribunate shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the Yeas and Nays of the Tribunes on any question shall, at the desire of one fifth of those present, be entered in the journal.
The Tribunate during its session, shall, without the consent of the President, adjourn for more than three days.
Section 4: Tribunes shall receive a compensation for their services, identical to those received by Senators, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of the Tribunate, and in going to and returning from the same; and for any speech or debate in the Tribunate, they shall not be questioned in any other place.
No Tribune shall, during the time for which he was elected be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the United States, shall be a Tribune during his continuance in office.
Section 5: The Tribunate shall not have the power to make new law; nor shall it have the power to add any language or requirements to existing laws.
Section 6: The Tribunate shall have the power to nullify existing laws of the United States passed by Congress. After review, debate, and consideration, the Tribunate may vote to nullify any Federal statute or part thereof. After the majority of the Tribunate votes in favor of a nullification, a notice of nullification or delayed nullification shall be presented to the President of the United States for his approval.
If the President of the United States approves of the nullification or delayed nullification, he will sign it within 20 days of receipt. Once signed, the nullification or delayed nullification will be effective in accordance with the language presented to the President of the United States by the Tribunate.
If the President of the United States disapproves of the proposed nullification or delayed nullification or he fails to sign it within 20 days of receipt, then the proposal shall be returned to the Tribunate as vetoed. The President may, at his discretion, included with the returned proposal an explanation detailing his reservations regarding the proposal.
The Tribunate may then reconsider the proposed nullification, with or without the President’s explanation. If the Tribunate, upon reconsideration, should pass the proposed nullification, without alteration, with three-fourths of the sitting Tribunes, then the proposed nullification will be effective without the signature of the President. If the Tribunate, should choose to alter the proposed nullification, either because of the President’s reservations or of its own accord, the President shall be given another 20 days to sign the proposal.
The Tribunate may pass two kinds of nullification. The first kind shall be an Immediate Nullification. An immediate nullification will become effective immediately upon being signed by the president or, if previously vetoed, upon passage by three-quarters of the sitting Tribunes. The second kind shall be a Delayed Nullification. A Delayed Nullification, if passed in accord with the above procedures, shall take effect on a date and time specified in the proposed nullification by the Tribunate.
Whenever a Delayed Nullification is passed by the Tribunate, Congress may choose, in accord with its usual procedures, to alter or amend the statute or provision that has been identified for nullification. If Congress alters or amends a provision identified for nullification before the date set forth in a Delayed Nullification, then the amended statute or provision shall become the new law and the Delayed Nullification shall be moot.
The Tribunate may, in its discretion, append to any nullification an explanation. Any such appended explanation shall not have any legally binding effect on any branch of government, the States or the People of the United States. The explanation will only serve to inform the other branches of government, the States and the People why a particular nullification has been proposed.
Section 7: The year following the passage of this amendment or a call for a new Tribunate, the States and the District of Columbia shall hold elections to choose Tribunes. Within the twelve months following the elections, the Tribunate shall hold its first session.
After a Tribunate is established, it shall meet each year for eighteen years, after which the Tribunate shall be disbanded.
Section 8: Congress shall pass legislation providing sufficient funds to the Tribunate for a meeting space, office space, and other necessaries. Congress shall also provide funds to each Tribune for office staff in an amount equal to what each Senator’s office receives.
Section 9: The States and the District of Columbia may choose to disband the Tribunate before the eighteen years have passed. The legislative bodies of the various States and the District of Columbia may, in accord with their own procedures, issue a writ of dissolution. Where six-tenths of the States issue such writs, the Tribunate shall be disbanded.
Section 10: At any time that there is no authorized Tribunate, the States and the District of Columbia may call for the creation of a new Tribunate. The legislative bodies of the various States and the District of Columbia may, in accord with their own procedures, issue writs of creation calling for a new Tribunate to be formed. Where seven-tenths of the States issue such writs, a new Tribunate shall be formed in accordance with the provisions of this amendment.
Proposed Amendment G: The Civilian Corps
Proposing an amendment to the Constitution of the United States that shall require the Federal Government to establish and maintain a Civilian Corps. The Civilian Corps shall be formed to promote the principles of discipline, community service and fraternity. Although the Civilian Corps will be ordered and run like a military institution, it shall not be a combat organization and shall not be used for military purposes.
All citizens on their 18th birthday shall be obligated to serve in the Civilian Corps for a period of two years. Service in the Civilian Corps is mandatory and shall not be waived for any citizen except for those that choose to join the Federal Armed Forces.
Article:
Section 1: Congress shall establish a Civilian Corps within 5 years of the ratification of this amendment. The Civilian Corps shall be founded on the principles of discipline, community service and fraternity. To foster these principles, the Civilian Corps shall:
· Train its members to be physically fit
· Teach its members civic responsibility
· Put its members to work doing community service and other public works
· Foster a sense of unity among its members
Congress may delegate the authority to organize and run the Civilian Corps to the President of the United States. The branch responsible for managing the Civilian Corps shall set the specific curriculum and structure for the organization.
Section 2: The Civilian Corps is not a military organization. It may not be used for combat, peacekeeping or any other military purpose.
Section 3: All citizens upon attaining the age of eighteen must join the Civilian Corps. Service in the Civilian Corps shall be two years. Exemptions from service in the Civilian Corps will only be granted for citizens that choose to join the Federal Armed Forces.
Section 4: The Civilian Corps shall house its members in military style barracks or similar communal living structure. The Civilian Corps shall also provide food for its members. The Civilian Corps may choose to compensate its members. The Civilian Corps shall hire personnel to accomplish its mission. Congress shall make funds available to meet the financial needs of the Civilian Corps.
