Happy 4th!
The Declaration of Independence, signed on July 2 and published on this day in 1776, was largely a list of grievances against the English monarchy. When we got around to forming the current government, eleven years later, protections against those excesses of government were, for the most part, contained in the Bill of Rights. What we call Constitutional law is, to a large degree, Constitutional amendments law.
If there was a Constiturional Convention today, is there anyting you would want to change? Would you drop the Second Amendment? The Electoral College? The Free Exercise Clause of the First Amendment. Would you impose term limits on Congressmen or remove them for Presidents? Would you require the President to be a natural born citizen of the United States?
Ambiance 
Theo Boehm said,
July 5, 2009 at 12:40 am
I would scrap the entire Presidential system and return to a Parliamentary system.
It would be like the current British system in that a General Election would have to be held at least every 5 years. I would have the Senate as the Upper House, with House-of-Lords-like restrictions on its legislative power, and I would eliminate direct election of the diminished Senators, and return their election to State Legislatures, to be held every 5 years, but not oftener.
As in the Westminster system, all Cabinet members would have to be elected M.P.’s. The Prime Minister would be appointed by the President with the advice of Parliament.
The President would be elected by a special General Election every 10 years or so, and would be essentially a figurehead, whose power as the symbolic Head of State would be severely restricted by the Constitution. The new Constitution would have to clearly and unequivocally spell out the President’s limited duties to prevent usurpation. The Prime Minister would be the C-in-C of the Armed Forces, the President never being allowed near any actual levers of power.
The Supreme Court’s powers to declare any Federal law unconstitutional would be carefully proscribed. The Supreme Court, and courts in general, would be Constitutionally limited in their powers to strike down or change laws enacted by Parliament. The essential idea is that Parliament, as the elected representatives of the people, is the source all Federal laws and the legitimacy of the State.
The Presidential system made perfect sense in the 18th century, when the British Parliament was rotten and corrupt, and a balance of power seemed necessary to correct obvious abuses. But in the modern world, a Constitutionally-ordered Parliamentary system makes the most sense if we want flexible, responsive government, without the threat of weird damage a President under our current system could do and has done, having no possibility of immediate removal by a vote of no confidence that a Parliamentary system insures.
I realize there is no chance at all of this being enacted, but you asked if there is anything we would change in a Constitutional Convention today, and, if we’re playing Fantasy Government on this 4th of July, those are some of my imaginary players, turned loose to run around the Mall this warm evening.
amba12 said,
July 5, 2009 at 11:40 am
flexible, responsive government, without the threat of weird damage a President under our current system could do and has done, having no possibility of immediate removal by a vote of no confidence that a Parliamentary system insures.
I can hardly count the number of times, midway through some seemingly endless Presidential term, I’ve wished we could just call a goddamned Parliamentary election.
The Framers seem to have thought that would lead to too much instability. For example (see quote from Roger Simon in my new post), Obama’s honeymoon is over. If we had a Parliamentary system would we now be saying “Oops, we made a terrible mistake, do over”?
Theo Boehm said,
July 5, 2009 at 12:24 pm
Oops! I’m sure amba had to stay the hand of the Compulsive Copyeditor in herself, but that should be “ensures” above, and not “insures.”
My only excuse is that it was late, after an afternoon with too many adult beverages, and an evening with too many fireworks.
Rod said,
July 5, 2009 at 12:47 pm
Amba:
Under the system Theo proposes, there is no direct election of the leader of the country. You must vote for your local MP, who, in turn, votes for a Prime Minister along strictly party lines. Applying the analogy to our current Congress and President, There would be no election for another four and one half years unless Obama lost a no-confidence vote – if 51% of the members of Congress voted to replace him. Since his party holds strong majorities in both houses of Congress (I’m treating both houses of Congress here as a single House of Commons, because the elected U.S. Senate really doesn’t have a role similar to the House of Lords), the likelihood of a no-confidence vote would be nil. Obama’s policies would be enacted and unchallenged electorally for three years longer than under our system, with less tempering effect of an opposition party. A hobbled Supreme Court would provide no check or balance if Prime Minister Obama led his party and his country to, say, completely nationalize all health care.
On the other hand, the Democrats would be completely accountable for their stewardship at some point in 2013. There would be no opposition party to blame.
What I am saying is that flexible, responsive government is also a more powerful government. Our Founding Fathers were acutely aware of that, which is why they created a system of checks and balances. What we decry as gridlock also protects us from grand schemes, which is one reason we haven’t enacted the kind of social welfare state common in much of Europe.
amba12 said,
July 5, 2009 at 12:52 pm
Theo: doesn’t that make you glad you don’t have absolute power?
amba12 said,
July 5, 2009 at 12:53 pm
That sounds like even more tyranny of Party than we’re stuck with.
wj said,
July 5, 2009 at 1:01 pm
I’d take control of the drawing of congressional districts away from the states. At minimum, require that districts be geometrically compact, so gerrymandering is much more difficult.
There are lots of other changes I would like to see in how the country is run. But that is the only one which I think belongs in the Constitution (and Amendments), rather than in the legal code.
Simon said,
July 5, 2009 at 1:17 pm
I think that if there was a constitutional convention today, the entire Republic, and everything good in and of it, would vanish from the earth. We do not have the political talent sufficient to write anything as good or a polity of sufficient to ratify it. The very idea is distressing in the extreme.
A convention would be an unmitigated disaster, and must be resisted at all costs. The people advocating it are the successors in spirit to the board that created New Coke, who would do well to read not so much the Federalist Papers as No. 25 of the Screwtape Letters.
There is an overwhelming abundance of right, and very little that is wrong, in the Constitution as it stands today. Fundamental change would throw it all away for the sort of monstrosity recently proposed as a constitution in Europe. And what little actually needs change (which is less than people imagine; WJ’s suggestion could be effected under the existing plan) can be accomplished by carefully-targetted, well-reasoned changes can be passed through the amendment process.
Theo Boehm said,
July 5, 2009 at 1:28 pm
I’d say that a Parliamentary system ensures stronger parties and thus more power to GROUPS of people, who will generally avoid more bone-headed policies in the first instance. Our Presidential system has been known to produce an Executive centered around a narrow faction, often at odds with the broader membership of his (so far) party. If a P.M. gets too out there along these lines, the party leadership can pull him or her very quickly, as we remember they did Maggie Thatcher.
The British P.M. has more effective day-to-day power than the American President, but, as we’ve seen, when the P.M. screws up, he or she can be gone very soon.
Both systems have served their countries. It would be hard to argue, however, that a system that produced the first modern, total war within its own borders and of its own citizens against each other, did any better than the system that, at the same time, built the British Empire.
Most other English-speaking democracies, as remnants of that Empire, use some form of the Westminster system, and I would say experience has shown that, so far, they are not worse served by it than we are by ours.
But the increasingly grotesque nature of our endless Presidential campaigns, not to mention the constant money-raising and febrile electioneering of Congress , PLUS the obvious decline in the quality of our political discourse, make a second look at a Parliamentary system an attractive, if unattainable, proposition.
Theo Boehm said,
July 5, 2009 at 1:32 pm
But, I agree with Simon: As much as we might like to build our Parliaments in the sky, an actual Constitutional Convention would erase the United States, and everything it has stood for, from the face of the earth.
This is, of course, a feature, not a bug, to many who advocate such a Convention.
Simon said,
July 5, 2009 at 1:45 pm
Quite so, but I draw a very different lesson. One has only to look at the Congressional Republican Party of the 1970s and 1980s to realize that there would never have been a Reagan Presidency, even if they had been in the majority. The great difficulty with allowing such a shackling is that it assumes a wayward executive who must be yanked back in line rather than a wayward and indolent party establishment choking an executive who wants to drain the swamp. Alas, you would not protect us from a Bush, merely deny us a Reagan, a Gingrich, or a Palin.
And, of course, given Democratic hegemony on the hill in the 20th century, a Parliamentary system would likely have precluded any GOP administrations at all. One of the great virtues of the American system is the unhappy and often rancorous divorce of the executive from legislature. Ambition has indeed been made to match ambition, as Madison said it must, and the bitter custody battles over power – cases like INS v. Chadha – only confirm the framers’ wisdom.
Simon said,
July 5, 2009 at 1:46 pm
I do, however, think that we should consider whether there ought to be a way for the parties to excommunicate people (if Sanford will not leave us, we should be able to leave him), denying them funding and association. That is not a constitutional issue, though.
Randy said,
July 5, 2009 at 4:00 pm
Theo: You might want to consider the situation now in the UK. Labour has such an overwhelming majority that it is impossible to force them to call an election early despite the fact that it is quite obvious they lost their mandate over a year ago. It seems quite likely they will hold on for another year, until the mandated expiration date, as if an election were held today it is quite possible they will come in third.
Randy said,
July 5, 2009 at 4:02 pm
Parties already can withhold funding, Simon. They can also refuse to associate with him on either the state or national level.
Randy said,
July 5, 2009 at 4:12 pm
And the Republican Governor’s Association can formally un-invite him if they are so inclined. Which I doubt they are. Glass houses and slippery slopes and all that.
What you are advocating, btw, is allowing some small cabal having the power to determine who is or is not a member of the party between the regular dates set for the party members to select their candidates for election. I’m quite satisfied with the system the way it is. Don’t like someone? Don’t renominate him or her.
Rod said,
July 5, 2009 at 6:10 pm
In the name of equal opportunity scenarios, if we had a parliamentary system, W would probably called for elections about two months after 9/11 or about the time of the “Mission Accomplished” photo opp after the Iraq invasion, and run up a large majority. With that in his pocket, he would have partially dismantled Social Security, lost reelection in early ’07 or mid ’08, and left us all with even less.
Another interesting thought: Obama would never have been granted the chance to lead his party over Hillary.
Callimachus said,
July 5, 2009 at 11:51 pm
I don’t go in for the idea of a new Constitutional Convention. We’d never again get the sort of quality we had in the house in 1787: The balance of education and practical experience, of Enlightenment rationalism and fearless liberal Christianity shading into humanistic deism. The proper balance of trust in the people and cold-hearted respect for their irrational and selfish tendencies. Find me 55 such men or women today who would get chosen by their peers in politics to attend such an event.
Besides, the sovereignty of the states is dead and buried. The only thing comparable is special interest groups, corporations, and identities. Instead of Vermont, Georgia, Delaware, etc., we’d have delegates from Sierra Club, GLBT, Comcast, etc. Shudder me down to my core.
However, an experiment I would like to see tried is to wake up one day under the Constitution of 1787. Then to bring it forward by the proper amendments to fit the sort of country we wish to live in, with an eye to the original function of government.
It would horrify people. No Bill of Rights? (Madison thought it was superfluous) Slavery is not illegal (that doesn’t make it legal, and I defy anyone to try to revive it). You’d also throw out a lot of rotten judicial rulings (and a lot of good ones) and really poor, twisted amendments like the 14th.
You could re-do all of them if you wanted to. Or amend it in other ways. Make the right to privacy explicit, say: put it right there in 30-point print, rather than “discovering” it in the “penumbra.”
Simon said,
July 7, 2009 at 11:40 pm
Rod said,
I never said it didn’t have any advantages. ;)