FIX IT #1: Reviving the Constitution without amending it

Gordon L. Weil

This is the first in a series of articles on measures to deal with current constitutional issues without amending the Constitution.  These issues have arisen because practices have evolved that result in abandoning original intentions and eroding democratic rule.  Each article in the FIX IT series will deal with a single proposal that would rebalance government.  Change would focus on creating conditions for compromise, essential for the functioning of the American government.  These proposals are only one set of ideas; others are possible.  I invite your comments.

 

 

In 2015, President Barack Obama nominated Merrick Garland to the Supreme Court, but the Republican dominated Senate refused to hold hearings on the nomination in the belief that, if a Republican won the presidency in 2016, they could fill the vacancy.   Later, Neil Gorsuch, the replacement GOP nominee of President Trump in 2017, could only be confirmed over Democratic opposition when the Senate GOP changed its rule on the majority vote required for confirming Supreme Court nominees.  

Both events were clear cases of historic constitutional customs giving way to partisanship.  Traditionally, the president’s choices of Supreme Court justices were approved by the Senate, so long as the appointees were found to be competent.  But, in recent years, senators had come to display extreme partisanship and apply ideological criteria.  That left no room for compromise.

The United States is a country built on compromises.

It began with the Declaration of Independence when delegates could not agree that “all men are created equal” included African-Americans.  At least five colonies found slavery essential to their economies and seemed ready to spurn independence if other colonies insisted on condemning the system on which they relied.

The Declaration created a military alliance of 13 independent states, united by their desire to throw off control by the British king and his government in distant London.  But no American government was yet created.  Instead, the states made voluntary contributions to the joint effort.  At the outset, there was no national army, leaving the war effort dependent on state militias.  And slavery survived.

On the day George Washington was selected to head the joint military effort, he might have qualified as the only American who was more than a citizen of his home state. 

Washington needed a national government that could marshal the resources to pursue the war.  The states compromised by reaching a formal agreement having its own voting procedures, but the country remained heavily dependent on voluntary state support.  

This agreement was the Articles of Confederation.  It created a “perpetual” union of the states and named the new country: the United States of America.  It provided for services, from military to postal, that only the nation as a whole could provide, but state financial support to provide those services remained voluntary.  It neither dealt with slavery nor created a standing army.

The compromise on slavery worked, because the confederation left most powers to the states.  While offering the opportunity for closer cooperation, the Articles provided more possibilities than real progress.

Daniel Shays changed everything.  In 1786-87, he led a rebellion in Massachusetts against  efforts to collect taxes and debts.  His rebellion was suppressed by the state, while the American confederation stood helpless.  Washington and Alexander Hamilton, his former aide, stepped up pressure for a stronger national government.

The Confederation Congress agreed that the Articles had to be revised.  In the end, the 39 men who negotiated a new agreement in the Philadelphia summer of 1787 almost totally replaced the Articles.  The new document was the U.S. Constitution.

The war against Britain was a rebellion, but the Constitution was the real American Revolution.  It created a completely new form of government.  It would have no king and no single dominant branch of government.  The legislative, executive and judicial branches would be separate and control one another through a system labeled “checks and balance.”

The new Constitution established a federation in which the national government and the states would share sovereignty.  Not only would this make sense for an already vast country extending over a thousand miles, but this compromise was essential if the states were to cede some real powers to the federal government.

The Constitution created a democratic republic, meaning that popular control would be exercised through elected representatives.  It embodied two main compromises.  Slavery could continue and there would be a combination of popular and state control of the national government.

All states would have equal power, as they had under the Articles, while the people were also given a stake in the government.  The compromise took the form of a bi-cameral Congress composed of a House of Representatives with membership elected by the people and a Senate in which each state would have two votes.

The two compromises were linked.  The existence of the Senate as an essential part of the legislative process not only respected the states but allowed the slave states to protect their “peculiar institution” as the country developed.

Two concepts were borrowed from the British.  Like Parliament, Congress – the lawmaking body – would be the most important branch of government.  There was no mistaking this intent as shown by placing it in Article I with the president following in Article II.

Britain had no written constitution.  Their basic agreement consisted of Acts of Parliament and some venerated customs.  Similarly, the written U.S. Constitution left many governmental powers subject to understandings, which would become customary. 

One central understanding was that the free states and the slave states would be kept equal in number.  But the Constitution could not guarantee that equality would continue indefinitely. The slave states of the South became increasingly concerned whether the basic constitutional compromise could be maintained.  With the election of Republican Abraham Lincoln, they lost faith that their economic and social system could survive. “And the war came,” as Lincoln said.

Two post-Civil War events changed almost everything.  Slavery was outlawed and the states came more closely under federal control.  This was the Second American Revolution.

Still, it would take another hundred years before its intent was realized.  The former slave states delayed equality for the former slaves and their descendants.  They exploited a Senate rule that allowed them to prevent votes on civil rights for African Americans. By 1964, it could no longer block such votes, though the rule would survive.

The other change came in a constitutional amendment in 1913 that ended the Senate as a forum of the states.  Instead its members are elected by the people, not by state legislatures as they were previously.  But each state continues to have two senators.

Slavery’s legacy survived. Under their so-called Southern Strategy, the Republicans refashioned their party in 1960 by exploiting southerner discontent with the rise of African-American voters. Republicans gained political strength as the coalition between conservative Southern Democrats and liberal northern Democrats collapsed.  As election followed election, voters became polarized. 

By 2000, Republicans had discovered they could manipulate the historical customs that had allowed the relatively smooth functioning of the constitutional system.  There was nothing overtly illegal in what they did.  They found they could solidify their control of the federal government by substituting new partisan practices for those customs.  Democrats, fearing they might one day find themselves in the same position, accepted some of these new practices.

Such partisan practices meant that reaching compromises became almost impossible. What the Republicans had exploited for political gain would lead to sustained conflict that could ultimately disrupt or undermine the constitutional system.

To prevent this development, the federal government must recover the customary practices that had promoted compromise.  Preserving the Republic would have to gain greater importance than diverting constitutional custom for partisan gain.

Of course, the Constitution could be amended as its Framers had expected. But amendment is a difficult process and risks opening the door to repeal of some essential procedures and safeguards.

An alternative is to revive historic understandings by institutional change not requiring amendment.  These actions could take place gradually, piece by piece.  Identifying some of those pieces is the purpose of the following FIX IT series.

Each section contains four parts:  (1) Quick Fix, a summary of the proposal; (2) The Proposal, an explanation of its background and details, (3) Political Effect, a brief analysis of the implications of the proposed change on politics and power and (4) Major Repair, a description of more extensive but less likely changes, including amending the Constitution, that would achieve a similar result.