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Does the Constitution need Amending?

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Of course we can amend our Constitution but we are all quite aware that amendments do not come easily. The process was deliberately made difficult so as to ensure that there is widespread support for any amendment. History confirms that often the process often takes many years of persistent effort.

Curiously however, there is a short-cut around the formal amendments and that is for the Supreme Court to simply re-interpret one or another clause of the Constitution. Sometimes this happens for reasons that seem, at least to laymen, to be more easily understood as motivated by political ideology than by legitimate legal reasoning. This short-cut cannot be found in the Constitution and in fact there is good reason to think this short-cut is actually at odds to the Constitution's original intent. The Constitution was written in plain language so as to be easily understood and serve as a guide as how the government should function.

On only brief reflection, it does seem highly unlikely that men who devoted time and great trouble to make the Constitution so very difficult to amend would have knowingly provided a way for a small number of appointed justices serving lifetime appointments to so casually make important changes to our understanding of the Constitution. This judicial blemish seems to have derived from a dubious grab for power in the the 1803 Supreme Court decision regarding the famous case, Marbury v Madison; but still, the decision stands and it likely will continue to stand.

There are arguments, of course, for judges to be appointed rather than elected. But recent history clearly illustrate that there is good reason for concern with how this now very important court comes to be populated. Of particular concern is the fact that appointments to federal courts are for a lifetime. A more rapid turnover in the membership of the Supreme Court would, especially in view of the great power the Court now holds, seem more sensible. The problems with the federal courts (and particularly with the Supreme Court) are grave and at the very least they at least deserve some thoughtful discussion. In order to stimulate thoughtful consideration and discussion of these issues, let me propose two candidate amendments to the Constitution.

Amendment A. On September 1 of every odd numbered year, the longest serving member of the Supreme Court shall retire from that position and thereafter not be eligible for future appointment to that Court.

Notice that this amounts to an eighteen year term limit so long as the Court remains at nine Justices, but in a simple manner, this wording maneuvers around the intricacies of the introduction of those term limits in the first years after the amendment is first enacted. Notice that with this system, during three presidential terms (twelve years), six new justices would be appointed, and this would break up any five-justice majority that might form before they have much time to control the decisions. Of course the specific date of September 1 is arbitrary, but a date late in the year would give some breathing room for a new president. Some adjustment to the wording could be considered to omit a forced retirement when there is a voluntary retirement or the death of a justice.

On another matter, the appointment by Obama of Neil Gorsuch shows how easily the current confirmation process can be abused by deliberate Senate inaction. This recently demonstrated corruption clearly calls out for correction, but the Senate sets its own rules, governed only by conformance with the Constitution. For that reason it does seem that actual reform will require yet another amendment to our Constitution. In this regard, I would suggest, for discussion, the following approach:

Amendment B. T he President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court. Whenever the Senate fails to reject such an appointment within ninety days of when the President first notifies the Senate of that appointment, that inaction by the Senate shall be interpreted as the Senate's endorsement of the President's appointment.

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A concerned citizen and former mathematician/engineer now retired and living in rural Maine.
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Paul Cohen

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In case it is not clear from the link in the article, I have written many articles on Balanced Voting showing various approaches for reducing partisanship by moving toward a multiple-party system.

Submitted on Thursday, Feb 6, 2020 at 7:32:40 PM

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Josh Mitteldorf

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In my opinion, we're not following the constitution we've got. Until we do, we can only expect that whatever well-intentioned changes we fight for will not be ignored or circumvented, as the present constitution is ignored and circumvented.

  • The constitution says that Congress, not the Fed, should coin money.
  • The constitution says that only congress has power to make war.
  • The Kellogg-Briand pact makes wars illegal
  • Habeas corpus has been replaced by the Patriot Act
  • The Fourth Amendment is flouted by NSA, spying on every conversation and every text message we send.
  • 1st Amendment Freedom of the Press is inconsistent with our government's imprisonment of Assange

Submitted on Friday, Feb 7, 2020 at 2:06:59 AM

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Paul Cohen

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Sure, parts of the Constitution are violated today, mostly the guarantees of rights in the first ten Amendments. And especially in the current administration there have been flagrant violations of treaties which in Article 4 are described as the supreme law of the land. And some clauses of the Constitution may be subject to interpretation - such as when the Congress authorizes the Fed or the President to act in its place; in such cases people can honestly disagree whether the Constitution is being followed.

But many parts of the Constitution are still followed faithfully and that seems to be largely the case for those parts concerning the actual operation of the three branches of the government. We still hold elections using the Electoral College for example and according to the schedule laid out in the Constitution. States still choose Representatives, Senators and Electors. The President still reports to Congress annually on the state of the nation. And even some amendments that guarantee rights to citizens are in many cases followed, suffrage for women being an example.

So I'd not be so quick to dismiss the value of the Constitution or of amendments to the Constitution. Without it this would surely be a very different country.

Submitted on Friday, Feb 7, 2020 at 12:44:28 PM

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Anton Grambihler

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The selection of Senators by the States has been destroyed and are now selected by War Mongers and the people vote for the lesser of the evils. The need for campaign money makes the Senators vulnerable to Blackmail.


The Electoral College in under threat by States working to overturn it with legislation making the Electors vote using the popular vote in the Nation instead of retaining State representation.


Submitted on Friday, Feb 7, 2020 at 6:17:49 PM

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Paul Cohen

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The right way to deal with the Electoral College is to support the National Popular Vote Interstate Compact. Ratification by only a few more states is needed and though it will not eliminate the Electoral College it will guarantee election of the candidate with the most votes.


How would you solve the problems you have identified regarding the financing elections? In the past, the Supreme Court has blocked efforts by the Congress to deal with this problem and the current Court seem even less inclined to allow such efforts.


I have suggested that widespread adoption of Balanced Voting could at least help with this issue. Much of the spending on elections seems to be for buying negative ads; with more viable candidates, negative ads should be less effective and perhaps counterproductive. In addition, with more candidates the voters may become more focused on issues than on simply supporting one of the two parties.

Submitted on Saturday, Feb 8, 2020 at 12:28:44 PM

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Anton Grambihler

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If the Senators were selected by the States as previous to 1913 then a major source of reelection funding would be eliminated.


The popular vote of all people in the USA must not be used by the Electoral College. These Electors are suppose to represent me and no one else. What needs to be eliminated is Winner Take All like Nebraska and Maine have implemented. I would be in favor of the Senators not having a vote except in case of a tie.


Only registered eligible votes who can vote for/against a candidate/referendum must be allowed to make contributions for that cause.


I think it should be required that ALL ads contain a for/against in the same ad



Submitted on Sunday, Feb 9, 2020 at 2:53:29 AM

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Paul Cohen

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Reply to Anton Grambihler:   New Content

I do agree that if winner-take-all were eliminated everywhere then democracy would be better served, but democracy does not seem to be high on your agenda. Democracy would surely be better served if there were majority rule in presidential elections.

Times do change and so do appropriate measures. At the time of the founding of this country, transportation and communication were still in a primitive state. And I would add that, given the difficulty of communication at that time, a nation-wide popular vote would probably have been regarded as an impossibility. Turning the selection of a president over to an Electoral College was probably the closest approximation possible to a democratic process in that era.

In those days, most people were farmers; they inherited their farm and would pass it along to their children. People born in Virginia generally died in Virginia and probably never went so far away as Maryland. They thought of themselves as Virginians more than they thought of themselves as U.S. citizens. In this context, they naturally thought of the union as a federation of states and it made good sense to nearly everyone to think an appropriate notion of representation in the federation was state by state.

That model does still stand to some degree, but for the most part today, people are much more mobile. They are born in one state, go to school in another, find a job in a third (or fourth or fifth) and retire in perhaps yet another state. Many if not most people now think of themselves as citizens of the country who temporarily live in one or another state. And most people today think of the U.S. as a single entity, though incidentally divided up for convenience into various states. Again, this may not be everyone but arguably this attitude is commonplace if not the vast majority. In today's world, this seems to be a good argument for taking the majority opinion of the entire country more into account.

Submitted on Sunday, Feb 9, 2020 at 1:14:47 PM

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Anton Grambihler

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I think that using the popular vote would lead to many happy lawyers and many angry voters.

Submitted on Monday, Feb 17, 2020 at 6:34:39 PM

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