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An Exercise in Revisionism: How would you change the Constitution?

By Mitchell B. Reiss


"I am certainly not an advocate for frequent and untried changes in laws and constitutions.... But...laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change, with the change of circumstances, institutions must advance also, and keep pace with the times."

— Thomas Jefferson, in a letter to Samuel Kercheval, July 12, 1816


In this column of last fall’s Trend & Tradition, you may recall that I explored America’s colorful history of Constitutional revision — the successful attempts as well the unsuccessful ones — and invited you to share how you might amend our seminal founding document, given the chance.

The roughly 80 proposals we received in response, ranging in length from a few words to several pages, span everything from repealing portions of the Constitution to leaving it alone entirely. Many of the proposed changes feel inspired by current headlines, tackling such polarizing subjects as eliminating the Electoral College and addressing the status of children of undocumented immigrants.

In other words, you have a lot on your minds — no surprise, of course, given the complex and politically charged times in which we find ourselves. It was a pleasure to read and consider your reflections, a selection which I share here now as food for thought and to further civil discourse, something to which we aspire here each day. While space constraints prevented us from printing every submission in the magazine, you can read more of the responses here.

The Electoral College

The Electoral College is a constitutionally created system of electing the president and vice president, in which the number of electors in each state is equal to its number of congressional representatives. But some, like Peter McKenna of Lynn, Massachusetts, feel it is a process that has obliterated the principle of one person, one vote.

“Whichever party controls Congress continuously revises voting area boundaries to benefit their party and sway the election,” McKenna said.

Gilbert Armour of Roanoke, Virginia, argued that the Electoral College resembles a direct election too closely, and as a result “suffers the weaknesses of direct democracies.”

“We see today the highly partisan and divided electorate that infects democracies. Presidential elections are becoming increasingly close,” Armour wrote. “The Founders knew this and founded a republic to protect against this threat to the government. We already see that the biggest cities can determine the outcome of an election, leaving the rural area unrepresented.”

Citizens need only look to recent history to see “the folly” of the Electoral College, said Deborah Thompson of San Rafael, California. “No other developed country, no other democracy uses such an anachronistic system.”

Corporations

A few respondents seized on court decisions — some dating to the 19th century — that gave corporations some of the same rights under the Constitution as individuals. The Burwell v. Hobby Lobby Stores decision in 2014, for example, exempted the company from portions of the Affordable Care Act because it placed an undue burden on the owners’ exercise of free religion.

Leonard Levine proposed that a distinction between human beings and entities is needed. “Entities that are not natural individuals are denied the status of citizens,” he wrote — though he included a “Sovereign Government Exception,” indicating that the basic rights of the government of the United States are based on the Constitution, and the rights of states are based on their constitutions.

Corporations should be afforded only the rights that the Constitution and its amendments specifically enumerate for them, said Thornton Parker of Rockingham, Virginia. The term “person,” he said, should mean a human being.

“This would undo the 1886 Supreme Court decision in Santa Clara County v. Southern Pacific Railroad Company that extended to corporations the rights that Amendment 14 provided to former slaves after the Civil War,” Parker said.

Immigration

While the 14th Amendment declares that all persons born in the United States are citizens, Allen Huelskamp argued there should at least be a clarification about children born to immigrants who are here illegally.

Citizenship should not be awarded to them automatically, said Huels-kamp, of Wauseon, Ohio. “These children would though automatically become U.S. citizens once at least one of their parents becomes a U.S. citizen.”

Elections

There are also those who indicate that some housekeeping is in order for the current document before additions are made.

Some, like Kim Weissman of Green Valley, Arizona, would repeal the 17th Amendment, which in the early 20th century gave the voters in each state the power to elect their senators. Previously, senators had been elected by state legislatures.

“There was a very good reason the Founders gave state legislatures the power to appoint senators rather than have senators elected,” Weissman said. “It was so that the states, as sovereign political entities, would have a voice in the national government and would be able, as a block of sovereigns, to oppose federal overreach at the expense of state sovereignty and authority.”

“There was much debate in the original Constitutional Convention about balancing people’s interests with the state’s interest,” said Armour of Roanoke, Virginia. “One wing of Congress represents the people (House) and one the state (Senate). This amendment eliminates representation for the state’s interests. There is now no real difference between the two wings of Congress. All we’ve done is split the people’s interest and leave the states unrepresented.”

A number of respondents also would like to revisit the 26th Amendment. Ratified in 1971, it lowered the voting age from 21 to 18.

“Eighteen-year-olds are too young and inexperienced to vote in federal elections,” said Christopher Williams. “There is too much responsibility for such an act and the current age does not reflect the depth of understanding and maturity to express oneself at the polls. I did not know much at the age of 18 and understanding the importance of such a responsibility did not take shape until I aged and became more aware of not only our government but the nation as a whole.”

The Presidency

Marsha Heien and Bruce P. Schoch suggested that it might be time to eliminate the requirement that the president be a natural-born citizen of the United States.

“I think a naturalized citizen is just as much a U.S. citizen as one born in the U.S.,” said Heien, of Stuttgart, Arkansas. “Maybe even more so, as a naturalized citizen had to work so much harder to become a citizen. They appreciate it more than we do.”

“We are no longer in danger of being seduced by a penniless foreign prince,” added Schoch, a Williamsburg resident.

Balanced Budget

A balanced budget was on the minds of a number of respondents. Raymond Young Thomasson of Nashville, Tennessee, factored in the possibility that spending may exceed receipts in a given year, but if that were to be the case, he suggested that three-fifths of both the House and the Senate should have to approve it — by a roll-call vote.

“If all these characters running for office had to explain how they would fund all their promises, we may soon find some intelligent discourse in what has become a process few intelligent Americans find at all meaningful,” said Thomas Richard Grieve of Christiansburg, Virginia.

Term Limits

Nearly one-quarter of the suggested changes to the Constitution centered on term limits, and they were not confined solely to Congress.

“The Founding Fathers, being rich men laboring under the mindset of the Enlightenment, never conceived when they wrote the Constitution of the possibility of professional politicians and professional political parties running the United States,” said Gene Enders of Harrison, Ohio. “They believed a man came, did his duty for the community, then retired to private life.”

“Term limits would bring the representatives of the people back to focusing on the job at hand as opposed to a constant striving for re-election,” said Ed Merrell of Foley, Alabama. He suggested that House members serve no more than three two-year terms, senators be limited to two six-year terms and presidents serve a single six-year term with no possibility of re-election.

Term limits, said Sharon Stauffer of Williamsburg, would “keep the elected official grounded to accomplish an agenda.” In addition to the limits, she also suggested changes in the terms: House members would receive an additional year, and be confined to two three-year terms. Senators would lose a year from the current six-year term and would be allowed to stay for two terms or 10 years.

“This would keep money raised and spent to run for office to a minimum, so the elected official can concentrate on government business and it would then allow for new qualified citizens to enter the political arena,” Stauffer wrote.

The Henaseys of Swiftwater, Pennsylvania, think U.S. Supreme Court justices should be elected for one 10-year term.

And in addition to term limits, maybe there should be an age limit, too, said Anne Montgomery. “My preference would be that no one should run for office after age 65, though there could be different limits for different offices.”

We the People

Amending the Constitution is a slow, arduous process — and rightly so in most cases, though of course there are tragic exceptions. It took 246 years of unconscionable suffering, protest and finally, a civil war to abolish slavery through ratification of the 13th Amendment. The Fifth Amendment, barring deprivation “of life, liberty, or property, without due process of law,” had done nothing to protect a group of people the Nation defined legally as chattel.

In reality, the vast majority of efforts at revising the Constitution fail — electing the president by lottery didn’t make it, for instance, nor did banning anyone who fought in a duel from holding federal office. But never underestimate the determination of Americans to go the distance when they really set their minds to something. It took nearly a century of pressure and courageous protest by women’s suffrage organizations and activists to win voting rights for women — but win they finally did, in 1920.

“Where does that leave the concerned citizen?” Bruce P. Schoch wrote.

“Reflect, read, research, and write — your state legislators, your federal legislators, your neighbors and interest groups,” he reminds us. “Nothing becomes ‘fixed’ until citizens become involved.” 

Mitchell B. Reiss, President and CEO

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