Three new constitutional amendments

by on December 8, 2005 at 7:23 am in Law, Political Science | Permalink

The Cato blogad at the right, and Jim Buchanan’s new essay, ask what three amendments you would pick for the American Constitution.  Will Wilkinson suggests an amendment to ban interference with voluntary exchange.

Sadly, I am unable to come up with good candidates.  I have plenty of ideas, such an amendment to forbid tariffs and quotas on foreign goods and services (would it cover health and safety concerns?  Would we be assured of non-pasteurized French  cheeses?).  But I worry the amendments would place too much weight on the Constitution.  It is easy to ignore a Constitution or to overturn it altogether.

Libertarians (and contractarians) often treat the Constitution as a kind of free variable to be manipulated.  We can write into it what we want, and if we fail we treat this as a kind of lament, or a sign of moral decay, rather than a problem with our basic approach.  In my view, if a constitution deviates from popular opinion (or is it the prevailing structure of interest groups?) by any more than "k" percent, that constitution will be chucked.  Furthermore changing your constitution too much, or ignoring it too blatantly, is costly in terms of long-run political order.  I view this as a constraint to be satisfied by political thinking, even though we can (and should) criticize that constraint at a meta-level.

That is why my three amendments would have to be modest.  Free trade might stick as an amendment, especially if we added a national security clause.  The Finns didn’t get very far with a supermajority requirement for fiscal policy.  I don’t see "procedural" approaches, such as term limits, as yielding much gain.  But local municipalities should not be allowed very strict anti-barbecue codes; I don’t care what they do with the smoke.  Nor should commuters be forbidden from driving on side roads during rush hour, just because the homeowners don’t like it.

Here is one relevant critique of Buchanan.  Surely you all have better ideas for three constitutional amendments; comments are open.

Bill Stepp December 8, 2005 at 8:02 am

Real libertarians want the Constitution repealed. As Spooner said, it has
no authority.

joshg December 8, 2005 at 8:49 am

Congress shall make no law interfering with free and voluntary exchange without demonstrating a clear and well substantiated market failure.

Just vague enough to do some good. Might do some good in getting rid of pure paternalist type laws.

Eli December 8, 2005 at 9:14 am

Four words: abolish the income tax.

Another one: Any local, state, or federal funding for education must be provided to students without regard to which schools they attend, whether public or private, secular or sectarian, or selective or otherwise.

I agree with Brock’s proposal of an 18-year term for the judiciary.

Grant Gould December 8, 2005 at 9:43 am

Repeal (or substantially reduce) the 17th Amendment.

The big check on federal power was always meant to be the states, and for a long time they did put the brakes on the federal government. They were able to do this largely because the states had a voice in Congress — the Senate.

But the 17th amendment has taken the states entirely out of the loop. Congress has no reason to defer to state government, and so has increasingly trampled it. We have had to depend on monolithic, centralized courts to check Congress rather than on states that can try a diversity of strategies and compete with and learn from each other.

If you want congressional power rolled back, you need to give the states a seat at the table. Make the Senate no longer House-lite but a genuinely different body representing a different constituency.

While it is true that the 17th amendment addressed difficulties that states had had in selecting Senators reliably and honestly, many states had already started addressing these issues on their own, with de facto senatorial primaries or even statewide elections. Send this choice back to the states, and you might see Senators who represent their states rather than their parties and interests of the federal government.

Roland December 8, 2005 at 10:18 am

Electoral reform, in particular I like the suggestion above about statewide-congressional ticket, and I woild like to reduce the gerrymander inherent in senate seats–keep the total the same,one for each state, then the balance assigned proportionately (i.e. wyoming 1, California 6 or so, depending on the quotient). This should yield various possible coalitions in the house, and a reduced rural veto.

Tory December 8, 2005 at 10:32 am

Put a hard limit on the size of the tax code. I would argue for tax forms no longer than one 8.5×11 page front and back, including all supplemental instructions (no referencing a seperate encyclopedia). If politicians want to tinker with the code, they have to find a way to make room for it on the form (probably by dropping something else). Forced simplicity.

Robert Schwartz December 8, 2005 at 11:28 am

1. Repeal the 17th Amendment, also 23rd (D.C. electoral votes, it is a rotten burough) and 26 (teenage voting, return the age of majority to 21).

2. Term Limits for the House and Senate. Its not that I expect a substantive change in either institution, but I think we are now held hostage to too many personal quirks and hobby horses. No more Robert Byrd, no more Teddy Kenndy. Let other fools take their places.

3. Maximum and Minimum Age limits for the judiciary. I am not in favor term limits, but I do think that they wear out their welcome. Also increase the minimum age for the President to 50. The ones we have elected who have been under that age have had problems.

Jason December 8, 2005 at 12:12 pm

Congress shall enact no law that is not Pareto Optimal…except in the case where special interest groups prove to be sufficiently persuasion.

joshg December 8, 2005 at 12:19 pm

#3. No Selective Service.

Nathan Zook December 8, 2005 at 12:29 pm

It will be a long time before I am convinced that multi-party republics are a good thing. Every substantial change in policy results in a real loss of investment in the status quo. Suddenly coal power is bad? Just build a new power plant, you stinking industrialist. Now oil is bad? Just build a new power plant, you stinking industrialist.

But a constitution which (accidentally) creates a two-party system is not one that creates a duopoly. The FEC’s purpose of exsistence is to adminster the abrogation of the first ammendment. Politians should be able to get on the ballot ONLY through petition. How the parties conduct their business (and select their cadidates) should not be the business of the states. Parties should have no legal advantage in the political process.

Repealing the 17th would be a help, but it would not get us back to where we were. States love greenmail because it relieves them of the responbilities for their actions. I really don’t know how to handle the federal-state money issue. There are important national policy goals which can have very uneven costs locally. (Think about all of the traffic we get in Texas due to NAFTA.)

Finally, a net value requirement for voting would straighten a lot of things out. (I came up with this when I was renting & poor) So would denying the vote to people who substantially live off the government dime, although this would be tough to administrate. (I came up with this when I was in the military.)

Neema December 8, 2005 at 1:06 pm

1) If Robert Schwartz wants to repeal the 26th Amendment, then I want this: “Robert Schwartz no longer has the right to vote.”

2) “The sixteenth amendment is hereby repealed.”

3) Still thinking…

Paul N. December 8, 2005 at 1:22 pm

The income tax doesn’t bother me that much, but what I wouldn’t give to be able to get some Langres or Epoisses in the U.S.

Stian Haklev December 8, 2005 at 1:33 pm

At least it’s great to see the Constitution as a live tool continually in use. In Norway, it is too much of a relic. Every time it is updated, they write the updates in the old language style, and it is not really considered a tool. Example: When we debated joining the EU, a prominent law professor said that our current constitution would not allow the transfer of sovereignty. He was not agains the EU, but said that we should do it properly – change the constitution. However, the politicians mostly chose to ignore this, thus removing even more relevancy from the document.

Mike Kimel December 8, 2005 at 2:08 pm

How about something intended to force everyone to internalize externalities? The problem with libertarians is that they don’t seem to care about how third parties get affected when someone does whatever they want on their property.

Marty Busse December 8, 2005 at 5:28 pm

1) Legislators may vote from their home districts, by writing down their vote on bill in front of a notary public, and then making the results public. (Kills the power of K Street, since they’ll have to disperse nationwide and live in places like Axe, Utah, in order to be able to get influence Congressmen: no more easy coommute on the weekend to Boston or NYC, either. This will also eliminate all non-roll call votes, so we’ll have a really good sense of who voted for what.Also makes it harder for a nuclear attack on DC to wipe out the government.)

2) From this day forth, no Supreme court justice can serve more than 10 years. Gets rid of the whole “let’s pick someone young who can check the other party’s platform for decades” effect.

3) Combine the votes of DC, overseas US territories (like Guam and Saipan) into a new “district” that will have a representaive in Congress whose votes count. (Also include the votes of any US citizen abroad in this district.) This will also erode the influence of DC bureacrats and government employees.

washcycle December 8, 2005 at 6:21 pm

1. Remove the Electoral College and replace it with a popular vote and automatic runoff. The Electoral College is mathematically flawed, antiquated and fails to accomplish the goal for which is was created.

2. Remove age and nationality restrictions. If people want to vote a 22 year old as their Senator, let ‘em. Is Madeleine Albright (not a natural born American) less trustworthy as president then Agnew was?

3. The Territorial Representation Amendment. Congress may make a territory, not part of any state, a Represented Territory. Each Represented Territory will have one member of Congress. All Represented Territories will share two Senators. Citizens in Represented Territories may vote for President. Only one Represented Territory may be smaller than the smallest State.

This will give full representation to DC and other US territories too small to be states. The last line means that Puerto Rico can have one representative, DC can have one and Guam, American Samoa, NMI, and The Virgin Islands have to share one.

Comments:

Why does Robert Schwartz wish to treat DC citizens like second class Americans? I’ll give up my vote if I can stop paying taxes and no one from DC ever has to die in the military.

US citizens living abroad already vote in their home states.

I don’t see how combining DC with other territories “erodes the influence of DC bureacrats and government employees.” Right now they have no vote in Congress anyway.

MarkJ December 8, 2005 at 8:36 pm

1) An amendment to end the abuse of the “general welfare” clause, limiting federal power only to the explicitly listed items in the constitution.

2) An amendment to end the abuse of the commerce clause, limiting federal commerce power to some very strictly defined small subset of what it is now.

3) An amendment to explicitly give states the power to seceed if a large enough proportion of their population desires it. This will hand a great deal of power back to the states.

We need to get back to real federalism, where a citizen has a choice among 50 possibly quite different American states to live, and each state can try out different approaches to the problems of the day. The federal government should be limited to a very small range of issues, such as national defence.

Mike Gomez December 9, 2005 at 1:32 am

I doubt the 17th Amendment will ever be abolished though the nullification of the anti-alcohol amendment gives me hope.

I recommend an amendment giving state legislatures redistricting powers for House of Representatives seats within their own states.

I also recommend an amendment giving state legislatures the power to raise or lower the pay of their Congressional representatives. It is nonsensical that we allow Congress to decide how much it is going to pay itself. Moreover, it gives states a great way to discipline their representatives.

Eric Rasmusen December 9, 2005 at 12:10 pm

Here are my 3. See my blog at http://www.rasmusen.org/x/archives/945#more-945 for a little discussion—

1. The Supreme Court shall meet in Peoria, Illinois, and justices may not own residences elsewhere. Justices shall sit for renewable four-year terms.

2. The Bill of Rights and the Fourteenth Amendment are hereby repealed, and all court precedents based on them are nullified.

3. All regulations issued by government agencies must be passed both houses of Congress and be subject to Presidential veto.

Michael F December 9, 2005 at 3:13 pm

I live on the coast and think we are fine at picking presidents. I say repeal the electoral college. Popular presidential elections with instant run off.

I like brock’s idea regarding electing congresregion, or interest group. While this is a hugely different way of s men and women, for the senate I would have 100 senators and each American votes for the 2 they most prefer. Senators would no longer represent a specific state allthough they could certainly campiagn in the interest of a state, doing things and probably beyond the scope of even a constitutional amendment I think it could have productive and fascinating implications.

Ken December 9, 2005 at 10:21 pm

I have thought a bit about constitutional amendments,
> but like you said in your post- only those
> constitutions that represent the majority thinking
> will not be ignored. I really only have two:
>
> 1. Restrict federal governments receipts to no more
> than 20% of the GDP, with a possible further
> restriction on local governments.
>
> 2. Restrict the federal governments deficits to no
> more than 5% of federal reciepts and to no more than 2
> consecutive years of deficits, with at least as many
> years of a balanced budget following the years of
> deficit. For example, if the federal government chose
> to run a deficit for two years, then at least two
> years of a balanced budget should follow before
> anymore deficits occur.
>
> These two have been going through my head for a couple
> of years, since I think that, while it’s important
> where the government gets its money, how much is even
> more important. Also, these amendments would have the
> added benefit of making politicians choose what the
> government should acutally be doing by prioritizing.
> While I know that there are hard choices to make for
> politicians, it seems like it’s either raise taxes to
> pay for a particular plan, or cut them and run
> deficits to pay for a particular plan.
>
> I don’t know how acceptable these would be to the
> public, particularly when they found out just how much
> less the government could do. Much of the problem is
> that people don’t understand the negative affects of
> relying on the government for services. And today
> people seem to think that the government is the
> cure-all for everything, when it seems evident to me
> that most of what the government does is inferior to
> its private sector counter parts.
>
> Regards,
> Ken MacDonald

wkwillis December 10, 2005 at 1:37 pm

Select the Senate by Sortation.
Sortation is when you just randomly pick citizens to serve as your government. The Greeks used it to pick their legislatures in some Democracies.
There are three reasons to pick the Senate by sortation.
1. Pork.
The dirty secret of pork is that it does not benefit most people in a state. Not only do people move in and out of states frequently, but most people don’t have investments that can be leveraged by pork. That Alaskan bridge to nowhere would only benefit the fifty people on the island, and whoever owns the land on the island that would be made commercially more valuable. That is how many people in the state of Alaska?
Ditto for farm subsidies and stuff. How many people in Kansas own a farm, or would care if getting rid of farm subsidies would decrease farm prices? Or wouldn’t think that decreasing farm prices would be a good idea so that more people could own family farms instead of being priced out by rentseeking corporations.
You also can’t bribe people by making campaign contributions. The sortationed citizen didn’t campaign this time and will never campaign in the future. How do you give him any kind of money? He’s not going to be a lawyer, usually. You could pay him extra money to paint your house or babysit your kids or serve hamburgers at a hamburger joint you own, but that’s kind of obvious.
Furthermore, the Senate would defund politics in the House. The House legislators would serve no purpose to a lobbyist for a pork project. What good would it do to get a bill passed stealing government money if it would just be rejected in the Senate anyway.
2. Moderation.
Parties get captured by a lunatic fringe that cares passionately about some brainwave and dedicate their lives to raising your taxes or restricting your freedoms. These people are going to be in the Senate, but only as a minority. In our Senate they are more like 90%. They wouldn’t have paid any attention to the Clinton trial. As far as supreme court justices go, would any of them have made it by 100 ordinary people like you? Which ones?
3. Wars. Senators can be rewarded or punished by the president, which is an important part of slipping wars by the Senators. These people would have had him on the carpet for every war we fought. Let’s not even discuss what 100 normal people would have done about being lied to from Johnson on Gulf of Tonkin, or Bush Jr. on Iraq. Lynch mob time.

theCoach December 12, 2005 at 11:02 am

1) amendment nullifying the second amendment
2) amendment establishing different voting systems (not sure on the details, but certainly the Red State advantage on Senators would ahve to be eliminated, and I would also prefer some different voting systems, or an amendment that made voting regualtions and rules subject to change by a Fed like body given some braod goals.
3) amendment guaranteeing healthcare to all citizens

rvman December 12, 2005 at 5:29 pm

1) Congress shall attach to all laws a section or sections describing the Constitutional authority for that law. If the courts find that that Constitutional clause does not authorize the law, it is void. (Maybe some of our elected representatives will actually read the thing which delegates them their power.)

2) Residents of the District of Columbia are returned, for voting purposes, to the State of Maryland.(Gives the people of DC the Representation they deserve, while eliminating the ad hoc stuff giving them Presidential electoral status.)

3) An Amendment authorizing Social Security, Medicare, and other ‘unconstitutional’ programs, in return for a clause specifying strict construction of the document as a whole. (People won’t go for strict construction if they think it will kill the popular stuff.)

æ°´æ— ç—• July 4, 2007 at 4:35 am
xdrs July 15, 2007 at 11:20 pm

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