Amend it, don't bend it

This past week I received a 'fat envelope' in the mail. It was from the Cato Institute. I'm sure I am on their list because of my world-renowned blogging and tweeting abilities. So I ripped open the envelope expecting some talking points or such, but out fell a little pocket-sized copy of the Declaration of Independence and the Constitution of the United States of America.

I have read both documents in the past, since they are both very short, just like my attention span (this little pocket edition with both documents is only 1/8" thick... compare that with the Obamacare bill which was over 4 reams of standard-sized paper.) I started thumbing through the booklet and I focused my attention on the amendments. Of course, the most famous amendments are the first ten, commonly referred to as the Bill of Rights but there have only been 17 more since the original ten.

I was really surprised by my realization that there have been very few amendments of substance. Most of the changes to the Constitution have been procedural. Let me explain.

First, a housekeeping item. I am NOT a Constitutional scholar, nor do I play one on TV. Our current president is a Constitutional Law Professor according to his statements and his C. V., but I never sat through one of his lectures, so I cannot vouch for him. Perhaps if I had sat through 20 years of his lectures (like he sat through Rev. Wright's sermons), I probably would be considered an expert, but I digress.

I can read, however, and most of the Constitution makes sense, even though it was mostly written almost 225 years ago.

Please note that when I say procedural, I mean that it changes the rules of the game, but doesn't fundamentally change the game, itself. This is important to my argument.

Allow me to run through Amendments 11-27 (you will like #27...) (By the way, the amendments are referred to by a Roman numeral, but I will use standard numbers for ease of reading.

11. The Eleventh Amendment is an odd one. It is procedural, in that it disallows the federal courts from hearing lawsuits brought against a state by another state, foreign country or by an individual. There are four broad exceptions carved out by the courts, but this one gets a P.

12. The Twelfth Amendment describes in excruciating detail how to vote for, and count votes for, President and Vice-President. Procedural.

13. The Thirteenth Amendment abolishes slavery and involuntary servitude. Passed in December after the end of the Civil War, it is definitely Substantial.

14. The Fourteenth Amendment is a rambling piece with five sections. It is Procedural in that its purpose was to ensure that freed slaves would be represented in Washington and that anyone born here would be a citizen. This would disallow freed slaves from being considered state-less, since they and their offspring were not previously considered citizens. The first Section is the most controversial and it does have the section that currently allows citizenship to be automatically bestowed upon "anchor babies" of parents who are NOT citizens. The original intent of that section seems clear to me. The-Asterisk score? .9 P and .1 S.

15. The Fifteenth Amendment ensured the rights of all people to vote regardless of race, color or prior condition of servitude. After abolishing slavery, it was implied that former slaves would have the right to vote, so this Amendment codified it. I give this one a P since it just clears up the intent of the Thirteenth.

16. The Sixteenth Amendment touches every one of us every day. It is the Amendment that allowed income taxes to be collected. Previously the federal government gained revenue from tariffs, surcharges and taxes on goods. With this new tax, they took just 1% from the most affluent Americans. Less than 100 years later, look how far we have progressed. Perhaps that is why they say the tax code is progressive. This Amendment is absolutely Substantial.

17. The Seventeenth Amendment directed that Senators are to be elected by popular vote, and also directs how vacancies will be filled. Prior to 1913 when this amendment was passed, Senators were appointed by the State legislators. With this amendment, the state governments (remember that the United States was originally a federal coalition of nation-states) lost all representation in Washington DC. I give this Amendment a P since it really is a matter of changing the rules without substantially changing the game (unless you are a state...)

18. This one is a two-fer. The Eighteenth Amendment was passed in 1919 and was repealed in 1933 by the Twenty First Amendment. As most know, this amendment abolished the manufacture, sale and transportation of intoxicating liquors along with the importation and exportation thereof. So, we couldn't make it, sell it, transport it, nor could we buy it from or sell it to other nations. These two amendment are very Substantial.

19. The Nineteenth Amendment gave women the right to vote. Actually, it said that rights to vote shall not be denied or abridged on account of sex. Substantial.

20. The Twentieth Amendment has six sections. Basically, it moves the end of the Presidential term to noon on January 20 following the election. It also stipulates when Congress assembles and addresses various issues on succession and qualifying a President and Vice-President. We almost road-tested this one in 2000 with Bush v. Gore. Procedural.

21. See 18.

22. The Twenty Second Amendment limits a President to two terms in office. Procedural.

23. The Twenty Third Amendment gave the voters that live in the District of Columbia a voice in the Presidential election by apportioning electors to them. Procedural

24. The Twenty Fourth Amendment forbade denial of the right to vote because a voter could not or would not pay any Poll Tax. Procedural.

25. The Twenty Fifth Amendment further clarifies the terms of succession of the President by the Vice-President because of death or incapacitation. Procedural.

26. The Twenty Sixth Amendment gives the right to vote to citizens 18 years old and older. Substantial.

27. The Twenty Seventh Amendment should have been the Eleventh Amendment, but it was never ratified. So, in 1992, this amendment which states that no law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened. Procedural.

So... what is The-Asterisk's score for the 17 constitutional amendments since the Bill of Rights were ratified? 4.1 Substantial, 10.9 Procedural and 2 were a wash. AND, of the 4.1 that were Substantial, 2.1 had to do with allowing more citizens to vote.

Bottom line: after 221 years of existence, there has been only three significant, substantial changes to the basic law of the United States; the end of slavery, the introduction of the income tax and the prohibition of liquor (and this one was repealed.)

I think this fact proves that as a whole, our nation is pretty happy with the Constitution as written, but even further, proves that significant change (no matter how fair-minded the change) is hard to adopt. We can all point to silly laws and absurd bending of the Commerce Clause to show how ridiculous our legislators can be to get around the spirit and the letter of the pesky Constitution. So, why can't we just stick to the Constitution as intended, or change it if it is really needed? Theoretically, we can.

Theoretical is messy, however. Just ask Dr. Rand Paul, GOP candidate for Senate in KY. He had to pick the Civil Rights Act of 1964 as the example to make his point about federal intervention into private business, didn't he? He states that the part where the law forces a totally private business to allow any person to interact with it is wrong. He is either crazy or crazy like a fox. The left brands him a racist and the right steps back a few paces, but his message spreads like a virus across the fruited plain. (Note: Dr. Paul will learn quickly to answer questions with non-answers and to obfuscate those answers he must give. His candor was great while it lasted.)

That law makes my point... judges (and nice people in general) want to do what is 'right' in spite of the letter of the law. They make this ruling and that ruling, bending and twisting the words just a little bit each time "because it is the right thing to do."

But then one day you look at 'settled law' and instead of it being like a big, fully formed tree, you have a bonsai... twisted, shaped, contorted and clipped. Imminently pruned and roots restricted to a tiny container, this is the best way to control the scope and direction of its growth.

Lawyers (and most legislators are lawyers) have funny ways of looking at situations. On one hand, a lawyer will say that current law is insufficient or that his case was never imagined when the law was written, so the law needs 'interpretation'. On the other hand, they will defend axe murderers, child rapists and terrorists because these people deserve their day in court "as it is written", regardless of the effect on the greater society. So what, if Osama Bin Laden gets acquitted... that's the law, right?

I bet you are all thinking... "OK. Nice history lesson and commentary, but get to the point" So, here is my point:

In almost 225 years there has been only two fundamental changes to the game (the Constitution); abolition of slavery and allowing the income tax. That's it. Every other move away from the rather obvious intents of our Founding Fathers has been through unchallenged laws or through Supreme Court and Federal Court rulings or interpretations. The left always says that the Constitution is a living, breathing document, and it is. It is just that the framers baked in a way to modify the Constitution and it is called the Amendment process. As we have seen, rarely does a substantive amendment take place. Why not? I believe it is that Americans largely subscribe to a "If it ain't broke, don't fix it" mentality.

And obviously, it ain't broke.

So, if we feel that we have outgrown aspects of the Constitution or that the Constitution does not address certain things, then FIX IT THE RIGHT WAY. If a majority of Senators and Representatives believe that it is the Federal Government's role to create an education framework and to fund pre-school, primary, secondary and college-level education, then FIX IT THE RIGHT WAY. If a majority feel that the Federal Government should provide health care to all citizens and illegal aliens, then FIX IT THE RIGHT WAY.

The framers set the bar pretty high for a Constitutional Amendment (two-thirds of both Houses or conventions in two-thirds of states to propose, and three-fourths of either to ratify), but in over 200 years, only four substantial proposals have been ratified into the Constitution and I think I know why. Not enough people want the majority of the laws we currently have on the books and the politicians are afraid of the result they would get if they did the right thing and asked to change the Constitution. Like the saying goes, it is better to ask for forgiveness than to ask for permission.

My mantra for our Constitution:

Amend it, don't bend it.


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