An Item To Be Considered At The Next Constitutional Convention

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43 Responses

  1. Cathy Smith says:

    Very interesting idea. For another in a similar vein, check out http://elneil.rationalreview.com/

  2. Ken says:

    Fascinating. And the checks and balances are built in, as the Congress can simply approve the law again for another five or seven or ten years. In a way, it's sort of like at-the-discretion-of-the-House-of-Repeal term limits for federal laws.

    Complications: What is a "law"? These days one of the most pernicious elements of federal lawmaking is the tendency to package unrelated issues into one bill, usually to pork it up, or to thwart it, or to gain supporters. Does the power of the House of Repeal act like a line-item-veto, where it can excise portions of a bill? That's appealing when it is excising, say, a law banning assault weapons that is buried in a bill that's mostly about the national budget. It's not appealing to the extent that the House of Repeals can alter the effect of a law — or even of a statutory scheme — by excising a single subsection or clause or sentence. Of course, again, the check and balance would be Congress passing that clause or sentence again.

    I'll have to think about it more.

  3. Windypundit says:

    I think the five-or-ten-year delay is problematic too, because some bodies of law—tax and regulatory stuff—change every year.

    Maybe don't have them actually repeal the laws, but instead negate the effects of the laws. E.g. they have the power to reduce or remove criminal and civil sanctions. So they could "veto" parts of a law, but the changes would all have to be in one direction.

    If we're going to swing for the fences, how about selecting the members of the House of Repeals by lottery from among all voters? They'd be a statistically valid representation of America, and it would be harder to game the system through lobbying or election tricks.

  4. Patrick says:

    I'm pretty sure Heinlein advocated election by lottery in one of his books, Windypundit. I'd certainly support it, for this purpose.

    Hell, I'm pretty sure 535 random nobodies couldn't be worse than what already occupies the present Congress. William F. Buckley's comment about the Boston phone directory comes to mind.

  5. Ken says:

    As long as we're taking suggestions from genre fiction, I rather like L. Sprague DeCamp's idea from The Unbeheaded King. Chop off a Senator's head every six years, throw it to the crowd, and give the senate seat to whoever catches it.

  6. rmtodd says:

    Have you ever read Diane Duane's novel Spock's World? In there we learn that the planetary legislature of Vulcan has a third house entirely devoted to repealing laws, just like you suggest. I've always thought that suggestion eminently logical.

  7. Noble says:

    Believe it or not (okay, probably not as hard to believe as I fantasize), I am not all that good at ferreting out dirty tricks and system manipulations, but I've always daydreamed about a "conservation of laws" law.. something along the lines of, for each line of text that becomes law, at least one line of old law has to be repealed, at every level of governance up to and including corporate policy. Economics has made everything else on this planet a scarce commodity, why not legal code?

    Of course, this would result in good laws being replaced with bad laws, exemptions being shredded, etc, etc… but I can't stress how incredibly unfair it is to be subject to more pages of laws than I could read in my lifetime.

    My other atrocious idea for legal reform was: if the law is too long to Tweet, it is thrown out.

  8. Noble says:

    You could call it "cap and trade" for lawyers, if you prefer…

  9. Reuven says:

    Ok! This is a nit that has nothing to do with your main topic, but the death penalty for "child rapists" is a TERRIBLE IDEA. I probably dislike child rapists as much as the next guy, but if this were the law, someone might as well kill a child after raping him or her.

  10. How about we just start with repeal of the 17th Amendment? At least then we'd have a Senate accountable to the state legislatures, who may not be so happy about giving the Feds more and more power.

  11. I believe the ancient Romans would have called such persons "Expurgators" or, more likely, "Censors." We might want to re-think that terminology today.

  12. David Schwartz says:

    Reuven: I don't think child rapists respond very well to incentives. They don't reason out their actions the way you imagine they do.

    Think about it. No matter how much a rational person might be attracted to a child, they're just not going to commit the kind of violent rape of a child that would expose them to the death penalty.

    And, to the extent they do respond to rational incentives, how do you know which effect will win in the balance? Many rapes might be avoided simply because the perpetrator is not willing to commit murder or risk their own execution.

  13. Patrick says:

    Transplanted, as you say, Censor is a tricky term today. Not to mention that the Censor had duties ranging beyond wiping bad laws off the books, such as stripping the unworthy of their citizenship, and purging the Senate of …

    Well, we don't have a politician of Cato's wisdom anyway.

  14. Chris says:

    Is there any particular reason you think the senate has had better composition, on average, in the past than it does now? Sure, we can name remarkable senators from the last 200 years, but there have been a lot of senators that were unremarkable to bad and have faded into history.

  15. Chris says:

    I should probably have added a paragraph instead of another comment….

    I think it's a solid idea. You would have to work out the mechanics – how finely grained of a removal can be made, what happens to later modifications of a law if you repeal a law that modifies a law,etc. If there were a state version of this, I'd think about running for it.

  16. Patrick says:

    There were always bad senators Chris, but today they're perhaps not as ashamed of their mediocrity as they once were, nor are they controlled by their betters. Look at a Lisa Murkowski, or a Maria Cantwell (I'm picking on women here, but both are genuinely unworthy) and tell me that standards haven't fallen.

    Look at a John Ensign, or a Christopher Dodd, and tell me that standards haven't fallen.

  17. I really like this idea, but it's not as bulletproof from SCOTUS as you think it is:

    repeals by this authority would not be subject to judicial review (except to the extent it exceeded its powers by interpreting or repealing the Constitution)

    That parentheses gives the game away. If the Supreme Court can interpret the "commerce clause" as giving the DEA the power to seize medical marijuana, it can interpret any decision it doesn't like by the New Camerate as exceeding its Constitutional powers.

    Justice Scalia will just have to suck it.

    Sadly, Justice Scalia will not have to suck anything he doesn't usually suck.

  18. ME says:

    It'll never happen, and never should.

    This is an example of the phenomenon where someone sees a problem and fixes it by creating something completely new, rather than going back and fixing the actual source problem. You know, the same way Congress does it.

    In other words, creating a completely new Constitutional branch or body to correct the excesses of the existing branches, particularly their tendencies to overlegislate by adding laws instead of repealing or reworking existing law, is ironic at the least.

    Restore the full filibuster for starters. Give Congress some teeth on restricting judicial review. That's a better start than an inconsistent, new body of government officials and an addition to an already bloated bureaucracy.

  19. Patrick says:

    And I should point out, from my perspective, that this notion derives its power from a number of state laws. Consider New York's Rockefeller drug laws, which any thinking person agrees have proven to be failures in which a few poor drug users, seemingly selected at random as in Shirley Jackson's The Lottery, are all but strung up as sacrifices to the gods, but no one in New York's legislature will do anything meaningful about them, because they don't want to be known as soft on drugs. Or consider Birmingham Alabama's ridiculous "blacks and whites may not play checkers together" law, which was still on the books in the 1980s, though it wasn't enforced.

    Or in my own state, consider that we still have sodomy and cohabitation laws, which are rarely enforced (in some cases can't be enforced), are enforced arbitrarily when they are enforced, and which most of the voters don't support if you ask them. Yet no one will move to amend or abolish them, because no one wants to be known as the "pro-sodomy" or "pro-living-in-sin" candidate, even though millions of us do it, even if it's for something as harmless as a prelude to marriage.

    Obviously the idea needs work, but what would be wrong with having a review of the laws, especially at the federal level, where almost no one knows what they are? We're so encumbered by law that even lawyers, in malpractice cases, can defend themselves with the excuse that the law is too confusing.

  20. Patrick says:

    Restore the full filibuster for starters. Give Congress some teeth on restricting judicial review. That’s a better start than an inconsistent, new body of government officials and an addition to an already bloated bureaucracy.

    The problem is that Congress has those powers. The Senate could restore the original filibuster. Congress could restrict judicial review (it did in the Anti-Terrorism and Effective Death Penalty Act – a misbgegotten cosmetic reform that increases the chance of innocents being executed).

    But as to repeal, Congress almost never exercises its power. Think of the law as a body. If the body develops a tumor, the Congressional solution is to ignore it, or to graft skin over it, when what's needed is surgery, excision and removal.

  21. James Manley says:

    Why not just repeal the 17th Amendment and go back to the original plan?

  22. Tanarur says:

    It's never going to happen. If there ever were another Constitutional Convention, the likelyhood of something emerging from it being an improvement on the current document is unthinkable. Given the general lack of education and intelligence in the public at large, and the dominance of the sort of moral and intellectual gnats in "public life" that the author rightly points to, I think the likelyhood of something far worse and more than likely unworkable coming out of the process to be not worth the risk.

  23. Jason Uphoff says:

    I am sympathetic to the concern about the poor quality of our representatives, and to the smothering effect that expanded government in general has on our freedoms, yet I am not convinced we need to add yet another group of representatives who will inevitably become corrupted and bloated as badly as the current crop. I think the Founding Fathers intent was for government to be deliberate, that is careful, slow, and with great thought, when they went about making laws. This obviously is not the case with our representative, the sheer amount of law that is proposed precludes any deliberation, so let's make simple changes like requiring every representative to sign a statement swearing that they have fully read every piece of legislation before they vote on it. This would have the effect of slowing down the process and also slimming down the ridiculous language and whereas clauses that enlarge and complicate law. As to the executive branch with all of it's oppressive regulations, we need sunset provisions that require revisiting all regulations every 2-5 years, which should also have the effect of slimming those down as well.

  24. Jcrodden says:

    One of the comments mentioned Robert Heinlein. He mentions a third house devoted to repealing laws – an Anti-legislator house – in one of his novels (The Moon is a Harsh Mistress) and again in his Citizen political strategy book – "Take Back your Government". His idea was also intriguing because he thought that a law could be repealed by as little as a one-third minority in this new house. The idea was that if as many as a third of the US citizenry (quite a lot of people – more population than some nations) considered a law to be bad, shouldn't that give us a reason to abolish it. It would also give pause to legislators before passing laws that they knew would have to be pushed down the throats of their constituents.

  25. Grandy says:

    Patrick, I'd be inclined to tie this into "Adulthood" as we've discussed it here before. So you would have to enter into that status willingly to be eligible to serve.

  26. E.D. Kain says:

    Patrick, this is fantastic stuff. Thanks.

  27. Patrick Carroll says:

    We need Bureau of Sabotage.

  28. brian says:

    Bravo. I recall reading in some book on the founders that Jefferson had a similar idea – set all laws to expire some number of years (17?) after enactment. Madison or Monroe talked him out of it, apparently. Congress would of course only bother to re-enact laws important to them at the time. No extra governmental body needed. Not gonna happen, of course…

  29. Hucbald says:

    I love this idea, but I'm also with the above commenter who advocates repeal of the 17th amendment so that state legislatures appoint senators.

    Here's what I have thought about over the past three decades of watching America's increasingly bizarre political Kabuki rituals:

    1] Voter Qualification, Home Ownership (Condo or Townhouse fine) – outright ownership, no mortgage. Every citizen should be able to reasonably aspire to vote, but allowing any 18 year old to vote is democracy, and democracy is rule by fool because the masses are asses. Home ownership isn't based on IQ or education, just success.

    2] Disqualify anyone with a law degree from serving as a judge or legislator, because it's a conflict of interest for lawyers to judge the law, or make the law. The system we have now is a racket: Lawyers make the law, judge the law, prosecute the law, defend us from the law, and oversee it all through the Bar Association. Limit lawyers to the adversarial part of the process where they belong. They have absolutely no business anywhere else.

    3] Re-empower Juries: Long ago juries could decide whatever they wanted, and not just what an interest-conflicted lawyer-judge instructed them that they could decide. Including, by the way, that the law in question was unjust and should be stricken from the books. We need to get back to this to break the monopoly lawyers have on the American legal system.

    4] A limit of two terms for every elective office. This would be like the military's "up or out" promotion policy for officers. A potential two terms in each state legislature, followed by two terms in each national legislature, followed by two terms as VP and then two terms as president ought to be a long enough political career for anyone, and only the very best could do it. Much of our political mediocracy is due to the power incumbents have to remain in office.

    Oh, and I really like that the Vulcans have this third deliberative body. LOL!

  30. Ken says:

    Hucbald:

    1. Of the many things I could say about the home ownership requirement, I will say only this: Paris Hilton probably personally owns dozens of houses.

    2. I'm not sure how judges can be competent if they are not lawyers — unless you are suggesting that judges would go to law school but never be practicing lawyers. It's true that much of what I do is not rocket science. But it does require facility with the law. The day your government comes to take your guns away, and you want to make an argument based on the Second Amendment, do you want someone who has never heard of incorporation to review your case?

    3. Juries have, de facto, the power to nullify. Right now. And they do. Any prosecutor, and any defense attorney, will tell you that. It's not always pretty, either, as any study of the civil rights era will tell you.

    4. I'm not convinced term limits are all good, but they are certainly worth discussing.

  31. Patrick says:

    A lot of people own homes they can barely afford today, or can't afford. A lot of smart people (cf the author of Crime & Federalism) decided to stay out of bubble real estate markets, and are the happier for it.

    The postcolonial emphasis on landed franchise had its roots in English feudalism and later the gentry. It derives from a time when land was virtually the only valuable property one could own, apart from ships and slaves. Whereas today, the most valuable properties one can own are intangible: patents and copyrights.

    I'd stick with a universal franchise, though I wouldn't mind seeing it revocable for things other than felonies.

  32. Tom Cuddihy says:

    I like this idea.

    I think another key idea is limiting the current preferred approach of the statists, meaning the judiciary. I can think of a good Judicial Restraint amendment that works within our current system:

    "This constitution is the supreme and constant law of the land binding these united states and limiting its federal government. Federal judges shall interpret this constitution and federal law consistent with its original meaning and limits. The states shall have the authority to enforce this by power to void judicial decisions and remove federal judges who interpret this Constitution in a manner inconsistent with original meaning and intent.
    1. Any federal judge that takes affirmative part in a majority judicial decision that is later voided by the states shall be subject to removal at the conclusion of the current congressional session.
    2. A judicial decision shall be considered to be voided when a simple majority of the state legislatures have passed a resolution with specific wording to appeal a judicial decision as identified by case name and the name of the court where the decision was promulgated."
    3. No federal judge shall serve a term from the ratification of this amendment of more than 17 years. No former or sitting federal judge shall be eligible for election to the senate or presidency of the united states.

  33. NighttSapper says:

    WHy nto somethign simpler? Constitutional amendment: ALL LAWS EXPIRE 5 YEARS AFTER THEY GO INTO EFFECT. TO CONTINUE THE LAW MUST BE PASSED, AS_IS, IN EACH HOUSE NO MORE THAN 9 MONTHS PRIOR TO ITS EXPIRATION. LAWS THAT ARE UP FOR INITIAL RENEWAL MUST ACHIEVE a 60% SUPERMAJORITY IN EACH HOUSE. RENEWALS SUBSEQUENT TO THAT ARE ALLOWABLE BY A SIMPLE MAJORITY IN EACH HOUSE. ALL VOTES FOR RENEWAL WILL BE NAMED AND RECORDED VOTES (no voice votes allowed). ALL LAWS UP FOR RENEWAL MUST BE SUBMITTED TO THE ENTIRE BODY OF EACH HOUSE (no bottling it up in committee).

    Couple that with a law banning these massive omnibus bills, and you fix the system.

  34. Jason Uphoff says:

    I am all for sunset clauses but why not keep bad laws from being passed in the first place? We need to require that all members be present during a complete reading of all bills in order to cast their vote. They need to be in the chambers for the entire time the bill is read with breaks if necessary. This will ensure that they eliminate all the unnecessary crap in a bill, and just get to the point. This would either greatly reduce the number of bills passed or reduce the time available for members to take junkets and other unnecessary trips. If we accomplished either or both of those things, it would be a good thing for the taxpayer and then we might actually be getting our money's worth out of our reps.

  35. The best thing to do would be simply repeal the Seventeenth Amendment. That would go a long way towards getting people interested in the goings on with their state and local governments, and insure more active participation in state elections. Mainly, it would once again give states their rightful place in forming national policies. "The People"(tm) already have the House.

  36. E.Z. says:

    NighttSapper has the right idea here (though we'd need a lot of debate to work out the details). Another governing body (as Jason points out) will eventually just become corrupt and/or stupid. But a simple amendment (preferably retroactive) to add a sunset clause to all laws would be less subject to the natural chaos that comes from a body of human beings with conflicting interests. I'm sure we'd see people gaming even this system, but at least with a simply written rule most everyone would understand *how* the system was being gamed.

    To reduce the overhead for renewing old laws, I'd propose that each subsequent renewal of a law adds five years to the sunset clause for it (law passed – 5 years; 1st renewal – 10 years, 2nd – 15 years, etc). For past laws, we stagger their sunset clauses by the year they were passed so we don't have to review them all at once. Constitutional amendments (and the original constitution itself) are exempt.

  37. Tom Cuddihy says:

    There are tons of ideas out there, but they all boil down to — restore the intent of the framers. To me, that comes down to one thing: limiting the power of the federal government. Repeal 1913. That was the year of the income tax, the federal reserve, and the 17th amendment.
    Add in a sunset clause, a bill-length limit (I like the rule that in order to vote aye on a bill the member must be present in the chamber while the bill is read aloud in all parts), and term limit for congress and the judiciary and we're halfway ther.

  38. marty says:

    In several of my favorite novels by Frank Herbert there is an agency call Busab (Bureau of Sabotage) whose sole purpose is to slow down the wheels of government.
    See the wikipedia entry on this and see if it does not pertain to what we are seeing in government today: http://en.wikipedia.org/wiki/Bureau_of_Sabotage.

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