“The Congress…on the Application of the Legislatures of two thirds of the several states, shall call a Convention for proposing amendments….” [My italics.]
The issue of an “open” or “limited” convention, will likely be a key point of contention long before an Article Five convention is ever held. The trend of the twentieth century has been to get 34 legislatures to apply for a congressional call for an Article Five convention to propose a single amendment—be it for direct election of U.S. Senators, gender equality, or a balanced budget. But, is it constitutional to limit the number of amendments proposed at an Article Five convention? A plain reading of Article Five indicates that any limit would be inconsistent with its language (“a Convention for proposing Amendments”) and, if called by Congress, would be ruled unconstitutional by the Supreme Court. It would be disheartening, for example, to obtain the applications of 34 state legislatures to Congress to call an Article Five convention for one proposed amendment (e.g., to remove private money from public elections), only to have the Supreme Court rule that the subject matter or number of issues cannot be limited and, therefore, an Article Five convention cannot be called to propose an amendment or amendments limited to a specific subject or issue. A practical reason for not limiting the number of proposed amendments is the sheer cost of holding a constitutional convention—both to state and federal government. My hunch is that Americans would complain mightily about the cost of a convention convened to deal with one or two proposed constitutional reforms.
Those against an open Article Five convention will likely argue that an open convention means a “runaway convention.” Their argument has a huge historical precedent. There was no legal basis in 1787 to call a convention to create a new constitution to replace the Articles of Confederation. Consequently, to many, the Constitution was the product of a “runaway convention.” Not a bad result but not a good comparison. In the heat of the argument it is forgotten that each amendment passed and submitted for ratification by an Article Five convention must be ratified by 34 states. Thus, the results of any “runaway convention” can be checked by a cumbersome ratification process involving a minimum of fifty separate political gatherings with the participation of several thousand elected delegates and representatives. Of benefit to constitutional reformers is that many single-cause issue supporters and advocates will lend support to the call for an open convention. Unless their issue has a chance to be heard at an Article Five convention, many activists will not join the Article Five effort. Since it will take a herculean effort to achieve an Article Five convention, there will have to be hundreds, even thousands, of groups with single-cause constitutional reforms joining together to support an open convention where all single-cause constituencies will have the opportunity to be heard to make an impact.
The more issues subject to reform at an Article Five convention will increase awareness of these issues to the public. Increased awareness of numerous constitutional issues will lead to the involvement of greater numbers of citizens and organizations, thereby increasing pressure on their state legislators to call for an open Article Five convention.
We begin our list of recommendations for proposed constitutional amendments by prioritizing four proposed amendments. We believe that passage of these four proposed amendments was necessary in order to have a fairer and more accountable representative democracy. These four proposed amendments, if passed, will prohibit private financing for public elections, repeal the Electoral College, prohibit the filibuster or cloture rule in Congress, and abolish the presidential veto.
- Prohibit private financing of public elections
Getting private money out of public elections is the reform most needed if we are ever to achieve a fair and meaningful (elected by “all the people”) representative democracy. The inherent unfairness and conflicts of interest created by a public electoral system that allows the infusion of private money into campaigns, skews the electoral results, affects congressional procedures and voting, and effectively eviscerates a democracy of the people.
- Repeal the electoral college
If Americans had a true, popularly elected democracy, the president would be elected by a majority of the popular vote and not by an Electoral College, a misconceived anti-democratic process. Has the existence of the Electoral College ever damaged America? That can be answered with one fact and two rhetorical questions.
Fact: Al Gore won the popular vote for president in 2000.
Q: Would President Gore have denied the existence of global warming while advocating and achieving tax breaks for fossil fuel companies?
Q: Would President Gore have initiated a war in Iraq?
Prohibit the filibuster or cloture rule in Congress
Based on the Senate’s record since 2006, there is very little legislation of substance that has passed, due to the alarmingly high number of times the filibuster or cloture rule (requires sixty votes to pass bills) has been used by the minority party. Another influence of the cloture rule has been its use as leverage (i.e., the threat of a filibuster) to get a bill with provisions more favorable to the minority position. What happened to the practice of “majority rule” in a democracy and why aren’t more citizens and groups outraged with this blatant transgression of a citizen’s right to power? Note that the prohibition would extend to both houses of Congress and not just to the Senate. Leave no open doors.
- Abolish the presidential veto
Why should one person ideologically bound and out of touch with the will of the majority, be able to thwart the majority vote of 435 representatives and a hundred senators? The presidential veto is a leftover anti-democratic weapon of Caesars and kings and regal wannabes, and no longer has a place in meaningful representative democracy.
The American political system is intended to work with checks and balances designed to curb the power of any of the three branches of government—not to thwart the will of the people.
Following are some of 2concon.org’s proposed constitutional amendments that deserve mention and support.
- Abolish capital punishment
Executions have been unfairly and arbitrarily applied. Witness the number of African-Americans and Latino-Americans, compared to whites, sentenced to death. Compared to other ethnic groups, black and Latino defendants have been disproportionately executed and, therefore, denied equal protection of the law. The Declaration of Independence states that all of us have the right to life. Why is it so easy to deny a fundamental right?
- Add the rights of the Declaration of Independence to the Constitution
The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to disparage or deny others retained by the people.”
The direct, simple language of the Amendment makes it clear: There are rights beyond those stated in the Constitution. Does it make sense to continue ignoring the rights of the Declaration of Independence—rights that revolutionary Americans fought and died for?
Only one of nine rights referred to in the Declaration is stated in the Constitution—and even that one has been diluted. Of what value are rights that are dormant, unknown, or ignored?
Nearly all of us are familiar with the rights to “Life, Liberty, and the Pursuit of Happiness.” But how many can name six more rights mentioned in the Declaration?
Most are aware of the right to Equality. (“All men are created equal.”) Fewer are aware of the right to Democracy. (“…governments are instituted among men, deriving their just powers from the consent of the governed.”) Fewer still are conscious of the right to a government based on human rights. (“That to secure these rights, governments are instituted among men….”) Additionally, the rights to safety and happiness are asserted as foundational rights of any new or reformed government. Finally, the right to “alter or abolish the form of government” when it becomes destructive of human rights goals, is a way to escape from tyranny, neglect, or even institutional ineffectiveness.
Let us imagine for a few moments how society might have been different if certain rights of the Declaration had been a part of the original Bill of Rights and ingrained into the fabric of our laws, our education, and our culture since 1791.
If there were a constitutional right to safety, would the levees have been properly maintained to hold during Hurricane Katrina? Would the Clearwater Horizon Oil Spill have occurred had there been stiffer safety regulations? Would there have been a Newtown Massacre had the Second Amendment been argued and interpreted in the context of the right to public safety? Would 9/11 have happened? Would Plaza Towers Elementary School in Moore, Oklahoma, have had a safe room when the EF5 El Reno Tornado struck and killed seven children? Would universal health coverage exist today in the United States?
If there were a constitutional right to equality, would there continue to be a gap between men and women’s salaries for the same work?
If there were a constitutional right to democracy, would there be a filibuster/cloture rule in the Senate? Would numerous states have voter suppression laws?
If there were a constitutional right to life, would there be capital punishment? Would Americans have been involved in fewer wars?
If there were a constitutional right to the pursuit of happiness (with pursuit of happiness meaning educational rights), would there be the right to a post-secondary education? Would student loans be interest-free? Would there even be student loans?
If there were a constitutional right to happiness (with happiness meaning individual and societal balance), would government spending be more evenly distributed among social, educational, security (economy, environment, defense, and public health), and cultural sectors of society?
If there were a constitutional right to alter or abolish the form of government when it is ignoring or not securing people’s rights, would it be so difficult to amend the Constitution? The residuum of that right exists in Article Five of the Constitution, which establishes demanding requirements for amending it. However, as challenging as it is for the people to amend their Constitution, Article Five reminds us that we are a free people, and with a unified effort, we are capable of achieving our societal goals in the manner of our choice, consistent with human rights values.
These are but a few reasons for being respectful and in awe of the Declaration of Independence. I think we will see substantial long-term beneficial impact to our society if the Declaration’s rights become recognized as constitutional rights, rather than neglected ideals of the American Revolution.
- Provide twelve-year term limit for all federal judges, including justices of the Supreme Court.
A lifetime appointment is too much power and influence for too long for one person.
- Provide twelve consecutive years of service term limits for members of Congress.
Require a two-year or four-year gap before a member forced out by term limits can run again for Congress. A gap of service, rather than a total prohibition, would allow truly skilled and dedicated politicians to return to elective service. (We could do the same for the presidency or any elected office.)
- Federal elections shall be held in accordance with federal laws and regulations.
Such regulations would be drafted to expand voters’ rights consistent with the right to vote. Although the Constitution does not acknowledge the right to democracy, the Fifteenth Amendment states that there is a right to vote. What meaning does the right to vote have if voting procedures are not consistent with democracy? What has happened to the governmental responsibility to encourage democracy? Anti-democratic voter suppression has been a huge democracy issue since the institution of slavery. Let’s put it back into the poison politics bottle and cap it one more time.
- Provide that congressional districts are to be created by independent state commissions.
Florida’s manipulation of the 2000 presidential election remains one of the great historical travesties of the American electoral and political process. We can use the California example of congressional redistricting, and reestablish the principle of “one person, one vote.” Democracy is a meaningless concept when congressional districts are created to favor one political party over another.
- Only Congress has the power to make and declare war by a two-thirds (or three-fourths) majority vote of each house of Congress.
This proposed amendment provides that the decision to take actions generally designated as acts of war or a declaration of war cannot be delegated to the president, but can only be authorized or declared by a two-thirds or three-fourths vote of each chamber of Congress.
- Only individuals have human rights.
This proposed amendment would not be necessary except that the Supreme Court has stated that corporations have rights. Neither a state, corporation, or any kind of imaginable group has rights. There are only individual rights. Let’s get this right. (An amendment to abolish corporate personhood was one of the big issues with the OWS movement in 2011.)
- The federal government shall provide universal preventive and comprehensive medical, mental, vision, hearing, and dental health care to all persons with the government as sole provider.
Vision, hearing, and dental care should be added to medical care based the common experience of having qualified for Medicare, only to find out that there is no coverage for hearing aids, dental work, glasses, or contact lenses. We consider these items to be health, safety, and survival related items and believe they should be covered. I reject the idea that medical care is the responsibility of an employer. I believe it is the responsibility of all of us (government). To save costs, Americans need a sole-provider national healthcare system. There will come a tipping point where we will no longer be able to afford the services of insurance companies in order to sustain universal, affordable, and competent healthcare.
- Provide for the right to know
An authentic representative democracy depends on an informed citizenry which, in turn, depends on open government. A proposed amendment should provide that the policy of government of the United States is openness and transparency in all matters. Further, if government seeks to limit openness by censorship, secrecy, or suppression of evidence, any limitation can only be approved by a federal judge upon clear and convincing proof of a significant threat to national or public security–subject to annual review if any restriction is approved by the court.
- Provide that education is a lifetime right.
- Isn’t it amazing that the Supreme Court has not yet held that education is a fundamental right? We believe the right to education is a fundamental rights corresponding to the right to the pursuit of happiness. Because of continuing rapid changes in technology, education should not be considered something that has a completion. As such, all public education, including lifetime continuing education and higher education, should be free.
- Legalize marijuana.
The legalization of marijuana in Washington and Colorado in 2012 only makes it apparent that the product is increasingly becoming a part of interstate commerce and should be regulated in a manner similar to alcohol. Let all jurisdictions tax and regulate the sale of marijuana accordingly so we can end this particular battle of our long-running culture war. From a moral perspective, the disproportionate number of arrests of blacks compared to whites for possession of marijuana adds an undeniable racial element that shouts out the unfairness of continuing the criminalization of marijuana. Let us desist from ruining any more lives based on laws that infringe on our right to liberty. There are two other proposed amendments placed before you because the individuals who will benefit most from the proposed amendments do not have much of a constituency. Consequently, their issues do not receive widespread support. The proposed amendments affirm those higher qualities of mercy that each of us has within us and add to our collective humanity.
- Felons and ex-felons shall not be prohibited the vote.
Felons and ex-felons are citizens and their political status should not be altered because of criminal law convictions. By taking away the vote from felons and ex-felons, we perpetuate and add to their disaffection and alienation from ordinary people and society.
- Abolish slavery for convicts.
The Thirteenth Amendment abolished slavery and involuntary servitude “except as a punishment for convicted felons.” That’s right. Constitutionally speaking, convicted felons are slaves. This overlooked anomaly would be a national embarrassment of political incorrectness if more citizens would actually read their Constitution. Hey, citizens and teachers of citizens, wake up! Section 1, which abolishes slavery for some and retains it for others, is only one sentence long. Is it too much to ask of us as citizens to take time to read each provision of the Constitution at least once, while questioning the common-sense meaning of the words?
- Provide that Americans residing in U.S. territories and commonwealths are eligible to vote for president and vice president.
Until Island-Americans have the vote, they will remain second-class citizens.
- Establish a national board of oversight.
We must improve government accountability. There is a low-cost solution with workers possessing both the skill and wisdom to help improve government competency, efficiency, fairness, and even friendliness. We have millions of elders with billions of hours of life experience who could be of great benefit (with minimal cost) to our government. Let our elders—volunteering their time and energy, working only for expenses—sit as members of constitutionally established oversight boards for all federal governmental entities (including the CIA); both large and small. A national oversight commission could draw up standards for the oversight boards.
- Provide for the right to a safe and clean environment.
This is more of a safety or health issue and should be immediately and increasingly addressed, with legislation considering the consequences of climate change. However, until there is a right to a clean and safe environment, Congress will not likely pass adequately protective legislation and will be more likely to continue to succumb to skillfully prepared cost-benefit analyses and arguments presented by corporate interests.
- Provide for cultural rights.
Individuals have a right to express themselves creatively, and the nation has a responsibility, through federal legislation, to encourage that creativity with more federal funds going to states for cultural centers, public media, broadcast stations, and increased cultural and creative classes (music, art, creative writing, film, video, digital sound, and graphics) in public education.
Hold an open Article Five convention every ten years and require a national ratification of all amendments passed in an Article Five convention by a direct vote of two-thirds of all voters.
Thomas Jefferson, in a 1787 letter to William Stephens Smith, stated that rebellions and revolutions were necessary “from time to time.” Jefferson asked, “What country can preserve its liberties if its rulers are not warned from time to time that their people still possess the spirit of resistance?” Having an Article Five convention every ten years is a far more civilized check on governmental abuse than an armed rebellion. One could think of it as institutionalizing the “spirit of resistance,” a by-product of the spirit of liberty.
- Remove the vice president from the Senate
Article 2 Section 3 provides that the vice president is president of the senate and can vote when there is a tie. In the interest of separation of powers, the vice president should remain in the executive branch and should not be a member of the Senate.
- Provide for the right to safety.
Should the right to safety not pass as part of an amendment to add the rights of the Declaration of Independence, it should be proposed and passed separately. Delay of this right continues to be a matter of life and death.
- Change the federal election cycle to four years.
This is the wonderfully pragmatic idea of Columbia professor Jeffrey Sachs. A four-year federal election cycle would save tons of election money, free a great deal of mental energy, and increase the efficiency of Congress. It would mean that members of the House and Senate would run for election every four years instead of every two years and six years; respectively.
- Require a background check on the purchase of all firearms.
If ninety percent of the people want a background check that they believe will reduce gun violence, they should be able to have it—with or without congressional support. Wednesday, April 17, 2013 may go down as a threshold day in American politics—the day many Americans lost all confidence in their federal democracy. With the cloture rule in effect and, therefore, needing sixty votes to defeat cloture, the Senate, by a vote of 54-46 failed to pass a bill requiring background checks for all gun purchases—even though virtually all polls showed that ninety percent of Americans wanted the bill to be passed. I remind you that representation in the Senate is not based on population but on a political compromise based on an artificially created political equality among states. It is this patrician elitist body that invoked its very own anti-democratic technique to check safe, fair, and majority-rule government.
The groups springing out of the Newtown Sandy Hook school massacre and other firearm safety organizations will not give up the cause of gun safety because of its rejection by Congress or the recall of Colorado legislators who voted for background checks. However, they may soon conclude that an Article Five convention is the only way to accomplish their mission. Perhaps they will join with numerous other organizations that have come to the same conclusion. Maybe then a grand coalition of individuals and groups wanting an open Article Five convention will come together and lead to thousands—maybe tens of thousands–of groups united behind one purpose: to convene an open Article Five convention.
- Provide for a national initiative process.
Article Five conventions are expensive and yet there are certain issues, such as the gun background check, that demand national attention without having to deal with congressional gridlock. Some initiatives will propose constitutional amendments and others will propose changing the law. A national initiative will provide a direct conduit from the people to the direct exercise of democracy.
- Amend the preamble to state that the Constitution is re-established to secure and encourage the rights of the people.
While it is true that the Preamble has no legal effect, it does set the tone for government. Of the five reasons stated in the Preamble for establishing a constitution, three refer to “domestic tranquility,” “common defense,” and “general welfare.” This suggests a bias favoring the state rather than the individual. Let us return to the principles stated in the Declaration of Independence; the ideals which our revolutionary forebears fought and died for in the American Revolution.
I have submitted more than thirty valid reasons for amending the Constitution. No doubt there are many other reasons worthy of serious consideration. Perhaps, these proposals will help you appreciate the real and substantial need for an open Article Five convention and nudge you to get involved in the process of attaining one.