Responding to Criticism

[subscribe2]Art Deco writes:

Neither the 13th (abolition of slavery) nor the 15th Amendment (suffrage for freedmen) have proved problematic. It’s a few phrases in the 14th Amendment which are the problem, and mostly because of the intellectual and moral fraud abroad in the appellate judiciary and legal professoriate.

It’s fashionable to attribute all sorts of trouble to the 17th Amendment, but that complaint is nonsense. The effect of that amendment in the contemporary context is to alter the balance of skill sets in Congress. Absent the amendment, you would get more people adept at building relationships in state legislatures and fewer at running fund-raising and publicity campaigns. Sen. Dede Scozzafava would have her seat for life. Public policy would be little improved.

As for the 16th Amendment, the trouble is that legislature have discretion to determine the dimensions of the tax base, and that discretion is used to confer bon bons on clientele like the oil and real estate industry.

I will wager the schemes in the 25th Amendment will prove unworkable in a true crisis.

The 26th, 24th, and 23d Amendments consisted of some modest adjustments to the suffrage. Not sure why you’re hostile to that. I am not sure why the 19th Amendment (women’s suffrage) counts as a ‘silly fad’. The 20th Amendment was a housekeeping measure. Not sure why that bothers you either.

You want term limits, but the 22d amendment is a ‘silly fad’. You did not give much clear thought to this before you posted, I take it.

First off, my list of amendments and changes was never intended to be a legal brief. You start with a rounding up and quantifying abuses. A good way to do that is to contemplate the possible solutions to those abuses. The fact is, humans are the result of a long evolutionary process. Upon closer inspection, many of our “defects” have more utility than is obvious. His response, however, are a good opportunity to refine a few points.

First off, I think he misses the mischief contained in the 13th and 14th Amendments. The purpose of a constitution is to do three things. One is it puts hard limits on the resulting government. It does this by clearly listing the proper responsibilities of the state. Everything not listed is prohibited. To reinforce this last bit it clearly lists the areas where government is off-limits. The first two items in the Bill of Rights are good examples. Finally it establishes the organization of the new government. The composition of the parliaments and courts, for example.

The 13th Amendment does something different. It places limits on what citizens of the states can do by prohibiting a specific type of legal arrangement. This is never something we want to see from a national government in a country this size. Much of what ails us these days stems from this belief that the national government has a duty to boss around the people. Enshrining the concept as we do in the 13th Amendments is asking for trouble and I think we got it and are living with it.

As for the 14th, it is an example of not being able to see far enough down stream. The abuses stemming from this amendment are legion. More important, this eats away at the supporting structure of the Constitution. The organizing principle is to balance the power of the states against that of the national government. Once you make the national government superior, that relationship collapses. All of the good in this amendment can be accomplished by incorporating the privileges and immunities clause into the body of the constitution or as a separate amendment.

This leads me to the 17th Amendment. America is a big country with a lot of people. Evolution and simple observation tells us that will result in lots of natural diversity. The people of Alabama will have a different language and culture than the people of Oregon. Therefore, the natural governmental unit is the states. The people of Alabama, within the broad framework of the Constitution, should be free to organize their laws as their distinct culture dictates. The only way we can ensure that is to limit the national government, thus giving the people the freedom to organize their state and local government to their tastes.

A lesson learned the hard way is that ambitious men seek a national platform. By making the Senate the stronghold of the states, the ambitious men of Alabama and Oregon will have a national stage from which they can safeguard the interests of their states. That was the point of having the state legislatures pick the senators. The Senate was designed to be the brake on the people, who are represented in the House. The 17th Amendment turned the Senate into the national government’s bulwark against the states.

As to the amendments on suffrage, I think Aristophanes was right. Giving women the franchise was a terrible mistake. Putting that aside, the states should be in charge of figuring out who can vote. I think an allowance can be made for the House of Representatives. A clause to define the franchise for that office is necessary, but not very complicated. Any citizen over 25 should have the vote. Adulthood has been pushed back and it should be reflected in the law. If you want to make an exception for military people, that’s probably a good idea.