Tuesday, 20 August 2019

How they hijacked the US Constitution - and HOW we will Protect our Constitution



Constitutional Topic: Rewriting the Constitution

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the ideas for rewriting the United States Constitution through history. Amendment of the Constitution is detailed in Article 5.
The primary source for this Topic is John R. Vile's Rewriting the United States Constitution - An Examination of Proposals from Reconstruction to the Present (Prager Publishers, New York, NY, 1991). This book is out of print, but should be available at university libraries.
The United States Constitution has served as a framework for the government of the United States and as a guarantee of individual freedoms since 1788, but from the outset, people had ideas on how to improve on what the Framers had created in their Convention. Within 18 months, the Bill of Rights was passed, adding 10 amendments to the brand new document. From 1789 to 1992, the Constitution was amended 27 times, and through judicial review, the meaning of parts of the Constitution have changed many times.

But these changes were all relatively small, incremental, evolutionary. None are truly revolutionary, in the way the Constitution was to the Articles of Confederation. In fact, the Constitution has no provision, directly, for full-scale change. There is, however, the concept of the Amendment Convention as noted in Article 5. The power or limits of such a convention are unknown because there has never been one. It is thought, however, that a Convention would be able to propose any change to the Constitution it decided to, including full replacement.
There have been many proposals for substantial change to the Constitution. Thomas Jefferson himself was wary of the power of the dead over the living in the form of an unchanging Constitution. To ensure that each generation have a say in the framework of the government, he proposed that the Constitution, and each one following it, expire after 19 or 20 years. James Madison, Jefferson's contemporary, found comfort in knowing that the populace would not be thrust into political turmoil every 20 years, and noted that the way the Constitution is now structured, it implies an acceptance of the status quo unless explicitly changed.
In Rewriting the U.S. Constitution, Vile divides the various historical proposals for large-scale change chronologically. The remainder of this Topic will summarize each major division and the main points of most of the proposals. The "division headings" are Vile's.

The period following the Civil War brought several events that stirred authors to propose modifying the Constitution. Reconstruction itself, and the varied feelings of victory, defeat, and unfairness, undoubtedly contributed, as did the centennials of the Declaration and the Constitution. In addition, technology was advancing quickly, and the economy of the United States was undergoing transformation.

Charles O'Conor, a New York lawyer and politician, advanced several ideas in a series of speeches and articles in the late 1870's. Foremost on his mind was the apparent corruption and redundancy in government. His proposals included unicameral legislatures in all states and at the national level; elimination of all government debt, tariffs, and duties. He proposed that the President not be an elective office, but rather filled on a monthly basis from the body of the national legislature. He had ideas on voting, including changing it to a duty rather than a right and elimination of the secret ballot. He thought the diplomatic corps to be unnecessary with the advent of the telegraph.

Albert Stickney, a Boston lawyer, published a book in 1879 on the subject of a new Constitution. He would maintain the executive and legislative branches separately, and to allow the members of both to serve during good behavior. This, he hoped, would put an end to the party system, which he felt undermined the democratic process. He also included the judicial branch in the election and life term idea. The office of Vice-President was eliminated, replaced by a system of succession of cabinet officers. He also eliminated Presidential veto power. The unicameral national legislature would have the authority to pass any necessary law, and had no approval power over Presidential appointments.

Woodrow Wilson, future President, wrote several papers on revising the Constitution from the late 1800's to early 1900's. One of his major proposals was to allow cabinet members to come from, and remain in, Congress. His main concern was a decline in statesmanship, and by allowing the two branches to mix, the cream would float to the top. He also proposed lengthening the term of congress people and perhaps even allowing the President to serve during good behavior. He would also allow the House to be dissolved, and expected the Senate to follow suit.

William B. Lawrence, lawyer, diplomat, and author, published an article on the Constitution in 1880. His impetus seems to be the Reconstruction and the disputed election of 1876. He advocated returning to the choosing of the President by Congress, as was first considered in the Constitutional Convention. He questioned the need for the Vice-President, the Electoral College, political conventions, and the single-person executive. He favored a system modeled after that of the Swiss; that executive is a seven member council, the President and Vice President chosen for an annual term from that council. The members of the council are chosen by the legislature.

Henry Lockwood, New York lawyer, wrote a book in 1884 which primarily attacked the presidency. He viewed the President as an elected king, and proceeded to tear down every power of the President, from his role as commander in chief to the weakness of the cabinet. He advocated national power over the states, but used the model of the Articles of Confederation as a superior legislative model; a unicameral Congress, an executive council (whose members were appointed by Congress and could be members of Congress), and a weakened judicial branch were the highlights of his plan. Lockwood's plan was widely read, but had little impact in the long run.

Isaac Rice, political scientist, was a native of Bavaria; in 1884, he saw the Constitution as the result of a badly flawed reading of Montesquieu by the Framers; the government they created, with its strong separation of powers and the built in checks to be to the nation's detriment. While the Framers took from Montesquieu that power is the source of despotism, they ignored their own experience with the British system that the true source of despotism is the concentration of power in a single person, rather than a single body. Rice looked to Parliament as his model for a new American government.

Caspar Hopkins, a California businessman, proposed a series of changes in 1885. While praising the Constitution, he noted that with the country had outgrown many of its provisions. He proposed, for example, national standards over civil matters such as marriage and education. He melded the executive and legislative branches by making the members of the Cabinet become members of the legislature. He also proposed special education for legislators, and allowing only natural-born citizens to serve. He restricted members of the Senate to people making $100,000 or more, restricted the vote to natural-born citizens only, and restricted immigration. He also extended all terms and abolished the Electoral College.
Goldwin Smith, lawyer and scholar, was English-born and a frequent commentator on the U.S. Constitution, and published his article in 1898. He would have modified the legislature to more of the British Parliamentary model, with a weakened Supreme Court, and clarification on taxation and tariff issues. He proposed removing the 15th Amendment, and though he says it was not to disenfranchise blacks, his comments on Eastern European immigrants belie a racist twinge.

The early 20th century was marked by two great political events: the rise of progressivism, and World War I. Progressivism was a movement that was concerned with some new phenomena: the rise of industry, and the rise of the city. They touted equality of women and of the races, and supported suffrage reform and civil rights. World War I, like WW2 after it, brought some needed prosperity, but also the deaths of many American soldiers. American isolationism was a prevalent theme until the U.S. entered the war.
Walter Clark, chief justice of the North Carolina Supreme Court, published an article in 1907 which embodied progressive ideologies. His main complaint is that the Constitution is not democratic. He advocated popular election of Senators (a common theme prior to the passage of the 17th Amendment) and proportional representation in the Senate. He applauded the changes in the election of the president, but called for even more reform, including changing the Electoral College to match population ratios rather than legislative representation, and a six-year term.

Walter Tuller, California lawyer, wrote an article in 1911 advocating a convention to amend the Constitution. His primary goal was popular election of Senators. He also proposed that the amendment process be changed to allow an amendment to be ratified upon acceptance of half the states, and a change to allow the federal government more explicit control over corporations. Tuller devoted much of his paper to a discussion of the number of states that have called for a convention, and how to force one should the Congress fail to call one.
Yandell Henderson, physiology professor at Yale, was an active member of the Progressive Party. In 1913, the Yale Review published an article he wrote that the judicial branch, and the concept of federalism, needed change on a Constitutional level. He advocated bringing the legislative and executive branches closer together, if not fused, offering a parliamentary model as his ideal. He advocated national referendum to allow the people to overturn judicial decisions. Finally, he wanted to increase the power of the federal government at the expense of the states, but he did not advocate the elimination of all state powers.
William MacDonald, journalist and scholar, wrote a critique of the Constitution in 1922. He advocated change to a parliamentary system, with term limits, encouragement of minor political parties, an executive drawn from the legislature, a popularly elected President, and the reduction of power of the President to that of a de jure head of state. His recasting of the Congress was extensive, including representation by profession as well as population. He called for specific language that made the Bill of Rights apply to the states, but he was not ready to call for the elimination of states as political entities.
The Great Depression hit the United States hard. After refusing to join Woodrow Wilson's League of Nations, the U.S. entered into another period of isolationism, content to go its own way. But the depression of the world economy showed Americans, perhaps once and for all, that there is no true isolation. This realization, along with FDR's attempts to pack the Supreme Court, and the 150th Anniversary of the Constitution, renewed calls for widespread reform.

Charles Merriam, University of Chicago political science professor, wrote a book published in 1931. His proposals stemmed from the rising of the cities as population and political centers; he proposed reorganizing the cities into independent states, and reorganizing state boundaries to reflect regional interests. He advocated changes in the way laws were passed, treaties were ratified, and that party primaries be regulated by Congress.

The Socialist Party's 1932 platform included many proposed changes to the Constitution. One group concerned voting and elections, including popular election of the President and the ability to hold national referenda. Judicial review would be specifically barred. Worker's rights would be protected, and child labor barred; nationalization of industry would also be permitted and promoted. Finally, they advocated an easing of the requirements for ratification of constitutional amendments.

Also in 1932, William Kay Wallace, U.S. diplomat, proposed not only changing the Constitution, but replacing it wholesale. His constitution would include guarantees of economic liberty, a right to education, economic security, and leisure. He would replace the states with nine geographically-based entities, each with an equal representation in a national Board of Directors. A President would be chosen from the Board; the new states would have similar systems. He proposed nationalizing all industry, with the government having the power of conscription even in times of peace.

Henry McKee, a California businessman, wrote a book in 1933 that melded several of the plans that had come before. His suggestions for reform are top-heavy on the business side, stressing economics and the causes of unemployment. He proposed adoption of the British political model, elevation of the Federal Reserve to Cabinet status, Ministers of various industries, such as railways and retailing, and a reform of the education system to make finances be a strong part of education.

William Elliot, a Harvard professor or political science, wrote a book in 1935 that stressed national security. He advocated a super-state political entity called a commonwealth, Presidential power to dissolve the House, Congressional selection of Presidential candidates, direct popular election of the President, a reduction in the power of the Senate, multiple vice-presidents, approval of treaties by both houses of Congress, Senators elected at a regional level as well as at-large Senators, and a strengthening of political parties.

In 1937, Malcolm Eiselin called for a new Convention to draft a replacement Constitution. His main thrust was a Parliamentary-style cabinet government, though he proposed many other reforms, such as the abolition of the electoral college, popular referendum and initiative, reconsideration of Presidential terms, modification of the amendment process, and a redefinition of the balance of power between the states and national governments.
Ralph Cram, architect and author, offered a unique approach to Constitutional revision in 1937. He first targeted suffrage, calling for a return to property-based voting rights; he realized this "ideal" would be considered too much, and also proposed residence requirements and tying suffrage to participation in civic volunteerism. He advocated full revision of the Senate, though the House passed by largely unscathed. He modeled his president after the European monarch, with life service and the power to dissolve the legislature. He also required unanimity in any decision by the Supreme Court, replacement of the states with five or six commonwealths, and institution of titles of nobility.
Charles Coleman, with the National Council for the Social Studies, published a model constitution in 1938. It was intended for use in schools, to illustrate constitutionalism. His revision was largely semantic, with an incorporation of the amendments into the main text, rearranging the text to group like sections together, and modernizing the language. Aside from this "reorganization," several changes were recommended: elimination of the Vice-President, approval of treaties by both houses, by simple majority in each, revision of the electoral college to eliminate electors but leave the electoral vote distribution, states were specifically prohibited from seceding, and the amendment process was modified.

World War II gave reform-minded individuals an opportunity to take up the topic of constitutional revision yet again. With the country in a crisis, the likes of which had not been seen in generations, many thought the time to reform was now.
Henry Hazlitt, a conservative journalist, wrote a book in 1942. His main point was that the time of the War was a perfect time to contemplate changing the Constitution, and that the War was pointing out several of the Constitution's weaknesses. Like many before him, he advocated the parliamentary/cabinet model and changes in the powers of the President. The Senate would become more like the House of Lords, Senators and the President would be appointed, and Congress would have the vote of no confidence. He noted, however, that his ideal was probably too sweeping, and proposed several less severe reforms, such as elimination of the Electoral College, the line item veto, and setting a retirement age for Supreme Court justices. Above all, though, he felt the amendment process needed particular attention, recommending majority ratification over super-majorities.
Herbert Agar, one of the Twelve Southerners who wrote An Agrarian Manifesto in the 1930's, wanted to change the Constitution to ensure the survival of civilization itself, in 1942. He was less concerned with structural changes than he was with spiritual ones. He advocated equal rights for non-whites and reform of industry. He commented on the need for a free press, and wanted reforms that would bring more people into the political process. He interestingly did not advocate a parliamentary model, but did call for changes to force the legislature and executive to work more closely together.

Alexander Hehmeyer, an attorney, wrote his book on Constitutional change in 1943. He focused on the post-war period, and wanted to be very realistic in his goals; no utopian reforms. He also though that the war period was a perfect time to institute change, when people were in crisis mode. He also did not advocate a parliamentary model, but rather working within the current system: changes to terms; a specific, codified cabinet; a new budgeting process; ratification of treaties by a simple majority of both houses; a new "freedom from want"; a regular Constitutional Convention; making former Presidents become Senators-at-large; and so on.

Thomas Finletter, a special assistant to the Secretary of State, wrote a book published in 1945. He also focused on the post-war world. He was concerned that the current system of separation of powers was not conducive to American leadership in a peaceful post-war world. Some of his proposals required amendment and some did not. He wanted to change House rules to allow cabinet secretaries to appear regularly before the House for a question period; to alter the seniority system; to increase the number of Congressional joint committees; to create a joint legislative-executive cabinet; and to allow treaties to be approved by the majority of both houses. To facilitate all of his proposals, he advocated making all terms and elections the same, and to allow the President to dissolve Congress and the Presidency, calling for new elections of both branches when a deadlock was reached. While this power was of the President, Congress could force his hand due to its influence on the joint cabinet. His book was written in popular, rather than scholarly, style, in hopes of gaining popular momentum for his suggestions.

Civil Rights was the topic of the decades following WW2. Judicial activism clearly upset many observers as well as those holding positions of power in the government. Many people proposed changes to over turn one or two Supreme Court decisions, though calls for widespread change continued to be issued as well.
The Council of State Governments met in 1962, and adopted a platform that consisted of suggestions for several amendments that would specifically strengthen states' rights. It proposed a much state-centric method for amendment and created a "Court of the Union," which could overrule any Supreme Court decision. The proposals of the Council were widely panned.

Dwight MacDonald wrote an article in the popular magazine Esquire in 1968, that pondered a few potential Constitutional changes. Along with the familiar parliamentary model, MacDonald removed the residency requirement for congresspeople, conscription of all males for military or social service, limited the percentage of the military allowed overseas, limited the amount Congress could spend on defense, linked continuation of the space program to the elimination of poverty, and finally redrew state lines and provided for "city-states."
The Black Panthers met in 1970, and had a convention to propose changes to the Constitution. The convention never issued a formal statement of proposed changes, but a newspaper account listed the following: a total restructuring of all political boundaries, police forces made up of community volunteers, a military made up of volunteers, free housing and health care, free child care, and a host of proposals to support communist rebels and governments. Though a good share of their proposals would seem to have little to do with the Constitution, and the proposals were tainted by the Panthers' politics, some of their proposals have eventually become reality, or been heavily debated.

History Professor Leland Baldwin wrote a book on the subject of Constitutional reform in 1972. He felt that the times demanded change, considering the war in Vietnam and the general feeling of rebellion the early 70's had. He felt the Constitution had two conflicting constituencies it had to serve and guard against: the populace, and the legislators. He proposed redrawing the states, with powers only as granted by the federal government; a parliamentary and cabinet form of government; a complete revamping of the judiciary with pre-emptive judicial review; parties were recognized and encouraged; and the amendment process was modified.

Rexford Tugwell, an economist who worked with FDR, wrote a book finally published in 1974. It was an exhaustive tome, intended for a scholarly audience. his main concerns were that today's government bore little resemblance to that outlined in the Constitution, and that the amendment process was too rigid to allow for continual, generational change. He was also highly critical of judicial review, unsurprising considering his political roots. His plans for revision are hard to categorize. He was critical of the current system of separation of powers, but he would not have eliminated it, just refined it. He thought the President had too much power, but rather than eliminate the Presidency, he expanded the President's term and provided for two Vice-Presidents instead of just one. Senators would be appointed for life, a portion of the House was elected on a national scale, several new courts were proposed, and he added a Bill of Responsibility to the Bill of Rights.

Watergate was a time of deep crisis for many Americans; a crisis of confidence in the Presidency, the Legislature, in the effectiveness of the Constitution itself. Not surprisingly, there were many calls for changes in the Constitution.

Political scientist Charles Hardin published a book in 1974, in direct response to the Watergate scandal. However, he acknowledged previous contemporary authors, indicating that Watergate was not his only motivation. From the Civil War to Watergate, he saw scandals as an inevitable symptom of the structure of government provided by the Constitution. He envisioned a more Parliamentary government, with a strong party flavor. He favored equal terms for the President and Congress, with simultaneous elections and votes of no confidence; at-large members of the House; an official opposition with its own shadow cabinet; and election of the President by simple majority vote.

In a 1974 book about the Presidency, Michael Novak suggested several changes to the office. First, an opposition spokesman would be elected by the House to act in opposition to the President. This person would be legally high-profile, with equal access to the press. A process similar to Question Period would be instituted where the President and his party would answer to the opposition. The President's cabinet would be required to have a certain percentage of its members come from the opposition party. Finally, he suggested separating head-of-state and chief executive roles, providing for a decennially elected head-of-state to represent the nation. While many of his propositions are parliamentary in nature, he did not advocate adopting a full parliamentary model, feeling that the American people would not like such a system.

Congressman Henry Reuss, of Wisconsin, proposed several changes as a result of Watergate. His main point was the introduction of a vote of no confidence, by three-fifths of the members of Congress, which would trigger new Presidential elections. A later modification would also have the vote trigger congressional elections as well. His proposal was part of a symposium held in 1974, from which ideas of several other influential politicians and historians also emerged.
The Bicentennial of the United States, 200 years after the signing of the Declaration of Independence, was a perfect opportunity to reflect on two centuries of Americanism and the documents and ideals that brought the country to that point. Combined with the freshness of Watergate and the Vietnam War, Constitutional revision again was a popular topic.
Conley Dillon, a political science professor, pushed for the creation of a Permanent Commission on Constitutional Review, a plan first put forth in 1969. His call, in 1977, was for a fifteen-member panel, to be established and populated by the President and Congress, to hold hearings on possible changes in the Constitution. Dillon listed several areas in which he felt consideration was needed: Adjustments to the federal structure; changes in the selection and accountability of the President; terms and selection of the members of Congress; the method of judicial selection; the current distribution of power among the branches; the status of political parties; individual and group freedoms; the calling of a Constitutional Convention; and the loss of confidence in the United States Government by the American People. While Dillon listed areas that deserved attention, he did not list ways he thought they should be changed.

Former Michigan Supreme Court Chief Justice Thomas Brennan called for a Constitutional Convention in a 1982 law review article, using the upcoming Constitutional Bicentennial as the impetus. His primary desire for a convention was that it would reaffirm the individual rights of Americans and that it would reaffirm the supremacy of the states in the federal system. He also wanted to see the current Constitution rewritten with more modern language, to reflect the priorities of modern society. For example, the elimination of the requirement of jury trials for federal common-law suits, which are not even entertained in federal courts any longer, and the elimination of the two-year limit on military expenditures, which was moot considering modern annual budgets.

The Committee on the Constitutional System, which was comprised of a small group of scholars and politicians, issued its report on proposed changes to the Constitution in 1987. It proposed six major and several minor changes. The major changes were divided into two categories: those to strengthen parties and those to increase cooperation and coordination between the executive and legislative branches. The latter are more interesting, and included allowing the President to have congress people in the cabinet, decreasing the treaty ratification requirement to a simple majority, but in both houses, and increasing House and Senate terms to four and eight years respectively. Some of the minor changes included the encouragement of a shadow cabinet, differing schedules for congressional and presidential elections, and the ability to have a vote of no confidence to force new elections.
After the Bicentennial came the bicentennial of the Constitution itself, and then of the Bill of Rights, providing a perfect backdrop for reflection on the efficacy, vitality, and longevity of the Constitution.

Arthur Miller, law professor at George Washington University, wrote a book published in 1987, that called for, among other things, the need for increased judicial activism. Miller reflects on the written and unwritten constitutions; one where all people are equal, another where race, gender, or economic status have profound effects on treatment; one where federalism is important, another where its importance has dwindled. While he advocates a global political system, he focuses on the United States. He advocates a unicameral, 100-member Congress, with broad national powers; an even more powerful Supreme Court, replete with non-appellate legal review and enforcement powers; and a permanent executive council, there to advise the President. He also calls for the redrawing of state lines.
Jeremy Miller, law professor at Western State University College of Law, called for a re-evaluation of the Constitution at its 1987 bicentennial. He wanted in particular to do away with paternalistic law, a decrease in the size of government, and an increase in individual freedom. Miller even provides a draft of his proposed document, which is much more detailed than the current Constitution. For example, it goes into detail on religious freedom, defines specifically what "arms" means, details search and seizure and stop and frisk procedures, outlaws abortion, use of mechanical objects for organ transplant; interestingly, neither voting rights nor equal protection are guaranteed. Like the Chinese Constitution, among others, it also lists the duties of citizens. He similarly outlines many changes to the structure of the government, including term limits, creation of a national lottery, and legislative review of judicial review.
Vile's "present" ended in 1991. Since that time, the Internet exploded onto the scene, and the ability for the common person to publish his or her own thoughts to the world have become infinitely easier than at any time in the past. Below are summaries to plans found on the Internet, with links to Web sites expounding on those plans.

Kirby Palm presents a list of suggested amendments. The categories are "Applicability" (who the Constitution and Bill of Rights applies to), "Offense and Recourse" (what constitutes a governmental violation of the Constitution and what can be done about it), and "Secession" (clarifying the process a state must take to secede from the United States).

Abe's Indignation League advocates the calling of a Constitutional Convention to address specific points. It is primarily concerned with setting a certain ethical standard to American politics, as well as clarifying and strengthening states' rights. It also proposes a rewrite of the current Constitution using more modern, understandable language, limits on spending on public projects, term limits, and campaign spending reform.

Tom Campbell, U.S. Representative from California, advocates revising the selection of Senators to make the Senate proportional. In his plan, the members of the House would elect the members of the Senate from their own ranks. Special elections would be held to replace the leaving Representatives. He notes the difficulty of circumventing the equality clause, but contends that a convention could get around it by writing a totally new Constitution.

The Campaign for Responsible Government advocates a parliamentary form of government, and includes a model document to illustrate the structure of such a government. Included are new terms, restrictions on campaign times and spending, and a restriction on non-governmental earnings. It also includes sample state constitutions.

The U.S. Constitution for 21st Century site advocates the adoption of a new constitution for the United States for the 21st century. A quote from the site: "Unique, innovative, venerable in its time, our more than 200-year old Constitution now has become antiquated and obsolete — even detrimental and dangerous — for the nation."

The Constitution-21 site also advocates the adoption of a new constitution for the United States for the 21st century. A quote from the site: "We here strive to create the best possible model of government without reference to any reaction from this or that pressure group."
Ralph Bass has produced a list of ten amendments that he says could "bring back our government into line with our historic American political and economic values". The amendments include a term limits amendment, a defense of marriage amendment, the line-item veto, imposition of a national sales tax, and an amendment restricting "birth citizenship" to those born of two citizens.




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