Guest post from Shorter Half (a.k.a. Geodkyt)
I think it is difficult to argue that the balance of power in the United States hasn’t gotten out of whack. Whether you’re a liberal who feels that Chimpy McBusHitler and Darth Cheney abused the system to install an Imperial Executive who ruled by fiat and ignored the law; a conservative who feels the same about almost all Democratic presidents since Comrade El Presidente for Life FDR wheeled into the Oval Office*; or a guy who spent $30,000 Rogaining himself into a Wookie birthday suit, calls dollar bills “Federal Reserve Notes” that aren’t actually “dollars”, feels that the tipping point was when Washington decided to crack down on moonshiners, and proclaims that a standing army larger than the faculty at West Point is militaristic tyranny; there is a general feeling the system is badly in need of an overhaul.
Quite a few people have discussed the idea of a Constitutional Convention to “hit the reset button” on our democratic Republic**, to restore the ideals of the Founding Fathers.
Others (less radical) have proposed simply repealing the 17th Amendment, giving the control of senatorial selection back over to the legislatures of the several states (who could, if they wish, choose to select their senators by popular vote.)
Some think we need a recall procedure or term limits on the judiciary, including the Jedis of SCOTUS.
Let’s go over these options for a minute ...
Constitutional Convention? Look, you (regardless of political leanings) almost certainly think of yourself as a reasonable, responsible person. It’s those other guys who can afford (because they have no life and plenty of rich, uninhibited, power hungry nuts just like them to underwrite their living expenses) to sit around, day in and day out, arguing for months about the shape of the table, until all the reasonable, responsible people have had to go home. So, imagine a constitution written from scratch by the most bitter, partisan, and nutball types on the opposite end of the political plane from you. A Constitutional Convention is a last resort, suitable for a post-revolutionary period, or when you realize the government you just created is completely unsuitable to your needs.
Repeal the 17th Amendment? Well, it would likely restore some of the 10th Amendment balance that’s been lost – appointed senators who do not have to stand election may well be more directly responsive to the legislature that appointed them, and look out for the perceived interests of their state rather than public opinion. Of course, this overlooks the fact that the legislature itself has to stand election. Another difficulty is it simply isn’t going to happen – 2/3rds of both houses of Congress plus 3/4ths of the states are not going to vote to strip the American people of their direct election of Senators. (In all honesty, while I am in agreement that the 17th Amendment was a mistake in that it effectively gutted the 10th Amendment, I prefer to err on the side of the ballot box.)
Term limits and/or recalls for the federal judiciary? Maybe recalls of some sort, the same procedure to recall Sotomayor can be used to recall Thomas. As for term limits, what is a judge to do when he is running up against a Constitutional limit on his career? If he’s a crappy enough judge that you don’t want him on the bench, are you really getting warm fuzzies about the thought of him looking forward at his post-judicial career and figuring he better not offend any future employers, like any Congressman turned lobbyist?
Well, I was at the local Tea Party meeting, when this little gem of an idea was announced:
The Repeal Amendment
"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
Note what this proposed amendment doesn’t do –
• It doesn’t give the state legislatures the ability to create federal law.
• It doesn’t give the state legislatures the authority to override courts decisions they don’t like.
• It doesn’t alter the Constitution every time the people wish to stop something stupid.
• It doesn’t strip away any democratic procedure.
• It doesn’t allow individual states to just pretend to ignore federal laws they don’t like.
• It doesn’t permanently prevent the law from being reenacted if the people decide they prefer it after all.
• It doesn’t risk the complete reorganization of the Constitution.
• It doesn’t create an additional incentive for judges to issue biased rulings to set up his second career.
All it does it give the several states a veto. If a federal law or regulation is so abhorrent that 34 out of 50 state legislatures all reject it, chances are it was a bad idea. Since Congress can vote to reinstate the law under the usual legislative procedures if they feel the state legislatures are out of touch, all it really does is force everyone to slow down and take a second look at it.
Is it perfect? Probably not. For example, it could be worded so that the repeal would have to be overridden in the same manner as a Presidential veto ... but then, this amendment is unlike a veto as it can be used on laws already in effect, and it can be used on non-legislative regulations. I’d rather have this than risk swinging the pendulum so far over we have reduced the federal government to a shell of impotence, like the Confederate States of America, Articles of Confederation, or the Polish Parliaments of the 17th and 18th Centuries. Likewise, I wouldn’t mind being able to veto Senate confirmations or ratifications – but since confirmations and ratifications generally take effect immediately, just how long should treaties and officials such as federal judges be held vulnerable to a ex post facto veto?
For more details, I can recommend the WSJ article, The Case for a 'Repeal Amendment'.
* Well, except for Carter ... even the most rabid Dittoheaded Pajamahadeen sworn to the eternal service of Ronaldus Maximus will readily proclaim that Carter wasn’t even competent enough to function as an effective autocrat.
** Yes, the capitalization style is deliberate – North Korea is a Democratic Republic, Nancy Pelosi wants a Democratic republic – this nation is a Republic whose representatives are chosen by the people (democratic).