We The People

The wisdom of the Founding Fathers is undeniable. But there were wise men before them and there have been wise men (and women) subsequently.

Their achievement in writing the Constitution is general proof of their wisdom, but more specifically they recognized their own limitations, and they provided for the updating of their labors. The incorporation of a mechanism to do so is a demonstration of their love for the new country, and their dedication and determination that it be vibrant and responsive to its citizens for the foreseeable future. And if we don't utilize the tool they gave us to do so we deny their wisdom and foresight. They made it difficult – possibly out of fear that the mechanism would be overused. Nonetheless, Article V gives specific steps which could be utilized in the amendment process and, although the process is difficult, it could – and I think should – be made easier and more frequent, although this, itself, would have to be done by amendment. And that, perhaps, is where we should start.

As I noted at the outset, there have been wise people since the Constitution was written, and they are certainly more familiar with modern social mores and technology than our beloved Founding Fathers. Currently interpretation of the existing document might yield answers to the conundrums we face, but interpretations often contradict each other, and contradictory rulings are both confusing and productive of errors. Moreover while many learned scholars tell us that we should follow the original intent of those who wrote the document, they often disagree as to what that intent was.

Complicating the process is the fact that things move faster now than they did then – especially technology – and, in addition to greater speed regarding the actions performed under the laws, more frequent tweaking of the document itself is needed. Thus Inauguration Day, originally the fourth of March to allow for travel from the President-Elect's residence to the place of inauguration after the election, was changed by the Twentieth Amendment in 1933 to January twentieth. With better roads and faster vehicles, less time was needed.ⁱ

March fourth is only a single example, but the reality is that the world has changed markedly since 1789. However the Constitution – the law by which we live – hasn’t kept up. Should computers and the internet have a place in the election process? Is the current election cycle counterproductive? Do our system of checks and balances, and the relative strength of the branches, need reformulation? Should the bureaucracy be eliminated or better regulated? Do any of the “interpretations” of the law that have been adopted over the centuries need to be memorialized or disavowed? Should the courts be able to decide what Congress and American citizens meant when they voted? There are more questions, but you get the point.

Whether public opinion should play a significant role in the process is something that would certainly spur disagreement, but my view is that those who set the rulesⁱⁱ are elitist, and have too wide a set of (often personal) priorities to be allow any real choice for voters. Voting yes or no, as we do for an individual, doesn't permit the expression of views on particular issues. Not all of those issues rise to the level of constitutional questions, but a system allowing for the popular expression of opinion on fundamental matters may, in the future, provide for legislative choices as well. I think, moreover, that people in the twenty-first century are as wise as those in the eighteenth, and have the advantage of knowing the results of the original words. So I wish to present a proposal aimed at modernizing what has been a superb basis for American civilization, but which may benefit from the recognition of current views and tools.

In order for the plan to work, it would be necessary to start with the current amendment process for which I suggest the following:

In addition to the mechanisms listed in Article V, a method shall be established to allow for the initiation of amendments by all citizens, with acceptance by favorable popular votes in three-fourths of the states. The details of the voting process, and the definition of passage of any proposal, shall be set by the legislatures of the individual states prior to any balloting.

Congressional and Executive approval of such amendments is not needed for such amendments to be effective.

Polling regarding such popular initiatives shall occur in the first year divisible by four following each census.

If such an amendment were to be passed, it might be necessary to limit the number of proposed changes in each voting cycle – especially the first – since every interest group would rush to suggest changes, and the larger the number of proposals, the more likely people will be to ignore the whole process. Steps would have to be considered regarding the input of groups, rather than citizens, although, perhaps, the definition of an individual as opposed to a groupⁱⁱⁱ might, itself, require legislation.

Prior to the states taking over the voting process, a national debate should be entered to determine what topics would be subject to vote. Where possible the use of modern technology would be employed with access for all to computer systems in the libraries and other public buildings. Over a period of time, citizens might list their areas of interest and the basic problem with each in a way that a computer program could compile them, listing the top concerns of the people.

Proposed amendments^iv could then be offered for review and discussion^v over electronic media^vi with some kind of process formulated to select the top three^vii proposals regarding each question for vote. The selection of the proposals that will be on the ballot could take place over a period of time, but a fixed final date should be set for a decision about which options would be placed on the ballot for the election chosen by the previous amendment.^viii

Problems remain. The always do in a democracy. It will be necessary to protect the minority from the majority, and those who believe in democracy from those who would use it against itself. And we would all have to protect ourselves against the interest groups that might want to use the Constitution to promote their own programs. But we are a thoughtful and resourceful people, and ways to do so can be created. Times have changed and so must we.

Next episode: “Nota Bene” – Your turn.

I       The winning candidate could get to Washington today in a much shorter time, but time to rest after the election and time to organize a government and work out program proposals make shortening of the process in my opinion (wait, everything in these essays is my opinion) undesirable.

ii       Then and now. (Substitute “were” for “are” – and other past tenses – when thinking about the founders.)

iii      And, of course, the definition of when does a person attain that status, as opposed to a fetus.

iv      Length not to exceed 100 words or some other arbitrary number that would permit individuals to read and understand them.

v        In addition to the merits of the proposal itself, there may be views expressed about the costs and about unintended consequences.

vi       Or whatever else might be available in the future.

vii       That's an arbitrary number and another may be chosen.

viii     On June 22, 1788, the ninth state (New Hampshire) approved the Constitution, which was all that was needed to ratify it. It makes sense to memorialize that event as Constitution Day, and decide on further amendments then.