Constitutional Reform?

by Bill Lauritsen
Lincoln Democratic Club Member

There has always been much discussion (dispute) about what the U.S. Constitution -- the supreme law of the United States -- actually means.  Although many have stressed out about its interpretation, most of the Constitution is pretty clear.  It’s written in modern English!  Many others have pointed out that gaping holes do exist.   The 232-year-old document was deliberately drafted lean with Congress expected to fill in with Federal law. 

Supreme Court Issues

There has been discussion recently about the Supreme Court, particularly concerning its exact complement.  Democrats have complained that Mitch McConnell has effectively “packed” the courts by denying President Obama’s appointments and is now “fast tracking”  Trump’s.  A possible solution has been suggested that would add new members if and when Democrats regain the White House and Senate at the same time thereby “unpacking” the Supreme and lower courts.  In the past, particularly during the presidency of Franklin Roosevelt, Republicans have complained that this sort of change was “unconstitutional” and couldn’t be done for purely political reasons. 

Well, the Constitution does not designate an exact number of members for the Supreme Court.  Article three only states that “The judicial Power of the United States shall be invested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.”  This language and capitalization – or lack thereof -- is from the Constitution itself.   Congress initially designated six Supreme Court Justices but that led to ties.  Congress increased the number to seven in 1807 and nine in 1837. 

In 1863, they increased it to 10 to give President Lincoln another appointment but before Lincoln had a chance to name a 10th Justice, he was assassinated.  The Republican Congress then reduced the number of authorized members to seven to deny Andrew Johnson any further appointments.  This was obviously done for very political reasons as Johnson, a Southern Democrat who was opposed to secession, was only selected to run with Lincoln as Vice President so as to form a “Union” ticket.  He was never meant to be President.  Republicans did not like him and were only one Senate vote away from removing him in an impeachment trial.  So much for not changing the Supreme Court for “political reasons.”   In 1869, the number of members was set at nine (during the Presidency of Republican U.S. Grant) where it has stayed since.  All this was only authorized by majority vote in Congress and not Constitutional amendments. 

New States (Puerto Rico and Washington DC)

There are other places in the Constitution that are actually clear but that could lead to major changes in the power structure of the country if Congress so decided.  It only takes a majority vote in Congress to admit new States.  Puerto Rico and the District of Columbia could be admitted as States by just a majority vote entitling each to voting representation in Congress.  That means at least one member of the House of Representatives and two Senators.  If a state wanted to break up and form new states, the State Legislature concerned along with a majority in Congress is all that would be necessary to do so in accordance with Article 4. 

There was a referendum that was supposed to be on the California ballot last time concerning breaking the State into three, but it was taken off because the Constitution only gives this power to the State Legislature and Congress.  A simple majority in Congress can definitely re-arrange the power structure of this country. 

By the way, there is no clear definition of what actually constitutes a state.  San Francisco could be a state.  Manhattan could be a state.  Berkeley could be a state.  Every Congressional district could be a state entitling each to one member of the House of Representatives and two Senators if both Congress and the relevant state legislatures concurred.    

The Biggest Loophole

The biggest loophole in the Constitution is the Constitution itself.  When the Founding Fathers gathered at Constitution Hall in 1787, there already was a supreme law of the United States.  It was called the Articles of Confederation.  It required a unanimous vote of the States to change.  This proved to be rather unworkable to say the least, so the Continental Congress wrote a new Constitution.  Within that new Constitution is written the method for its own ratification.   Only nine States out of 13 were “sufficient.”  In other words, the old Articles were ignored and the current Constitution said how it would be ratified.   

What does that mean?  Could we write a new constitution?  How would it be ratified?  Could a new constitution be “submitted” to the people of the United States for ratification with every citizen having one vote regardless of where they lived (one person, one vote, one value)?   

Possibilities in a New Constitution

What would a new constitution include?  A “right” to health care and education would be a good start. 

Doing away with the Electoral College, gerrymandering and requiring the U.S. Senate to be chosen based on the basis of one person, one vote, one value would also be good ideas.  Could we think of others?  

Is this at all viable or even advisable?  It all depends on when the level of frustration with characters like Trump and his Republican enablers have been reached.  As mentioned above, the Founding Fathers drafted the constitution lean.  While the constitution is specific in certain areas, much of what we consider as “Constitutional” is actually based on enabling legislation and judicial interpretation. 

Current Presidency

The election of Donald Trump has turned much of existing precedent on its head.  Republicans are his willing partner.  For them, it’s transactional – whatever gets them what they want.  They believe the Constitution and the law can be bent or ignored to suit their purposes.  Truth to them means nothing.  They have their “alternate” facts.  

Should this be allowed to continue?  What would it take – outright contempt of Congressional investigations, spending tax dollars without Congressional approval, the current conservative packed Supreme Court overturning Roe v. Wade?

The President, with the concurrence of an enabling Republican party, now claims he can’t be indicted and Congress has no right to investigate him for “political reasons.”  Since when do politicians do anything that is not political and where does the Constitution prohibit them from doing so?  Donald Trump does not seem to think he is bound by the Constitution or law. 

Democrats need to not only defeat him in 2020 but take control of the Senate and keep the House.  A decision on how far to go with constitutional reform would have to be made then.  It’s not just Trump.  Republicans have placed their bets on ruling this country with a shrinking minority.  Gerrymandering, voter suppression, packing the courts and control of information has become their tools for overcoming the will of the majority and maintaining their rule.   If steps aren’t taken when the opportunity becomes available, it may be too late.