GELFAND’S WORLD-We should understand that we don't amend the Constitution lightly. It was pretty good structurally when it was first written -- the division of government into 3 independent branches, so different from the English parliamentary system, the creation of a non-royal executive branch, and the provision for an independent judiciary were all important inventions.
We have to concede that the enormous problem that the founders could not solve -- slavery -- was somewhat cravenly left to a later time to decide, but otherwise, the Bill of Rights is an inspired piece of work.
We are now faced with a series of terrible Supreme Court decisions that remove authority from Congress and lesser bodies to regulate campaign finance. Still, we shouldn't waste the next generation's time with a Constitutional Amendment that cannot be ratified, nor risk our freedom by holding a new Constitutional Convention.
The Constitution allows two very different paths to amendments. One is the traditional method by which both houses of congress, by two-thirds vote, present the states with a proposed amendment. It requires three-fourths (that is, 38) of the states to ratify a Constitutional amendment. In other words, any 13 states can block a new amendment.
The other method, never yet used, allows the states themselves to call for a Constitutional Convention. It's kind of the reverse of the traditional method, since it begins with the states.
There is a danger with this idea which has been pointed out by Constitutional scholars for many years. The problem is that no matter how tightly the states might try to limit a new Constitutional Convention, there is no Constitutional language which makes any such limitation binding.
The quiet nightmare of the scholars is that any such convention might go rogue, so to speak, and chop out parts of the Bill of Rights, create a new version of states' rights which would effectively limit freedom of religion, or reverse the Roe vs. Wade decision.
Maybe this is as unlikely, but it would not be illegal for a Constitutional Convention to define its own agenda and to take up these questions.
Consider that over the years, there have been powerful social movements to reduce American liberties. During the McCarthy era, the Fifth Amendment came under attack because members of the Communist Party made use of it when confronted by aggressive congressional committees.
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Imagine a Constitutional Convention taking place in 1954, and what the results might have been. All kinds of other protections such as the right to due process in criminal proceedings have come under fire in recent years. Shall we risk those rights?
At the risk of being a bit sardonic, I would say that as a nation, we cherish freedom of speech except when we don't. It's the core principle of American democracy (just like due process is the important principle that limits the excesses of democracy), but everyone has a different personal limit.
What I've noticed is that most people have some particular button that gets pushed, and for them, the First Amendment goes out the window for that particular item. I can remember one person who was all for freedom of assembly except for the day that the American Nazi Party decided to march through Skokie, Illinois.
One high school friend saw a copy of a socialist newspaper and seriously opined that this sort of thing shouldn't be allowed to be distributed in this country. What would now be considered to be fairly soft core erotica, even in literature, was once considered to be so far beyond the pale as to lack First Amendment protection.
We've gotten beyond banning Lady Chatterly's Lover, but there is simply no knowing what a second Constitutional Convention would come up with. One strange idea that the Tea Party groups were recently pushing has to do with the 17th Amendment, which allows us to vote for U.S. Senators. Apparently they would like to repeal it.
An even more dangerous idea is to pass a federal balanced budget amendment. We have three-quarters of a century of experience in the Keynesian notion that sometimes the central government should run a deficit in order to get the nation out of a recession.
We experienced this approach most recently with the stimulus package of federal spending -- economists widely recognize it as contributing to the recovery.
Unfortunately, there is a countervailing political idea that budgets should be balanced every year, and that the only way to effect this goal is to force it into the Constitution.
The balanced budget idea has lost popularity in recent years, but there are more states that have called for this amendment than have called for a rule that corporations are not people, or that political donations can be legally limited.
Maybe we would get lucky, and a new Constitutional Convention would show the wisdom and restraint of Benjamin Franklin and George Washington. Perhaps such a convention would do the things I would like to see done, and avoid doing all those bad things that others have been pushing. I don't think we should risk it. Maybe Americans can come back to the idea a century from now, but it would be wise to wait at least that long.
And then there is the more traditional approach. There are proposed amendments that have been introduced in both houses of congress, intended to reverse the Citizens United decision. That's the one that gives corporations and rich people essentially unlimited rights in terms of campaign donations and spending.
The court's conservative majority (or more properly put, the radical right wing majority) treats monetary campaign contributions as a fundamental Constitutional right, since it involves the right to express one's electoral views in the most direct way.
Let's consider the proposed amendment language introduced in the Senate:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
Let's first of all admit that this isn't a bad first attempt. It gets right to the heart of the matter, namely the perceived need for congressional power to set limits on campaign spending, and to make a distinction between corporations and real human beings.
My qualm is that we've had the First Amendment in place since the beginning, and we've worked our way through a lot of questions about what it means and how it can be enforced. Please notice that the First Amendment doesn't just protect freedom of the press. It also protects freedom of speech, freedom to protest in public, and freedom of religion, which is broadly interpreted to create the separation of church and state.
The crux of the matter is that the current Supreme Court has placed monetary donations in there with freedom of speech. The argument seems to be that your ability to express yourself politically includes your right to write a check.
Most of us recognize this logic as a bit warped. The courts have always interpreted rights such as freedom of speech and freedom to protest as having some limits, particularly when different rights collide. The most obvious collision is when someone's right to a fair trial is endangered by press coverage. The courts allow restraint of free speech in the form of gag orders, when it is a necessary component of protecting some other, equally fundamental, right, in this case the right to an unbiased jury.
In the past, prior to the Roberts court, the legislative power to put some limits on political donations, and to restrain corporate meddling in elections, has been considered to be a reasonable restraint in the pursuit of other compelling needs. Not the least of these needs is the ability to be able to hold free and fair elections, absent the taint of corruption. The perceived corruption involves the effect of excess campaign contributions on the future legislative actions of those who get elected.
I've set down my qualms about the United States inviting a new Constitutional Convention. I don't think it can be limited as to its purposes and agenda, and I don't want to take the risk that it will do mischief.
Likewise, I don't want to see any new Amendment, including the one quoted above, that impinges, no matter how obliquely, on the First Amendment. The failure of the proposed amendment to mention freedom of speech is of concern. The text can be read as excluding that right, albeit limited to the case of corporations and campaign donations.
It can also be read more broadly, and we have a long history of political movements that interpret Constitutional texts in an overly broad way. The fact that some particular word or phrase has been left out of some Constitutional provision has been cited as evidence that the original intent was, in fact, to exclude. There is a very real danger in creating a new amendment that pointedly omits freedom of speech and freedom of religion, while including freedom of the press.
Admittedly, the proposed amendment does not repeal the First Amendment, but it serves to whittle down the language in the Constitution itself, which is currently (and for more than two centuries), about as close to being absolute as we can get.
Still, the Roberts court has done damage to our democracy. How can this damage be repaired? I have a proposed solution, but it is, to some extent, uncertain, and it will take time.
The solution will ultimately come from the appointment of better judges to the Supreme Court, and from a developing sense that many of the Roberts court decisions are wrong. The U.S. Supreme Court has reversed itself at times. It doesn't happen very often, but it can happen.
The Supreme Court also has a long tradition of whittling down overly broad decisions over the course of the years, as the balance of power on the court changes. In other words, the Supreme Court can effectively reverse a bad decision by a series of limited changes.
But to see this happen, we need to have those Supreme Court appointments, and this will take time. We also need to avoid bad appointments, the kind we have seen under recent Republican presidents. In brief, it is important that the Democrats hold the presidency for the next term or two, and that at least by the 2016 elections, the Democrats also hold a majority in the Senate. Under those conditions, we will get justices like Ginzburg rather than like Scalia, and some of the current damage will ultimately be reduced. This is a much more likely scenario for political reform.
I should also point out that it is a waste of time for us to push for the proposed Constitutional amendment at this time.
Everyone understands that the Republicans in the House of Representatives see the money train rolling towards them.
It would be hugely unlikely that a two-thirds vote of all House members could be cobbled together.
This prediction is not entirely rock solid, but I think it is fairly accurate. Also, the likelihood of ratification by 38 states is unlikely, considering how many state legislatures are clearly in the red state column.
And even if the amendment were to pass congress and be ratified, it would still fall upon a future Supreme Court to interpret that dangerous term "reasonable limits," which takes us full circle, pretty much back where we started.
(Bob Gelfand writes on culture and politics for CityWatch. He can be reached at [email protected])
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CityWatch
Vol 12 Issue 74
Pub: Sep 12, 2014
