Amendments and Republican Renewal

Have just finished a series of lectures on CD concerning Macchiavelli’s writings, which places particular emphasis on the Discourses on Livy.

Towards the end of Machhiavelli’s third discourse, he praises the Roman Republic for periodically renewing its institutions. Sometimes that renewal took the form of instituting the office of censor, which revised who could be members of the various formal political classes. Sometimes that renewal took the form of a revision of the structure of the government, such as the creation of the consulship as superior to the praetorship and the evolution of a cursus honorium to both structure a rising politician’s career path and to sort out the men of great ability from the men of middling ability. Sometimes it took the form of creating entirely new institutions of government to address inadequacies in the status quo ante, such as the creation of the tribunate of the plebs. Of such periodic adaptations, Macchiavelli says, is a healthy and effective republic created.

The obvious question is, does our republic have a similar need?¬† If so, is that need being met?Our government’s basic structure is susceptible to adaptation, both informally through cultural developments and formally through the process of amending our Constitution. It’s not a question of whether we can mold our form of government.

As a formal matter, it has been quite some time since this has been done in any meaningful sense — far too long, according to either Macchiavelli or Jefferson, who advocated renewal, reform, and revision of the forms of government every ten years and every generation respectively. The price paid for failing to periodically revise the structure of our collective government, Macchiavelli warned, was ossification and polarization of the body politic such that eventually, conditions would become ripe for either conquest from without or reversion to dictatorship (rule by a price, in Macchiavellian phrasing) from within.

In my lifetime, the voting age has been confirmed at 18 (about half the states had set their voting age there before this), the Equal Rights Amendment died an inexplicable death, and members of Congress were denied the ability to vote themselves an immediate raise. But allow me to suggest that as far as structural reforms to our Federal government go, the last time the Constitution was altered in a significant way was sixty years ago, when any individual’s total time in service as President was limited to a maximum of ten years. Barring poll taxes, modifying the order of Presidential secession, and even electoral college votes for DC, have not had any significant effect on the way we have governed ourselves. But at least two Presidents (Reagan and Clinton) would have stood strong chances of being elected to third terms had they been allowed to have stood as candidates, and I think Bush could have been a strong contender despite the economy.

So what serious proposals are out there to structurally modify the Constitution? I can identify three that have gained enough political purchase to have merited some discussion. On balance, I’m not a fan of any of them, but the point is not to change the Constitution for change’s sake, but rather to have a serious, and if possible objective, examination of how our government is supposed to serve us and ways that it could be made to serve us better.

In that sense, the floating of the idea of empowering a supermajority of states voting to repeal federal laws is a timely event, one that should be welcomed even by those who oppose this particular kind of reform, because it gets people talking about what they want their government to look like. The proposed “repeal” amendment would read:

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.

Now, I’m not at all sure that this is a necessary idea. If citizens of a state are opposed to a particular law, it seems to me that they will let their Congressmen/women and Senators know this in one form or another, and their elected representatives will behave accordingly (if they want to keep their jobs, something which most of them seem to want to do). If an idea is unpopular enough that the legislatures of two-thirds of the several states vote to nullify it, it seems to me that chances are pretty good that Congress will repeal or reform the law long before this amendment would ever kick in to effect, so that the incumbents can claim that they were effecting the will of the people. Nevertheless, it’s not an awful idea in theory to have some kind of a check back against the Supremacy Clause, particularly one which reflects the democratic decisions of the people as a whole.

There have been proposals to repeal the Sixteenth Amendment, and allow states to choose their U.S. Senators in any manner they see fit. Some might be appointed by their governors, some might be appointed or confirmed by their state legislatures, some might still be popularly elected. Popular election of Senators seems like a rather good idea to me, and the institution of the Senate has not exactly been watered down by plebians since the Sixteenth Amendment was instituted. It remains one of the most exclusive clubs in the nation, one which has an extremely high monetary price for entry and the members of which are, with only very few exceptions, among the ranks of the wealthiest of all Americans. The Senate remains a contrarian and in some was anti-democratic institution, with its tradition of filibusters, gentleman’s holds on nominations, and collegial debate valued over representativeness. It has also become fashionable in some quarters to suggest serious reform if not complete abolition of the Senate for these very reasons.

Abolishing the Senate seems like a rather drastic step to take in response to frustration about its deliberations felt by one or another party, and both have had cause within recent memory to have been very frustrated at the dealbreaker role the Senate has played over the past several years. Reform of the Senate could be as simple as changing its internal rules; there is a serious argument to be made that the filibuster in its current form is not a good thing. I might suggest that a reform whereby a coalition of Senators was required to filibuster rather than a single one, and although this would end forever the appealing vision at the end of Mr. Smith Goes To Washington, in fact the real use of the filibuster has been considerably less palatable than Jimmy Stewart standing up for the Boy Scouts Junior Rangers.

There is also discussion of an amendment to end citizenship granted to people simply because they were born within the geographic limits of the United States. Once again, I don’t see the policy reason behind this movement as based on good facts and at least here on the Intertubes those who advocate it have in my experience tended to offer nasty emotional arguments that anchor babies are somehow an existential threat to the United States and relying on attaching code words like “invaders,” “thieves,” and “criminals,” to infants, rather than offering sober economic or demographic reasons to explain why in the future we would be better off with fewer citizens rather than more. We have always relied heavily on immigrants to supply and renew our population and now is no different.

Now, it happens that these proposals for constitutional amendments all are popular with at least some segments of the conservative side of the political spectrum, although discussions of reform of the Senate is fashionable on the left as well. The exact form of the reform proposals seems to reverse every time majority control of the Senate switches, which ought to strike no one as a coincidence; as recently as 2006, Republicans were bemoaning the power of the filibuster and threatening to invoke the “nuclear option” of abolishing it, while Democrats were insisting that it was vital bulwark of our constitutional scheme. But to my mind this underlines the fact that a serious debate about how our government is structured and how it can better work for us in contemporary economic, demographic, and technological circumstances needs to be one that takes place on a level where partisanship is not the primary consideration.

If Macchiavelli was right, and we have waited too long to engage in serious discussion of these proposed reforms, then the first question most people would have about a proposed reform is whether or not the reform would benefit Democrats or if it would benefit Republicans. If citizenship eligibility is narrowed, that favors Republicans because there will be fewer children of immigrants becoming citizens and presumably those children would vote Democratic rather than Republican. If the filibuster is repealed, the Democrats will be better able to move legislation through the Senate and will be able to implement more of President Obama’s agenda. These kinds of considerations can’t be the top concern about amending the Constitution or reforming our government.

Reforms of government must confront real problems and real shortcomings in our polity. The real reason none of these proposed reforms appeal to me is that I do not believe they address real problems. It is true that to some extent, the existence of states and rendering Delaware equally powerful with Florida in one institution of government is anachronistic and counter-democratic. But it’s not so counter-democratic that the government can’t function when it really needs to.

The real problem that I see is fiscal and financial in nature — we have a government that insists on handing out goodies paid for by mortgaging the future. We have been addicted to debt for generations, so much so that we have created an economic system in which large numbers of people, particularly the elderly who are less able to work, are already dependent upon the government for money in the form of Social Security and health insurance in the form of Medicare. This was so before Obama took office; Republicans were just as quick as Democrats to implement Medicare Part D. The problem of providing goodies to the public financed by debt transcends partisan alignment.

It appears to me that the overall structure of the government is working more or less correctly. But what I see missing from a discussion about how we might make our Constitution work better for us is an understanding that the government must be made to handle the public fisc in a mature and responsible way. While setting hard-and-fast limits on Congress and the President’s discretion in doing so may not be a good idea, it does seem that without some kind of non-overridable guidance, the current road to ruin will be followed until our national debt reaches a point that we become like Greece, Iceland, or worse yet, a third-world nation that needs to be bailed out by the World Bank.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

One Comment

  1. For what it’s worth (probably not much), I have a plan to reform the senate. So if you’re interested in reading my ponderous prose, feel free to follow this link:

    My hope–in addition to getting more people to read my blog–is that it would address at least some of the present concerns about the imperial presidency (I would make the senate more of a check on the president and less of a legislative body). It probably wouldn’t really address the concerns you mention in your last paragraph about curtailing public spending.

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