Constitution Day: A Day to Remember

Today marks the 231^st anniversary of the signing of the Constitution.  In addition, today also marks my 23^rd birthday, making me roughly one-tenth as old as the Constitution.  When I first learned about Constitution Day, I mistakenly thought it September 16^th.  Perhaps that was because my birthday fell on a Saturday that year.

231 years later, the United States Constitution still serves as the founding document of the Republic, as opposed to France, which has repeatedly “ripped up” its Constitution.  The framers deliberately made the Constitution difficult to amend; any Constitutional amendment requires the support of two-thirds of the members of Congress and the support of three-fourths of the state.  Given the current makeup of the House and Senate, that means any Constitutional amendment would require the support of 67 Senators and 290 members of the House of Representatives.  America now has fifty states; meaning that the state legislatures of at least 38 states must ratify the amendment for it to take effect.

The most recent Amendment to the Constitution, the 27^th Amendment, officially became part of the Constitution in 1992; meaning that for more than a quarter century, no new amendments have been added to the Constitution.  This should not come as that much of a surprise considering the polarization and gridlock that has become synonymous with 21^st century politics.  But that does not mean that members of Congress have not proposed any Constitutional Amendments.  One of the most notable recently proposed Constitutional Amendments, the Federal Marriage Amendment, would have established the definition of marriage as a union between one man and one woman in all fifty states. A handful of Republicans voted against it, citing respect for the principle of Federalism; which the Democrats obviously do not care that much, as indicated by their support of the anti-Tenth Amendment Obergefell v. Hodges decision.

In my column in honor of the Constitution last year, I pointed out how the debate over how to interpret the Constitution has taken place over the last several decades:   

 

For years, a debate has taken place between the left and the right about the best way to interpret the Constitution.  Many on the left believe that the Constitution is a living and changing document that should be interpreted and reinterpreted with a modern eye.  “Living Constitutionalists” believe that constitutional interpretation must evolve as the society evolves.  They also believe that current judges cannot know the intent of the Framers because a collective group cannot have a single intent.  Many on the right prefer originalism, which argues that judges should interpret the Constitution as the framers intended.  Originalists see the Constitution as a binding contract whose principles can be changed only by constitutional amendment, not through judicial interpretation. 

 

 

 

So since conservatives supposedly see value in Constitutional amendments, let’s take a look at some that they should get behind, ranked from most likely to pass right now to least likely to pass right now:

Term Limits: Believe it or not, of all of the most widely talked about Constitutional amendments, this one has the highest likelihood of receiving support from both sides of the aisle.  Freshmen Congressmen Mike Gallagher of Wisconsin and Ro Khanna of California have little in common ideologically; but they both agree that power corrupts and therefore they have introduced a bill that would limit Senators to two six-year terms and members of the House of Representatives to six two-year terms.  However, their plan only applies to the 115^th Congress and beyond.  As much as I like some senior Senators such as Chuck Grassley, who also celebrates a birthday today, and Orrin Hatch, who seems to have developed a new sense of spunkiness in the twilight of his career, the founders never intended for the development of career politicians and our laws should reflect that.

The term limits supporters will have to rely heavily on newer members of Congress; the number of which will exponentially grow after this year’s midterm elections.   The House of Representatives will have at least 62 brand new members this fall; 54 members of Congress opted to retire while an additional twelve resigned prior to the end of their terms.  The reasons for their resignations included taking a job with the Trump administration (Tom Price, Mick Mulvaney, Ryan Zinke, and Jim Bridenstine), embarking on new adventures in the private sector (Charlie Dent, Jason Chaffetz, and Pat Tiberi), taking a job in state government (Xavier Becerra) or abruptly ending their careers due to allegations of sexual misconduct (Trent Franks, John Conyers, Pat Meehan, Blake Farenthold and Tim Murphy).  Voters chose successors for eight of those individuals in special elections, where Democrats celebrated several “moral victories” in addition to one actual victory.  The remaining five seats will remain vacant until Election Day. The death of Rep. Louise Slaughter has left her seat vacant; meaning that a new member of Congress will take her Four incumbents have already lost their seats in primary elections; bringing the total minimum number of Freshmen in the 116^th Congress to sixty-two.  That number will certainly grow; it would come as a huge surprise if every single incumbent in the House of Representatives managed to survive re-election in the fall. It looks like the term limits bill will not gain much traction during the 115^th Congress, which means that its supporters will have to re-introduce it in the 116^th Congress, hopefully with more support. Believe it or not, two-thirds of the members of both houses of Congress have served for six terms or less.  It will take the support of these people for a term limits amendment to pass.

The idea of term limits first emerged in the mid-1990s as part of the “Contract With America” that swept Newt Gingrich and the Republicans into power in 1994. The Citizen Legislature Act only received the support of 227 members of the House, falling quite a bit short. Following the failure of the Citizen Legislature Act to gain traction, several states imposed term limits on their own members of Congress, only for the Supreme Court to find such practices unconstitutional. President Trump attempted to harness the spirit of 1994, which has much in common with the spirit of 1776, with his catchphrase #DraintheSwamp.  A total of fifteen states, primarily red or purple states, have enacted term limits for members of one or both of their state legislative chambers.  A handful of additional states once had term limits but the state Supreme Courts ruled them unconstitutional or the legislatures decided to repeal them. 

Balanced Budget Amendment: Fiscal conservatives definitely have a right to be mad at Congressional Republicans for continuing to support government spending bills that explode the national debt and deficit.  However, Republicans’ failure to rein in Federal spending started long before President Trump.  Believe it or not, of all of the proposals of the “Contract With America,” the Balanced Budget Amendment came the closest to passing.  It passed the House with more than 300 representatives voting in favor of it but it stalled in the Senate thanks to Mark Hatfield, a Republican Senator from Oregon.  Despite the failure of the Balanced Budget Amendment, Congress still managed to pass some balanced budgets in the latter years of the Clinton administration and at the beginning of the George W. Bush administration.  While the Trump administration’s budget blueprint had a ten-year plan for balancing the budget, Congress has not surprisingly decided to go its own way; which means disregarding the budget blueprint for the most part.  Maybe it will take a House Speaker Jim Jordan to actually achieve a balanced budget.  At first glance, it would seem as if only Republicans would jump on board with a Balanced Budget Amendment. Then again, maybe the Balanced Budget Amendment will have the support of more Democrats; since the Democrats suddenly seem to care about fiscal responsibility, citing their concern over a ballooning deficit as a reason for opposing the Tax Cuts and Jobs Act.

 

Human Life Amendment: Pro-choice advocates fear a human life amendment because they know that this presents the only way to illegalize abortion in all fifty states.  Should the Supreme Court decide to overturn Roe v. Wade, it would not have the effect of illegalizing abortion in all fifty states, it would simply give states the green light to ban abortion if they so choose.  Many states already have “trigger laws” that would ban abortion should the Supreme Court decide to effectively overturn Roe v. Wade.  As Lindsey Graham explained during the Kavanaugh confirmation hearings, the Justices cannot simply ask each other  “What are you doing for lunch?  Let’s overrule Roe v. Wade.”  The Justices would have to wait until a “restrictive” abortion law, such as the Iowa law banning abortion after six weeks gestation, made its way to the Supreme Court and then reach a conclusion that it does not violate the Constitution.  (It obviously doesn’t, the Constitution says nothing about abortion).  Pro-life advocates hope that scientific advances will make it undeniably clear that the baby in the mother’s womb amounts to much more than a “clump of cells” and therefore, subsequent generations will become pro-life.  Unfortunately, idiotic statements by younger Americans such as Chelsea Clinton, Lena Dunham, and Michelle Wolf do not give much hope to the idea of an emerging “pro-life generation.” 

Most Human Life Amendments proposed over the past half-century failed to make it out of Committee but one such human life amendment, known as the Hatch-Eagleton Amendment, actually made it to the full Senate for a vote, where it fell short of the two-thirds majority needed for passage.  One of the co-sponsors of the bill, Thomas Eagleton, briefly ran as George McGovern’s running mate in the 1972 Presidential Election but withdrew from the ticket after it became public that he had received treatment for depression.  Far-left McGovern replaced with another pro-life Democrat Sargent Shriver in an unsuccessful attempt to woo centrists; President Richard Nixon still won 49 out of 50 states.  The other co-sponsor, Orrin Hatch, still serves in the Senate today but will retire at the end of this Congress. 

So, happy Constitution Day!  Remember that the Constitution means so much more than  “that book that you carry,” as Kamala Harris described it to Judge Kavanaugh.  For our country to survive, members of the judicial, legislative, and executive branches must interpret and adhere to the Constitution as written or else we will cease to have a Constitutional Republic.