The pseudonym "Philo Vaihinger" has been abandoned. All posts have been and are written by me, Joseph Auclair.

Monday, June 29, 2015

Retention elections for the Supremes?

Ted Cruz thinks they would keep the Supremes honest

I don't.

It's not a bad move but, alone, it won't work.

Our republic needs to be made a bit more national and a bit more democratic.

The reason why the Supremes get away with their dishonesty and the only excuse they have for it (google "living constitution") is that the Article V amendment process is too cumbersome and not just undemocratic but anti-democratic.

Were a more democratic and straightforward process available that excuse for usurpation would disappear.

This is what we have now.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of it's equal Suffrage in the Senate.

Something both more national and more democratic would be as follows.

Let amendments be ratified, instead of by the states as required by Article V, by two-thirds approval (simple majority, you say? OK.) of those voting on the question in three (two? four?) successive national plebiscites, separated by intervals of two years, on the same ballot as elections for federal offices.

In addition to the means specified in Article V, let amendments be proposed by national initiative, some minimal number of signatures being required to get an amendment on the ballot.

That number could be fairly large, but there should be no requirement that the signatures come from more than one state or region or even locale.

Since this is intended as an expression of citizen sovereignty, there should be no restrictions as to political content and no pre-screening for PC or other criteria of moral or political acceptability.

And neither should there be any after-the-fact screening of approved amendments allowing the America classe politique, establishment, or elites, the slightest hint of a veto on the popular will, thus expressed.

Although it would be helpful if the classe politique would take steps to clean up the existing hot mess of lies that is current constitutional jurisprudence by proposing amendments for passage that would make the thing say what the lies say it says, where this is actually likely to be wanted by enough voters, steadily enough.

Amendments to clearly legitimate Medicare and Social Security and Obamacare, for example.

Or the national and not just interstate regulatory power of the Congress.

Or to revamp birthright citizenship to restrict it to children with at least one parent an American citizen or both parents legally resident aliens, say.

Or to specify who is and who is not a person.

Or to introduce sensible qualifying restraint to the absolute language of the First Amendment, and to extend it so as to provide reasonable protection of employees from employers.

Or to clarify which of the amendments in the Bill of Rights do or don't bind the states and locales.

Or to provide a rational legal footing for application or invocation of the equal protection clause.

The trouble is, both parties are very heavily invested in our current arrangements.

And both would likely find such steps toward nationalism objectionable and toward democracy terrifying.

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