The United States, 330 million of us, formed in revolution and in victory over the world’s then mightiest empire, has been governed by its Constitution for 231 years, yet we have had four different Constitutions.
Our first Constitution, for less than three years, lacked the Bill of Rights. The Bill of Rights was no sure thing—if James Madison had not won a narrow victory in a Virginia Congressional race in 1789, we would not have the Bill of Rights in its present form. Our second Constitution, from 1792, included the Bill of Rights but was a white man’s Constitution, in law and in fact. Slavery and racial distinctions were part of American law, including the Constitution.
Our third Constitution arose after the Civil War, when we added the 13th, 14th, and 15th Amendments to abolish slavery and guarantee more rights for all. During the Progressive era, we authorized the federal income tax that made big government possible (Amendment 16), instituted direct popular election of U.S. senators (Amendment 17), and extended the vote to women (Amendment 19). That created our fourth Constitution, the one we live with today, with relatively minor changes since the Progressive era.
The Constitution is rarely amended and no amendment has been ratified since 1992. A successful amendment is normally approved by two thirds of each house in Congress before it is ratified by three fourths of the states. No voter or elected official wants to have anything bad in the Constitution, so what would it mean to “compromise” regarding the Constitution and why would we do so?
Compromises of various sorts were what made the Constitution in the first place, understandable compromises between big and small states and between advocates of capable government and those suspicious of government tyranny. There was also the morally indefensible compromise between slave states and relatively free states, redeemed in blood three generations later.
Today the left and the right each have proposals for worthwhile and important Constitutional amendments, with both proposals demonstrating considerable support. As there is no requirement that a Constitutional amendment be restricted to one subject, let’s compromise and put both of these worthwhile proposals into one amendment.
The left’s proposal is to replace the Electoral College with election of the President by voters. In 2000 and in 2016 we elected a President who lost the popular vote. A National Popular Vote compact has been ratified by 15 states and D.C., indicating growing support for reform. A recent court decision supporting the right of electors to vote for candidates other than those they are pledged to increases the risks of the Electoral College system.
The Electoral College’s creation was due to a mix of slave state interests (as non-voting slaves still increased their number of electors), small state interests (as the small states had greater representation per person), and fear of too much democracy. Today many on the right and many in Wyoming still favor the existing system, believing it is in Wyoming’s interests. Wyoming is a solid Republican state and has not voted for a Democrat for President since LBJ in 1964. In the present system, Wyoming is flyover territory, taken for granted by Republicans and ignored by Democrats. In selecting a President, every Democrat in Wyoming doesn’t count just as every Republican in California doesn’t count. In a direct popular vote for President, all votes count, electioneering and debate will be robust nationwide, and voter participation will increase. “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage....”—Universal Declaration of Human Rights.
The right’s proposal is that the federal budget should normally be balanced, as a constitutional requirement. The utter failure of Congress to maintain any fiscal discipline, a budget deficit in 77 of the last 89 years, trillion dollar annual deficits, and total debt of over $23 trillion all make a strong case for such a change.
Congress has not acted on a balanced budget amendment even when Republicans had control. Article V of the Constitution allows two thirds of the states to call a constitutional convention to propose amendments. In the 1980s fiscal conservatives led by the National Taxpayers Union came close to calling a convention of the states to approve a balanced budget amendment. If they had succeeded we would have $20 trillion less debt. Convention of the States is a well organized current effort to call a convention and has passed legislation in 15 states. A dozen other states passed earlier legislation calling for a balanced budget amendment.
So let’s get together, left and right united, to enact the 28th Amendment:
1. The President and Vice-President of the United States shall each be elected by direct popular vote. Sections 2, 3, and 4 of Article II are repealed. Amendments XII and XXIII are repealed. No person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
2. Voters for President and for Vice-President shall be citizens of the United States, its territories, or its possessions and shall be 18 years of age or older.
3. If a candidate for President or for Vice-President does not achieve a majority, the top two candidates in each such race shall compete in a run-off election four weeks after the first election.
4. Total federal outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless two thirds of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a roll call vote.
5. If the federal government is not in compliance with section 4, then it shall not increase its outstanding debt or debt equivalents above previous levels.
6. Congress shall have power to enforce this article by appropriate legislation.
It is time to be the United States, not the Factional States, of America.
Martin L. Buchanan is a writer and software developer living in Laramie. Email: MartinLBuchanan@gmail.com.