Constitution? We Don’t Need No Stinking Constitution!



I was going to write about this, but my friend Cato at his Letters From Cato blog has already done so:


 .  . . and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. – Article V, U.S. Constitution

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. – 17th Amendment of the U.S. Constitution

Even a curmudgeon like me will concede that not all debates over constitutional meaning are crystal clear. Interpreting original meaning (or intent, if you prefer) can be difficult. Trying to determine whether the freedom of speech clause of the first amendment really applies to political donations, or whether the first amendment even applies to the federal government at all, is not necessarily black and white.

But then there are certain clauses which are really not open to interpretation. There’s no creative way to argue that a 31-year old man born and naturalized in France is eligible for the presidency. Similarly, the equal composition of the Senate is laid out in black and white throughout the constitutional text. More importantly, this is one element of the constitution that cannot simply be amended by the traditional process. As laid out in Article V of the U.S. Constitution, no state can be deprived of equal suffrage in the Senate without its consent. This means that for all practical purposes equal suffrage in the Senate cannot be altered unless every single state assents to this change, which really means that equal suffrage in the Senate cannot be altered. This would seem pretty straightforward.

Not if you’re a writer for the Atlantic with a day job teaching Legal Studies at Business Ethics at Wharton, because Eric Orts has a proposition for you: we’ll just legislate this pesky hindrance away. No, seriously:

There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.

So how do you get out of the clear constitutional prohibition against this change? Legislation, of course:

First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.

Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”

There are so many logical problems with this that you can drive a truck through them, and fortunately Charles Cooke has done the job natural-born Americans won’t do:


Go here to read the rest.  Devices like written constitutions only work when all the major political players agree to play by the rules of the game.  When that is not the case, bullets inevitably take the place of ballots.  There is an ever growing element on the port side of our politics giving off continual signals that they respect our Constitution about as much as they respect their fellow citizens who do not share their political prejudices.


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  1. Go here to read the rest. Devices like written constitutions only work when all the major political players agree to play by the rules of the game.

    That hasn’t been the case for about 80 years now. The law faculties are happy to manufacture all sorts of tortured generalizations.

    I’m wagering we’d be better off with what prevails in Israel – a body of constitutional law but no discrete charter with entrenched clauses – than we are with the fraudulent system we have now.

    What’s disconcerting is how readily partisan Democrats have dispensed with every procedural norm while striking the most absurd poses. We have constant lawfare, routinized vote fraud, a media who collectively haven’t an ounce of integrity, and an academic community who are a silly and repulsive agglomeration of Bourbons. And, in the midst of all this, it looks like China would like to mix it up for no other reason than they feel like it. Our response to them will be hampered because a critical mass of our elites and our professional-managerial class are unpatriotic by default.

  2. How do losers respond to losing?

    They try to change the rules.

    Anyhow, unconstitutional laws, e.g., any form of gun control, are null. Each free man is in and of himself the supreme court. One simply needs to be prepared to face the consequences.

  3. This Orts fellow seems to be cut from the same cloth as TN Rep. Steve Cohen, who wants to abolish the electoral college & limit the Presidential Pardon Power.

    The next iteration of Calvinball Constitutionalism is going to be a full contact sport.

  4. When the constitution (like truth itself) serves the devious purposes of the God-loathing left, they’ll praise it, and sing of its wisdom from shore to shore. When it becomes an impediment (like truth) to their agenda of fundamentally changing (destroying our freedom) America, they’ll damn its every word.
    The senate we can eliminate as “unfair” they say, but dare to question their magical discovery of emanations from penumbras that allow some 60 million innocent Americans to be legally slaughtered in the sanctuary of their mother’s womb and watch the faux patriotism and legalisms magnify.

  5. This Orts fellow seems to be cut from the same cloth as TN Rep. Steve Cohen, who wants to abolish the electoral college & limit the Presidential Pardon Power.

    Theses ideas can be debated on their merits, and could be properly enacted per standing procedures. The problem is when systematized intellectual fraud is used to argue for gross violations of the law.

  6. Excellent, Art Deco.

    Money quote: “. . . elites and our professional-managerial class are unpatriotic by default.” Even worse: they fear and loathe ordinary Americans because elites’ ingenious policies/programs have harmed we the people.

    In addition, the elites are losers. Everything they did and everything they push is harmful to ordinary Americans.

    If you have difficulty falling asleep . . .

    22 March 2017, Never Yet melted quotes Glenn Reynolds. “. . . points out that when members of today’s establishment class of credentialed experts complain that ordinary Americans commonly reject their scientific consensus on Climate Change, their moral consensus, and their economic and policy consensus, there are reasons that the prestige and authority of the credentialed experts class have dramatically declined within the lifetimes of the Baby Boom generation.”

    [T]he “experts” don’t have the kind of authority that they possessed in the decade or two following World War II. Back then, the experts had given us vaccines, antibiotics, jet airplanes, nuclear power and space flight. The idea that they might really know best seemed pretty plausible.

    But it also seems pretty plausible that Americans might look back on the last 50 years and say, “What have experts done for us lately?” Not only have the experts failed to deliver on the moon bases and flying cars they promised back in the day, but their track record in general is looking a lot spottier than it was in, say, 1965.

    In the realm of foreign affairs, which should be of special interest to the people at Foreign Affairs, recent history has been particularly dreadful. Experts failed to foresee the fall of the Soviet Union, failed to deal especially well with that fall when it took place, and then failed to deal with the rise of Islamic terrorism that led to the 9/11 attacks. Post 9/11, experts botched the reconstruction of Iraq, then botched it again with a premature pullout.

    On Syria, experts in Barack Obama’s administration produced a policy that led to countless deaths, millions of refugees flooding Europe, a new haven for Islamic terrorists, and the upending of established power relations in the mideast. In Libya, the experts urged a war, waged without the approval of Congress, to topple strongman Moammar Gadhafi, only to see — again — countless deaths, huge numbers of refugees and another haven for Islamist terror.

    It was experts who brought us the housing bubble and the subprime crisis. It was experts who botched the Obamacare rollout. And, of course, the experts didn’t see Brexit coming, and seem to have responded mostly with injured pride and assaults on the intelligence of the electorate, rather than with constructive solutions.

    Then there’s the problem that, somehow, over the past half-century or so the educated classes that make up the “expert” demographic seem to have been doing pretty well, even as so many ordinary folks, in America and throughout the West, have seen their fortunes decaying. Is it any surprise that claims to authority in the form of “expertise” don’t carry the same weight that they once did?”

  7. “Go here to read the rest. Devices like written constitutions only work when all the major political players agree to play by the rules of the game”
    All players, all people have ratified our Constitution and our Declaration of Independence. As people are born into the states, Their valid ratification become real as citizenship. These people are free to leave if ratification does not make them happy.
    past tense: ratified; past participle: ratified
    sign or give formal consent to (a treaty, contract, or agreement), making it officially valid.
    synonyms: confirm, approve, sanction, endorse, agree to, accept, uphold, authorize, formalize, validate, recognize; sign

  8. God made all things and keeps them in existence. “And for the support of this Declaration with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor” ratified by every person in every state.
    “We, the people” are all generations, our Founding Fathers who pledged their Lives, their Fortunes and their sacred Honor and all future generations who may not be denied our Founding Principles.
    Our Constitution is written for the Posterity of our Founding Fathers.
    Clarification may not change the meaning nor can penumbras and emanation violate “the Laws of Nature and Nature’s God”.
    Increasingly, “We, the people” are being relegated to subject status to be taxed instead of constituents to be represented.
    The administrative state does not have a constituency
    To use our constituency to emasculate and abrogate our Constitution is treason.

  9. Whom the Left call “experts” are not, particularly on climate change. There is NOT a consensus on the validity of AGW (anthropic global warming). I speak from a background in physics, history of science (and geological climate history) and statistics.

  10. Perhaps, Jefferson had a point when he wrote to Madison, “On similar ground it may be proved, that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation: they may manage it, then, and what proceeds from it, as they please, during their usufruct. They are masters, too, of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors are extinguished then, in their natural course, with those whose will gave them being. This could preserve that being, till it ceased to be itself, and no longer. Every constitution, then, and every law, naturally expires at the end of thirty-four years. If it be enforced longer, it is an act of force, and not of right. It may be said, that the succeeding generation exercising, in fact, the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to thirty-four years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be, indeed, if every form of government were so perfectly contrived, that the will of the majority could always be obtained, fairly and without impediment. But this is true of no form: The people cannot assemble themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils, bribery corrupts them, personal interests lead them astray from the general interests of their constituents; and other impediments arise, so as to prove to every practical man, that a law of limited duration is much more manageable than one which needs a repeal.”

  11. Jefferson also thought that a bloody revolution was needed every generation, which is to be expected I guess from a fellow who never saw a day of military service in the American Revolution. For a man with his pacifist tendencies he had a decided love for chaos and disorder, so long as his neck was not on the line, as demonstrated by his idiotic fondness for the French Revolution. Thomas Jefferson had a very good day when he wrote the Declaration of Independence. Much of the rest of his legacy is highly dubious.

  12. “Perhaps, Jefferson had a point when he wrote to Madison”

    No, no he did not, and Madison didn’t think so either. Here is Madison in Federalist 49, responding a suggestion his good friend Thomas had made:

    that as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.

    If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated. When the examples which fortify opinion are ANCIENT as well as NUMEROUS, they are known to have a double effect. In a nation of philosophers, this consideration ought to be disregarded. A reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason. But a nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato. And in every other nation, the most rational government will not find it a superfluous advantage to have the prejudices of the community on its side. The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society. Notwithstanding the success which has attended the revisions of our established forms of government, and which does so much honor to the virtue and intelligence of the people of America, it must be confessed that the experiments are of too ticklish a nature to be unnecessarily multiplied.

    We are to recollect that all the existing constitutions were formed in the midst of a danger which repressed the passions most unfriendly to order and concord; of an enthusiastic confidence of the people in their patriotic leaders, which stifled the ordinary diversity of opinions on great national questions; of a universal ardor for new and opposite forms, produced by a universal resentment and indignation against the ancient government; and whilst no spirit of party connected with the changes to be made, or the abuses to be reformed, could mingle its leaven in the operation. The future situations in which we must expect to be usually placed, do not present any equivalent security against the danger which is apprehended. But the greatest objection of all is, that the decisions which would probably result from such appeals would not answer the purpose of maintaining the constitutional equilibrium of the government.

  13. “Thomas Jefferson had a very good day when he wrote the Declaration of Independence. Much of the rest of his legacy is highly dubious.”
    For those who would denigrate our Declaration of Independence because of its authorship, The Declaration was ratified by every state. Thomas Jefferson not so much.

  14. Jefferson thought the way Jefferson did because Jefferson was perpetually in debt and didn’t like credit holders. Jack Rakove paints Jefferson as the original limousine liberal in Revolutionaries. Good book.

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