“If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.”
~ Antonin Scalia
Article V of the United States Constitution offers two ways to begin and carry through the amendment process. One is when two-thirds of a quorum of each house of Congress – the House of Representatives and the Senate – vote to amend, which amendments are then sent to the states to ratify, thirty-eight of fifty being required for ratification. Note that ratification can be done either in the state legislatures or by a ratification convention, which would bypass the state legislature.1 The other way is for two-thirds of the states’ legislatures to petition congress to call a convention.
This, by the way, is why the Second Amendment has always been fairly safe from repeal. It is also why the anti-gun left has generally turned to administrative procedures and fundamentally lawless judges to try to get the gun bans of their dreams.
There is a trick there. It’s never been done but that, given the looming emergency, is not a sufficient reason for not doing it. A normal quorum is a simple majority of each house, thus an amendment could be passed or ratified by about one-third of each house. In other words, thirty-four senators would be sufficient to ratify the Senate’s half if only fifty-one were present, where fifty-one would be sufficient to constitute a quorum. Thus, forty-eight red state senators and three sympathetic conservatives from wishy-washy states would be sufficient to constitute a quorum. Thirty-four of those voting for a series of amendments would be sufficient to pass those amendments through the Senate. The numbers for the House of Representatives would be, respectively, two hundred and eighteen (or, to be safe, two hundred and twenty-one2) and one hundred and forty-six (or, again being safe, one hundred and forty-eight).
So picture, if you will, sometime after a disastrous Eighth of November when the Hildebeest has – in our little nightmare scenario – been voted to be the next President, that the requisite number of senators and representatives assemble in, oh, say, Mississippi, and vote to amend the Constitution in the following ways (a sampling, only; there will be more, I am sure):
Amendment XXVIII (Originally Amendment XVI): The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.
That’s the death of the administrative state.
Amendment XXIX: IQ tests may be used in hiring, irrespective of any claimed or actual disparate impact.
This gets rid of the need for young men and women to submit to propagandization and brainwashing masquerading as education, which culturally Marxist farce also makes them debt slaves, often for life, in order to get a decent job.
Amendment XXX: No federal funds will be given, nor loans to student made, for colleges and universities, or students attending colleges and universities, that impose speech codes, provide safe spaces, have racist or otherwise racially motivated admission policies. Any such universities or colleges shall lose their federal tax exempt status.
This should put a stop to most, but probably not all, of academia’s attempts at thought control.
Amendment XXXI: The Seventeenth Amendment is hereby repealed. Henceforth, as in times prior, in accordance with Article I, Section 3, senators will be elected by their state legislatures.
This may be somewhat controversial. My answer is that direct election just gave us a different but equally bad set of problems, while increasing the power of the federal government at the expense of the states. In effect, it unbalanced our national balance of power.
Amendment XXXII: The Sixteenth Amendment is repealed. (That means getting rid of the income tax.)
Need I address this one?
One can imagine a number of other promising lines of reform, ranging from mandatory militia training and service to balancing the budget to adding a new definition of “War” which would allow us to round up, try, and hang journalists and professors, not to mention asshole “activists,” with gleeful abandon. I would particularly like one that requires the federal government to arm with the latest Army rifle, two hundred and forty rounds, and adequate magazines for the ammunition, all adult citizens of the United States, to be kept within arm’s reach at all times and in all places. Oh, and a bayonet; mustn’t ever forget the bayonet.
Of course none of that has an ice cube’s chance in Hell of ratification in a fifty-state union. Conversely, neither does the Constitution permit of any way to get rid of a properly passed motion for amendment short of letting the clock run out on it. Those amendments, all enacted properly, will be out there for a very long time.
Moreover, the law is a funny thing. It’s not just what congresscritters and judges, nor dictators and Democratic dildos say it is; if it were then Roe V. Wade would not have been under pretty much continuous and continuously increasing attack for the last forty-three years, which attack shows no sign of abating even yet. The other aspect of law, an aspect usually lost on liberal judges and activist lawyers, revolves around what people think is right, what they hope for and dream of, what their instincts advise them would be for the better. For example, one would have expected Brown v. Board of Education to have raised as much or perhaps even more ire and angst than Roe did. It didn’t happen because, although it turns out not to have worked out to anyone’s general advantage, least of all that of Black Americans, Brown was widely seen as the right thing to do.
So do not presume that the mere fact that those amendments will never be ratified in a fifty-state union means they are of no effect. In addition, to give them still more effect, I would suggest the creation of a shadow Supreme Court, composed of the conservative justices currently on the Court, minus Roberts and with none of the liberals, along with another six more clearly conservative jurists. Let the Senate keep the official Supreme Court stymied at four to four, while the unofficial, shadow Court renders and publishes judgments in accordance with traditional constitutional scholarship. Then watch people stop looking to the ineffectual tie as their gaze drifts to the more effective shadow. Watch, too, as the retained presence in congress makes it a farce, in no way more effective than the shadow congress that would be the proto-constitutional convention.
Lastly, we would need an executive. There are lots of ways to do that, from a rotational position among the delegates to the quasi-Con-Con, to a select committee, an ephorate, of five delegates, to God knows what. Until such time as the administrative state can be dismantled, which is to say until the executive’s powers are scaled back to something like they were, oh, say, circa 1859 or so, I’d suggest the ephorate approach.
Next week: Getting ready for war.
Don’t miss Part I in this series.
1 This has only been done once, for the 21st Amendment, which overturned Prohibition, the 18th Amendment. It would seem to be most appropriate when it is politically impossible for state legislators to face up to the wrath of self-righteous do-gooders and especially fanatical, self-righteous, doo-doo-gooding women.
2 There are six non-voting members who still get a voice. Whether they are included in the requirements for a quorum is perhaps a point of argument. But why argue and why risk anything; just count them and head off the charge of failure of quorum.
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Tom Kratman is a retired infantry lieutenant colonel, recovering attorney, and science fiction and military fiction writer. His latest novel, The Rods and the Axe, is available from Amazon.com for $9.99 for the Kindle version, or $25 for the hardback. A political refugee and defector from the People’s Republic of Massachusetts, he makes his home in Blacksburg, Virginia. He holds the non-exclusive military and foreign affairs portfolio for EveryJoe. Tom’s books can be ordered through baen.com.
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