Needed Changes

With Elizabeth Warren calling for the eradication of the Electoral College, one asks the obvious question whether it might not be as well to make a number of changes to our Constitution — a dated document that could well be strengthened. One obvious change would be to address the matter of the infamous Citizens United decision which has opened the road to corruption in the form of unlimited financial donations to selected candidates who will exercise the will of the corporations who support their candidacy.

The Electoral College, of course, was established during the founding years of this nation in order to guarantee that the very best people available would be elected to the highest office in the land. The founders didn’t really trust the people and they felt it necessary to have a buffer, if you will, between the people and the elected officials. Indeed, the representatives are the only group directly elected by the people in the original Constitution and the representatives were presumed to have short terms in order to go back to work after a brief spell at governing (which paid very little). The Senate was to be selected by the state legislators and the Electoral College would select the president — not the people themselves.

Recently, however, we have seen how faulty this reasoning was when the popular vote in the most recent election selected the best qualified candidate for president by nearly three million votes and the electoral college voted against the popular vote and selected a man who has proved to be entirely unqualified for the highest office and, at times, bewildered by what is required of him.

In any event, former Supreme Court Judge John Paul Stevens, who was appointed by a Republican President, wrote a book in which he proposed six amendments to the Constitution that would bring the document more or less up to date. Not only does the Constitution ignore altogether the immense power of the corporations, but it ties the hands of government in important ways. Furthermore, it lacks the necessary checks and balances to the power of the president — ironic because that was the major thrust of the document at the outset.

The first amendment Stevens recommends is an alteration to the “Anti-Commandeering” rule in Article VI of the Constitution which

“unnecessarily and unwisely curtails the power for Congress to make use of state officials in the enforcement or administration of federal law. It creates a serious risk that the federal response to national catastrophes or acts of terrorism will be inadequate; it also impairs the efficient administration of ordinary federal programs.”

A case in point was the Printz case in 1997 following the attempt on president Reagan’s life that would establish instant background checks to prevent felons and persons with mental problems from buying guns. The problem was that state officials simply ignored the court’s decision on the grounds that the Supreme Court cannot direct states officials in their duties. In times of emergencies, such as the shootings of the children and teachers at Sandy Hook, there needs to be a quick federal response that is not hindered by questions of States’ rights. In a word, the problem does back at least to the days of the “states rights” battles that preceded the Civil War and are still hiding deep in the words of the eighteenth century Constitution.

Stevens would also introduce amendments to the Constitution that would prohibit political gerrymandering; modify campaign finance laws in order to reduce “the power of the purse in determining the outcome of elections [see above]”; the elimination of the supposed immunity of state agencies or state officers from liability for violating an act of Congress; the inclusion of the words “the death penalty” in the clause prohibiting “cruel and unusual punishment,” thereby eradicating the death penalty in all states due to the fact that it does indeed constitutes cruel and unusual punishment. And finally, Stevens proposes the insertion a simple phrase in the Second Amendment making clear the founders’ determination to arm the militia but not the entire population of the country. The Amendment would then appear as follows:

“A Well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.”

The phrase in italics would be added and the original intent of the founder made clear. The Amendment is not about the right of every Tom, Dick, and Sally to bear arms. It is about the need for an armed militia to protect the nation from foreign enemies.

In the end, whether one agrees with Stevens or not, it is clear that a document written in the eighteenth century by remarkable men who had the best interest of their country at heart is today lacking in adequate protection from the very thing they most worried about: corruption and the abuse of power. Surely, it’s time for change. Let’s start with the Electoral College!