1/4/24, 16:33 There is one correct way to amend a Constitution, part 2 of 2

There is one correct way to amend a

Constitution, part 2 of 2
What process amends a constitution while keeping society safe from autocracy?
The answer is two majority votes, separated by some years. This is safer than
requiring a super-majority in a single vote.
LAWRENCE KRUBNER
NOV 04, 2021

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(This is part 2. See part one.)

How should we amend a Constitution?

Should we have a single vote that requires a super majority? In part one, we saw the
problems that the nation of Hungary encountered, with a single super majority vote.
In a crisis, when the public is in a panic, this approach can make too easy for an
angry, populist party to gain power and then amend the Constitution. This is what
happened in Hungary.

Should we amend the Constitution with multiple votes, and a super-majority? In part
one, we saw the problems this caused in the USA. When it is too difficult to amend
the Constitution, people will begin to sabotage it, as it no longer serves their real
needs. They will find ways to cheat, ways to get around it, and then cheating will
become the norm. This is what happened in the USA.

So what is the correct way to amend the Constitution? The answer must be two votes
with a simple majority, in other words, two votes separated by a few years. But how
many years should that be? Maybe 5? Or 10?

The myth of Katechon

Let's step away from reality for a moment, because sometimes an extreme fictional
situation can offer a clarity that the real world lacks. We will talk about the nation of

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Katechon. This small island nation was supposed to be governed as a direct

democracy, but a terrible plague had swept the nation leaving everyone with brain
damage, so that no one could remember things for more than a few weeks. As such,
political gatherings tended to bring together a mass of people who were overly
perturbed by recent events, but unable to remember long-term concerns unless they
were somehow reminded of those concerns by recent events. Gathered together these
people amounted to an ignorant, angry, hysterical mob. Only one person was spared
this terrible plague. Aware that a fully functioning brain was both rare and also
useful in government, the people made this person the Chairman of the assembled
crowd.

Can a government produce good laws if it is run by an ignorant, angry, hysterical

mob that suffers from amnesia? Surprisingly, the answer can be a yes. Katechon had
the happy rule that all laws had to be voted on twice, with the two votes separated by
ten years. Thankfully the Chairman recalled this rule, and reminded the assembled
public of it often.

An example of how this rule lead to good government:

One day a Brazilian person robbed some other citizen. The assembled public agreed
this was an outrage. They immediately passed a law declaring that all Brazilians
should be put to death.

A week later an Algerian person robbed some other citizen. The assembled public
agreed this was an outrage. They immediately passed a law declaring that all
Algerians should be put to death.

A week later a Norwegian person robbed some other citizen. The assembled public
agreed this was an outrage. They immediately passed a law declaring that all
Norwegians should be put to death.

A week later a citizen was driving to the assembly, when their car hit a huge pot hole.
This was clearly an outrage. They proposed a law authorizing more spending on
infrastructure. Other voters had also hit pot holes, so they all voted for the law.

A week later a citizen took their daughter to school where they noticed that school
building was falling apart, with a broken heater and poor insulation and leaks in the
roof. This was clearly an outrage. They proposed a law authorizing more spending on

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the schools. Others had also taken their children to school, and so, knowing the poor
condition of the schools, they all voted for the law.

In every case the Chairman reminded them the laws could not take effect for ten
years, and only if a second vote approved the law, at that future date.

Dutifully, when ten years had passed, the Chairman reminded them of the bills from
ten years before. No one could remember why they'd been angry with Brazilians,
Algerians, or Norwegians, so those bills were defeated at the second vote.

However, the situation with the roads had gotten even worse. The pot holes were
everywhere and as people had driven to the assembly hall they had nearly destroyed
their cars in the now gargantuan craters in the roads. The bill authorizing more
infrastructure spending on the roads was approved overwhelmingly. And likewise,
the situation with the schools had grown even worse, and everyone was now aware
that their children were going to school in buildings that were falling apart. So the
bill authorizing more spending for the schools was overwhelmingly approved.

In this way, an ignorant, angry, hysterical mob that suffers from amnesia can still
pass good laws, because all of the bills that arise from short-term panics are
eventually defeated, but those bills that deal with the public's long-term concerns,
such as funding for the roads or the schools, successfully become laws, exactly
because the concerns around these issues persist over time, and reassert themselves
in everyday life. el problema es tener que hacer esperar a la gente y al problema enfrente por 10 años.
qué termino seria correcto para evitar el panico pero que el Estado no pierda capacidad?
por ahi aunque sea esperar 1 año para que la otra camara lo trate seria suficiente.

I've mentioned before that I spent 20 years writing software, and my career informs o sino 2
años,
my political thinking. In the world of software, developers must work with unreliable pero
habria
hardware that often burns out, plus unreliable software that is full of bugs, plus que
pensar en
unreliable networks that often drop messages, and out of this mass of unreliable un
threshold
parts, a reliable system needs to be built. How is this done? With a large dose of (o simple
decision?)
redundancy. For instance, when sending messages over a network, software can send para
poder
the same message several times, to be sure that it is received at least once. There are aprobar
de prepo
communication systems where 99% of all messages are lost, yet the messages are still pero
condiciona
reliably delivered, because at least one message is delivered, after multiple attempts. l a otro
voto que
A similar strategy can work to ensure that good laws come out of terrible SI NO ES
A FAVOR
se deroga.
governments. Multiple votes is a kind of redundancy, a filter that limits the spam that
might otherwise become law.

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The people of Katechon wait ten years to finalize a law. With this simple rule in
place, the worst government in the world ends up passing laws that are good for all of
society. Even though 99% of all the laws proposed are both stupid and harmful, the
laws that get passed tend to be beneficial, because they arise from the long-term
needs of the people.

Every society needs to find a balance between

stability and flexibility
Again, as we said yesterday in part one of this essay, every society needs to find a
balance between stability and flexibility; every society needs to adapt to change while
keeping the important fundamentals solid. We should actually crave for the law to
change as fast as possible, provided three conditions are met:

1.) that we know the issue is non-trivial (important to a large number of people)

2.) that we know the law does not arise from panic or vengeance or any other hot
emotion

3.) that we know that the bill itself was vetted by many people over a long period, so
that it is technically strong, containing all necessary qualifiers

Would it make sense for Katechon to also have a rule saying that laws should be
passed by a super-majority? Clearly, no, such a rule would be harmful. If an issue can
maintain majority support for ten years, then the issue has already proven that it is a
long-term concern of some importance. It is not trivial, and it does not arise from
some temporary panic. It is an issue that must be addressed. Demanding a super-
majority, after so many years, would only make the system inflexible and brittle.
Requiring a super-majority, after so much time had passed, would again make it too
difficult to change the law, and therefore we would again be facing the problems that
the USA has faced, which we analyzed in part one.

me gusta pensar que para reformas deberian ser 3 votos mas que solo 2.
en 2 terminos no lo rajas al peronismo.

But is ten years the ideal amount of time to wait,

before passing a law?

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Every successful society finds some way to put a bill through multiple affirmations
before allowing it to become a law. According to Herodotus, when the ancient
Persians were on the rise to greatness, they had a rule that all proposals had to be
considered twice, once when sober and once while drunk. Presumably this habit
arose after too many laws were passed while the gathered nobles were in a drunken
stupor, and these laws turned out to be less than ideal. Whatever the origins of this
habit of voting twice, the practice of having more than one vote is the first and most
important step that any assembly can take if it's going to pass good laws. Likewise,
most Western democracies currently insist on multiple steps before a bill becomes
law. Even in countries where the legislature is unicameral, there are often procedural
rules in place that force multiple readings of the law before it can be voted on.

And yet, there will sometimes be a real crisis, such as war, which will demand a fast
response. So “two votes, separated by 10 years” is not really ideal. We need something
more flexible than that.

The size of the majority on a first vote should

indicate how soon the second vote is to be held
Let's imagine what it would mean if it took ten years to push through an amendment.
That would have offered some protection to Hungary -- Fidesz gained power in 2010
and pushed through all of their amendments immediately, and presented this vast
change to the EU as a fait acompli, but if they had to wait till 2020, they would have
been attempting to push the changes through after the EU had time to state its
objections, and after the Hungarian public had ten years to consider what such
changes really meant. A ten year wait does not offer perfect protection against
tyranny, but it is still a potent tool for blocking demagogues who want to use a
specific panic to consolidate their hold on power. Fidesz now hangs onto power
because it controls all of the media, but it gained control of the media because it
changed the constitution in ways that let it drive out all foreign news outlets, and
local news outlets were blackmailed into selling out to oligarchs loyal to Fidesz. If
Fidesz had been unable to amend the constitution, it never would have gained control
of the media, and so it would have faced real scrutiny, and so it would probably less
popular right now.

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Suppose that in the USA a Constitutional amendment could be passed by two

majority votes in the Senate. FDR's National Industrial Recovery Act of 1933 could
have been allowed by the Constitution by 1943. In the case of the Great Depression,
the delay of ten years would have been painful, but perhaps less painful than the
current situation, where more than 85 years have passed, and the expanded powers of
the Federal government still have no justification in the Constitution, at least none
that can be discovered by a good-faith reading of the written Constitution. Bad faith
readings of the Constitution now corrupt the purpose of the high court.

All the same, we must admit, specifying some fixed number of years is not perfect.
What we actually should want is two votes, separated by a certain number of years,
with the number of years shortening based on the strength of the support for the
amendment. In a place like the USA Senate, which has 100 members, we could have a
rule that the second vote must occur zero years in the future, plus one year for every 4
senators who voted against the amendment during the first vote. So assume the
amendment is highly controversial, and during the first vote it passes with a vote of
51 to 49. The math is:

49 / 4 = 12.25

Let's specify a rule that we round that down to 12. So the Senate needs to wait for 12
years before taking the second vote, to see if that amendment becomes part of the
Constitution. For such a controversial amendment, 12 years offers plenty of time for
the opinion of the public to shift, either in favor of the bill, or against it.

But what if a major war breaks out, and suddenly the government needs a new
power? Perhaps the government finds that it needs strict control over the Internet, or
needs to limit discussion of some new technology. Such an expansion of government
would need a Constitutional amendment. In the face of a true national crisis, it might
be possible to get at least 97 senators to vote for the amendment -- in that case, the
second vote can be taken instantly, and the amendment therefore be passed instantly.

All of which is to say, the ideal process for amending a Constitution has to be faster
than the current USA system, but slower than the Hungarian system, and in normal
circumstances it should take a few years, but there should be a mechanism that
allows for instantaneous changes if everyone in the legislature agrees that the nation
is facing a true crisis.

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How would our flexible rule apply to our two examples of Hungary and the USA?

After the elections of 2010, Fidesz held 70% of Parliament. If we translate our
previous rule to this context, we could say that instead of every 4 senators, the rule
applies to 4% of the vote. Assuming most of the votes for Constitutional change
would have been 70% to 30%, then:

30 / 4 = 7.5

so Fidesz would have to wait 7 years before pushing through their authoritarian
takeover. As said above, this would give the Hungarian public more time to re-think
the issue, as well as more time to recover from the shock of the 2008 financial crisis.
After 7 years, the public would see what kind of normal laws Fidesz had passed, and
that has, in real life, tempered the public's trust of Fidesz. It is unlikely that Fidesz
could have carried out their constitutional coup if the EU and the Hungarian public
had been given 7 years to respond.

In the USA, the National Industrial Recovery Act of 1933 passed the house with 81%
of the vote. Following the rule above, with 19% in opposing the act:

19 / 4 = 4.75

So the USA government would have needed to wait 4 years before being able to
confirm that the Constitution was amended in a manner sufficient to support such an
act. That is, the law would finally be Constitutionally legal in 1937. Considering that
FDR did not finally have a compliant Supreme Court until 1937, in our scenario the
NIRA would have been legal at the same time as it was legal in real life, however it
would have been legal because the Constitution was properly amended to make it
legal. No bad faith interpretation of the Constitution would have been necessary, no
blackmail of the Supreme Court, no threats of court packing. A beautiful and
democratic process would have happened:

1. the government needed a new power

2. the government followed the official, formal process for amending the
Constitution and so granted itself this new power

3. the government then rescued the nation from the Great Depression, thanks to the
new power granted by the amended Constitution

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To summarize the whole argument:

1. Why should we want Constitutional change to happen reasonably fast?

Because if the Constitution is too difficult to change, then people will begin to find
ways to sabotage it, and also the sense of unresponsive stagnation only serves to
bring the political system into contempt. (In part one, the example given was about
marijuana.)

2. What is the appropriate limit on the speed with which the Constitution is
amended?

We must ensure the decision is not driven by rage, panic, or any other hot emotion,
but when we can filter out such bad decisions, we should want to see every
amendment, if supported by the majority, to pass as quickly as possible.

3. When should the courts amend the Constitution?

Again, we quote Judge Richard Posner:

“Perhaps the courts are authorized to plug at least the most glaring gaps... We find
it reassuring to think that the courts stand between us and legislative tyranny
even if a particular form of tyranny was not foreseen and expressly forbidden by
framers of the Constitution.”

The courts are meant to be independent and non-political, and so they are corrupted
when they are granted legislative powers. If they must plug "the most glaring gaps"
then the system works best when those gaps are as small as possible, and that can
only happen when the legislature is able to pass amendments with reasonable speed.

Real freedom can only happen in a society that has an accountable political system,
with a clear process for change, guided by the rule of law, and protected by
independent courts. We've seen that such a system was destroyed in Hungary, and we
can plainly see how such a system might be destroyed in the USA. Such a system is
best protected when the Constitution can only be amended at a moderate pace,
slower than what is allowed in Hungary and faster than what is allowed in the USA.

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At this point, you might reasonable ask, "What is the point of this essay? Is there any
chance any such system of Constitutional amendment will ever be enacted in real
life?"

I don't know the answer to that, but I'll say this: democracy is currently in crisis.
Authoritarian demagogues have gained power all over the globe. Putin in Russia,
Orban in Hungary, Bolsonaro in Brazil, Modi in India, Duterte in the Philippines,
Erdoğan in Turkey, Kaczynski in Poland, and, the most dangerous of all, Trump in
the USA. Only by a major mobilization of the public was Trump pushed out after one
term and if he returns it is uncertain whether democracy will survive in the USA.

How does this era end? Will there be fundamental changes to the ways that
democracies operate? None of us know the future, but I suspect many changes will
be necessary before democracy, as a form of government, can again feel like it has the
momentum of the world behind it. I offer this essay to suggest one of the changes
that will need to happen: careful thought should be given to the speed at which
Constitutions are amended.

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