“Another Stab at the

Constitution”
The New York Times, July 8, 2012
 • Article V states the process of amending the
Constitution. There are two methods for an
amendment to be ratified (something
Michael Rappaport focuses on in his
commentary). The first, conventional
How is the method, is for at least 2/3 of both the House
Constitution (290) and Senate (67) to vote on and
propose an amendment. The amendment is
Amended? then turned over to state legislatures to
vote, now requiring 3/4 of the states (38) to
ratify. Only then will the proposed
amendment become an actual amendment
to the Constitution.
Term limits for Judges (Jamal Greene)
• In a democracy, no one person should wield so much power for so long.
Article III of the Constitution provides that federal judges “shall hold their offices during
good behaviour.” [sic] In practice this language means they serve for life absent voluntary
retirement or impeachment. Were we to draft the Constitution today, we would be wise
to reconsider this provision.
 • As I have suggested elsewhere, clarifying and
expanding the Eighth Amendment could
Cruel and help. It should specifically state that
excessive terms of incarceration are
unusual prohibited, just as it bans excessive fines. It
should expressly prohibit mandatory
punishment sentences so that every case gets the benefit
of individualized attention by a judge. And it
(Rachel should insist that legislatures create a record
showing that they considered empirical
Barkow) evidence about the law's likely impact.
 • But those American citizens who happen to
have been born abroad to non-American
parents — and who later choose to become
“naturalized” American citizens — are not the
full legal equals of those of us born in the U.S.
True, naturalized Americans have always been
Naturalized allowed to serve as cabinet secretaries,
Supreme Court justices, senators and
citizens (Akhil governors. And at the founding, anyone
already a citizen could be president, regardless
Reed Amar) of birthplace. (Alexander Hamilton, for
example, though born in the West Indies, was
fully eligible to serve as president under the
Constitution he himself helped draft.) But
modern-day naturalized citizens are barred
from the presidency simply because they were
born in the wrong place to the wrong parents.
Federalism (Elizabeth Foley)
• Federalism isn't about states' rights. It's about individual liberty. The
Supreme Court emphasized this in Bond v. United States (2011): "By
denying any one government complete jurisdiction over all the
concerns of public life, federalism protects the liberty of the individual
from arbitrary power. When government acts in excess of its lawful
powers, that liberty is at stake." And lest you think this emanates from
the court's right wing, Bond was unanimous.
Electoral College (Alexander Keyssar)
• Moreover, we have learned a lot in the last 225 years about shortcomings in the framers’
design: the person who wins the most votes doesn’t necessarily become president; the
adoption of “winner take all” rules (permitted but not mandated by the Constitution)
produces election campaigns that ignore most of the country and contribute to low
turnout; the legislature of any state can decide to choose electors by itself and decline to
hold an election at all; and the complex procedure for dealing with an election in which
no candidate wins a clear majority of the electoral vote is fraught with peril. As a nation,
we have come to embrace “one person, one vote” as a fundamental democratic
principle, yet the allocation of electoral votes to the states violates that principle. It is
hardly an accident that no other country in the world has imitated our Electoral College.
Amendments (Michael Rappaport)
• The second method is for two-thirds of the state legislatures to call for a constitutional
convention that would then propose an amendment (which, again, would have to be
ratified by the states). This second method has never been used, because the state
legislatures fear a runaway convention. They are concerned that if they call a convention
to draft a balanced budget amendment, the convention will end up proposing an
amendment on same-sex marriage or school prayer.
• The Constitution should be changed to eliminate the possibility of a runaway convention.
The best way to do this is to dispense with a constitutional convention and instead have
the state legislatures agree to propose a specific amendment. But any method that
allows for a working alternative to Congress’s amendment monopoly would be an
enormous improvement.
Second Amendment (Melynda Price)
• I am not naïve enough to believe that doing away with the Second Amendment would do
away with gun violence, but I know firsthand the impact of guns and gun shots on
children. This nation was constructed and reconstructed in the aftermath of violent and
bloody conflicts. Still, the Framers believed that not only the Constitution, but also the
peaceful way the document was created, would penetrate the Americans' minds and
change they engaged. The Constitution would be the only weapon needed unless there
was an external enemy.
Supremacy Clause (Jenny Martinez)
• “Constitution, and the Laws of the United States which shall be made in pursuance
thereof; and all treaties made, or which shall be made, under the authority of the United
States, shall be the supreme law of the land; and the judges in every state shall be bound
thereby, anything in the constitution or laws of any state to the contrary
notwithstanding.”
• But the Supreme Court has interpreted the supremacy clause in ways that contradict its
text and original purpose; the court has suggested that the clause doesn’t mean what it
says as far as treaties are concerned. One of the strangest of these decisions came a few
years ago in a case involving Texas’s failure to notify Mexican citizens facing the death
penalty that they were entitled by a treaty to speak to their consulate. In that case,
Medellín v. Texas, the Supreme Court held that the treaty (and a decision of the
International Court of Justice interpreting it) weren’t actually enforceable against Texas.
Commerce Clause (Randy Barnett)

• "The power of Congress to make all laws that are necessary and proper to regulate
commerce among the several states, or with foreign nations, shall not be construed to
include the power to regulate or prohibit any activity that is confined within a single
state regardless of its effects outside the state, whether it employs instrumentalities
therefrom, or whether its regulation or prohibition is part of a comprehensive
regulatory scheme; but Congress shall have power to regulate harmful emissions
between one state and another, and to define and provide for punishment of offenses
constituting acts of war or violent insurrection against the United States."
First Amendment (Pauline Maier)
• “Congress shall make no law” is a peculiarly stingy way to begin an amendment that
protects the rights of conscience, speech, press, assembly and petition. James Madison
proposed more capacious language for those rights. He would have said, for example,
that “the civil rights of none shall be abridged on account of religious belief or worship,
nor shall any national religion be established, nor shall the full and equal rights of
conscience be in any manner, or on any pretext infringed.” He would also have stated
that “the people shall not be deprived of their right to speak, to write, or to publish their
sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be
inviolable.”
First Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of
grievances.
What’s missing?
Healthcare

Education

Housing

Living wage

FDR proposed an Economic Bill of Rights in 1944. He called it the Second Bill of Rights.

So far, none of these have become actual constitutional rights.

Economic Bill of Rights
• The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;
• The right to earn enough to provide adequate food and clothing and recreation;
• The right of every farmer to raise and sell his products at a return which will give him and his family a
decent living;
• The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair
competition and domination by monopolies at home or abroad;
• The right of every family to a decent home;
• The right to adequate medical care and the opportunity to achieve and enjoy good health;
• The right to adequate protection from the economic fears of old age, sickness, accident, and
unemployment;
• The right to a good education.