The Unlikely Convention v. Working the System

My friend Mike Judge (not of Office Space and King of the Hill fame, but equally awesome) and I once debated the merits of the United States needing another Constitutional Convention. Granted, Mike had had a good deal of rum prior to this conversation and I had finished of the majority of a sixer of Red Stripe (in their short, ugly bottles) so it may have the same weight of a talk about politics between Captain Jack Sparrow and the Jamaican guy in the Red Stripe commercials.

But I digress. Mike argued that we, as a nation, were in desperate need of radical redesign of our country's system of governance and that I, as the comparatively more old timey conservative (I like to think of myself as a 'classic liberal') of us argued that if we wanted change in the system we had to go through the system and let democracy play itself out.

Where is this going? Today, I read a very interesting piece by Patrick over at Popehat about the creation of a third legislative house, which would act to repeal outdated, ill-conceived, or just straight-up bad federal laws. Why?

It’s not that all laws are bad. We’re not base anarchists. It’s that lawmaking no longer resides, if it ever did, with the people. Conversely, the individuals who are responsible, under the Constitution, for passing these laws seem utterly ignorant of the law themselves. The days when even an attorney could be described as “learned in the law” are long gone. Today we have attorneys who specialize entirely in such arcane niches as regulatory permitting for power plants, or nursing home standards litigation, or Medicare fraud defense. And the laws pile up.

He goes into great deal explaining how it would work and demonstrating how it would not upset/be disrupted by the checks and balances of the other legislative bodies and other branches of government. And as the title of his post suggests, this is something that should be brought up at the next available Constitutional Convention.

But as one of his commenters responds:

It’ll never happen, and never should.

This is an example of the phenomenon where someone sees a problem and fixes it by creating something completely new, rather than going back and fixing the actual source problem. You know, the same way Congress does it.

In other words, creating a completely new Constitutional branch or body to correct the excesses of the existing branches, particularly their tendencies to overlegislate by adding laws instead of repealing or reworking existing law, is ironic at the least.

And I think this is kinda right. While it's nice to imagine a whole different system that we can drop into place via Constitutional Convention, it's not going to happen. Those in power would never allow it to happen unless they were the ones who came up with the idea in the first place, and even then it's an unlikely maybe at best. The Founding Fathers got away with passing the the Constitution through each state's convention, and it just barely did. On top of that, it's right to say that if you want to fix democracy so that it remains with its power in the hands of the people, then you can't keep on adding more federal bureaucracy. It's the opposite of the goal of what is trying to be accomplished.

This is a battle that happens in government all the time, and is noticeable in recent events. We want to ensure that everyone has health care, but you can't just drop in a single-payer system when the system has been designed as a market for over half a century. We want to bring the troops home, but you can't just put all the soldiers on airplanes home and not have the Iraqi system they're supporting get significantly weaker and maybe crumble a little. Democracy and policy-making isn't meant to happen overnight, but beaten up and tested to see that it can stand up on its own. You can't just roll up the dough again and make whatever you want when you've already started cooking for over 200 years, which is what this idea of a third chamber proposes to do.

Play needs to happen in the boundaries of the rules. You can't be playing basketball and all of the sudden drop the rules of football in like they apply and think you're still playing hoops. The rules can be bent - gradual changes can be made. That's what amendments are for, not just ground-shaking redefinitions of suffrage or attempts to ban gay marriage. If you want to tweak the rules, let's see some Representatives and Senators with a little gall to do their jobs and find a way to make the U.S. work with the rules in play.

Congress already has the power to repeal laws - make legislators use them to trim the fat rather than creating a new legislative body to do it for them. Or have them create an amendment limiting how long bills can be in effect, creating term limits for laws they pass. Good laws, like legislators, will be renewed; bad or outdated ones get the boot. Want to make the federal government more accountable? Give some power pack to the states to limit the federal government, such as repealing the 17th Amendment and making Senators electable by state legislatures.

At one time, a younger me would have argued vehemently against anything limiting the approach to a more direct democracy. But as I've learned more about our Constitution, the Founders' intent via The Federalist Papers and other primary documents on their thoughts, and that democracy is not the perfect solution for all of the world, I can see what I missed when I was younger.

People have a right to be stupid and ignorant, just as much as one has a right to call them stupid and ignorant for being so. I don't recommend being uninformed, but it's their prerogative. The Founders made the system outlined in the Constitution to limit that, to protect everyone from enough stupid people to do dangerous things with power. It is a living document, for sure - but it is how we, the People, use it that makes it come alive. It works, just a lot more slowly then we would like it to in this digital age of instant communication and 24-hour news. If we want to fix things that we think are wrong, then patiently, methodically, let's get things done. Every mistake that has been done can be undone, with time. We don't need an unlikely Constitutional Convention or radical proposals to change things. There is no instant fix. All we need to have is what has been granted to us - time - and the all-American value of stubborn persistence.

(Hat Tip: The Atlantic Ideas blog)