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President Obama's very fine inaugural address notwithstanding, I believe our Constitution is flawed, and perhaps fatally flawed. Please don't get me wrong; I very much admire that noble document. I have a copy (courtesy of ACLU) on my desk that I refer to quite frequently.

The founders could hardly be faulted for failing to take into account the problem: our Constitution is impossible to amend when partisan advantage is at stake. Gerrymandering is the most egregious example. The political party in any particular state has, in effect, the power to elect themselves, as long as they hold both state houses (even if only for a few hours). The judiciary could put an end to gerrymandering if it took a proactive stance, but so far it has not seen fit to do so. We could end the gerrymander madness by amending the Constitution. Guess what the chances of that happening are? Even if Congress approved a constitutional amendment (slim), what are the chances that 38 states would agree? (None)

This story, still unfolding, demonstrates that Republicans will stop at nothing. Every single Republican state senator of Virginia voted for it; not even one senator had a twinge of conscience. We wait to see if Governor Bob (ultrasound) McDonnell signs the bill, or if the courts give Virginia their judicial blessing to disenfranchise its citizens. The latest from the great state of Virginia is that at least one Republican is likely to balk at the scheme to gerrymander the state's electoral college delegation, and Governor McDonnell has said he would veto it. Praise be!  

The electoral college system itself is a second problem. In the 2012 election, the presidential votes of the 220 million Americans who don't happen to reside in a swing state were effectively nullified. This is profoundly wrong because it contradicts the "one person, one vote" principle, yet our system for amending the Constitution makes it all but impossible to change. Similarly, everybody with any sense of fairness knows that the gerrymander is an unmitigated political evil, yet it is also impossible to correct.

Put these two defects together, and you have a recipe for the minority to effectively hijack the entire government. The wheels are already in motion in several swing states to do just that. The Republican party is—this very day—plotting to take over the United States government through legislative trickery. According to the Constitution, it's perfectly legal unless the courts strike it down. What can we do about this outrage? Please have a look below the fold. (Sorry, Wayne LaPierre, it doesn't involve assault rifles.)

Our founding fathers have clearly declared that we have the authority to do what is necessary. We need only to assert that authority:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
[Emphasis added]
The preamble could also be cited:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
[Emphasis added]
Note that "the people" are, in both of these founding documents, the source for the legitimacy of the two documents. But how should we proceed? I propose that we adopt a Meta Constitution, that is, a document ranking above the Constitution that confers upon the people the ability to give their consent to be governed.
A Meta Constitution for the USA

Article I - This Meta Constitution shall take effect only after being approved by a 60% majority of the electorate in a special election to be held during the year 2XXX as Congress shall direct. As soon as the result is known, Congress shall declare that result by joint resolution. The Supreme Court shall have original jurisdiction regarding any disputes that may arise in the special election.

Article II - By virtue of its ratification by the people themselves, this Meta Constitution shall be superior to the Constitution of the United States and all its amendments. By definition, this Meta Constitution represents the will of the people. It may not be altered, amended, or repealed except by a majority vote of the people.  

Article III - The nation shall be divided into nine contiguous regions of roughly equal population along state boundaries. In each of these regions, the tenured faculty of all law schools accredited by the American Bar Association that hold advanced law degrees shall choose, in a democratic manner of their own design,  a "Founder" who shall have been for the past five years a resident of that region, and who shall serve for life.

There is no particular reason to choose nine, except that it matches the number of Supreme Court Justices. This article is meant to assure the average citizen that there is no regional bias in the selection of Founders. In the actual bill, the regions would probably be defined explicitly by listing the states that comprise each region. In truth, the political and social views of the Founders are more or less irrelevant, given the restrictions put on them by Article V
Article IV - The nine Founders decide what amendments to the Constitution, if any, to propose to the people. These decisions are jointly agreed by majority vote.

Article V - The Founders must confine their proposals to matters of governance, rather than matters of policy. That is, their attention must be focused on perfecting the machinery of government rather than on the details of what government accomplishes. Founders must retain intact the following amendments: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 19, 23, 24, and 26.

The Founders are in charge of the machinery that controls the rudder, but they have no say in which direction the ship of state sails. The Meta Constitution idea would be dead in the water (to extend the maritime metaphor) if the Founders could consider amendments that deal with policy. I firmly believe that policy is best left to elected officials. You might be disappointed that the second amendment would not be repealed, and so would I. But if the Founders were allowed to set policy, then Congress would be reduced to bureaucrats writing regulations at their behest. This is a bedrock principle for the Meta Constitution: it never controls policy.
Article VI - Founders may propose as many as three amendments, which must be published by June 1 in even numbered years. The amendments proposed shall be put on the ballot for the general election held in November of the same year. If a 60% majority of the electorate approves an amendment, it shall take full effect as specified in the amendment itself.
Why only three amendments? Because it avoids cluttering the ballot with too many decisions for the voter. Should this be reduced to two or one?
Article VII - The Founders shall receive compensation equal to that of US Supreme Court Associate Justices, with expense allowances for their necessary travel. No office or staff expenses are authorized. The Founders are subject to impeachment in the House of Representatives in the same manner as is the President, but Founders are not otherwise subject to congressional subpoena.
"Travel" means airfare, ground transportation, hotel and restaurant expenses while away at Founder meetings, but nothing else. Their actual labor, while extremely important, amounts to a few weeks out of the year, so office and staff expenses are unnecessary. At $214K per year, they would be quite comfortable, especially since they might well supplement their income in ways that pose no conflicts of interest.

The above is proposed only as an example; you could change any of the details except Article V. You might object to paying nine elite lawyers a handsome lifetime salary merely for coming up with a decent idea or two every couple years. But the total bill would come to less than $3 million annually—a pittance to insure that the people have a genuine voice in government.

How could such a Meta Constitution be put into place? In theory, I think it's actually fairly straightforward. Congress enacts the above Meta Constitution as a bill, and the President signs it. The provision for a 60% majority vote of the electorate overrides any legal objection; the legitimacy of the Meta Constitution is established by the very documents that launched our republic. (see above)

Why the 60% majority requirement? The Meta Constitution would be a major step in changing the governance of our nation. If the requirement were merely a majority, the moral argument could be made that a bare majority is not unambiguously representative of the people. I believe that most people would accept that 60% represents the clear will of the American people; in presidential politics, it would be called a landslide.  

There is one minor problem to be solved: we must persuade Congress—and particularly the gerrymandered House—to pass the bill. This means  we must persuade a majority of Congress to do the right thing, admittedly not a trivial task. Maybe the best approach is to establish a bipartisan caucus or even a non-partisan commission to pursue the idea. I don't know; I am not a politician.

The necessity for a ratification vote for each amendment would have some interesting consequences. The Founders would presumably want to have their amendments approved, because approval would mean personal satisfaction, prestige, and a place in history. It would seem likely that they would not propose radical or controversial changes, but even if they did, the people could always reject them. Founders would themselves possess no actual political power; rather, they would enable the people to exert that power.

I would hope that gerrymander and electoral college reforms would be at the top of their list. I personally think that there are several other worthy reform topics, but I also think it would be unwise to attempt too much, too fast.

I think this is doable, at least in theory. The Meta Constitution would, for the first time, give the American people a direct voice in how they are governed. Among the benefits is the fact that politicians would be forced to pay closer attention to the will of the people, rather than looking for tricks to thwart it.

There will be those in the comments that say that this will never happen. Maybe they will be right. But I will point to the people who originated the National Popular Vote idea. They knew that a Constitutional amendment to abolish the electoral college was all but impossible, and they found a creative way to circumvent that problem. Today, the NPV has a realistic chance of becoming reality. I don't pretend that the Meta Constitution idea will take the nation by storm; I advance it in an effort to eventually improve governance in this country. How else can we the People make a real difference?

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Comment Preferences

  •  Tip Jar (22+ / 0-)

    Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

    by Tim DeLaney on Sun Jan 27, 2013 at 08:01:50 AM PST

  •  I always enjoy... (9+ / 0-)

    ...your thoughtful posts, Tim. Thanks!

    There are, in every age, new errors to be rectified, and new prejudices to be opposed. ~Samuel Johnson (1709-1784)

    by slksfca on Sun Jan 27, 2013 at 08:20:26 AM PST

  •  A previous diary (can't recall which) (6+ / 0-)

    pointed out that Republican gerrymandering has created "unassailable" Democratic districts while leaving theirs--while certainly safer, still within the realm of competition.  

    •  True enough (5+ / 0-)

      But the bottom line is more Republican representatives.

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Jan 27, 2013 at 08:31:35 AM PST

      [ Parent ]

      •  For a time. (5+ / 0-)

        And gerrymandering certainly slows things down.  Just pointing out a silver lining.  Eventually those districts will go purple.

        •  ...not too likely... (1+ / 0-)
          Recommended by:
          Tim DeLaney

          ...they get gerrymandered every 10 years...and whomever is in control politically at the time on the state level will decide just how that gerrymandering will occur.

          The gerrymandering currently in place across so much of the USA...esp. in states that vote "blue" in national elections but have GOP in control of the legislatures and governorships...have gerrymandered things SO never before...that those weirdly-shaped areas can only change if Democrats moved to those areas in droves.

          Democrats are primarily 1) urban dwellers; 2) people of color and therefore NOT likely to move out into suburbs, exurbs or the rural country in large enough numbers to change those areas blue...sorry...

          Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

          by paradise50 on Sun Jan 27, 2013 at 12:27:15 PM PST

          [ Parent ]

    •  Since each district must have equal population (0+ / 0-)

      Gerrymandering can only help so much against a changing demographic tide.

      Only so many suburbs to exploit, and only so much hard data on voting patterns to create unassailable districts (NTM about an equal or better share of women voters).

      Millions showed at the polls this year the GOP never expected as it is.

      All Republicans need to do is keep spewing the same old backwards and hateful BS (in "new" packaging of course) - to seal their electoral fates.

      If not us ... who? If not here ... where? If not now ... when?

      by RUNDOWN on Sun Jan 27, 2013 at 07:33:23 PM PST

      [ Parent ]

  •  Excellent, and just one thing (7+ / 0-)

    It's not that the Preamble could be cited, it should be cited.  What the Declaration says about this -- actually about anything having to do with the way the government runs is irrelevant because forming a government was not what the document did.

    This is a problem the Republicans have pretty much all the time, confusing the Declaration with a document of governance. I'd just delete that paragraph.

    -7.75, -8.10; . . . Seneca Falls, Selma and Stonewall (h/t cooper888)

    by Dave in Northridge on Sun Jan 27, 2013 at 08:31:56 AM PST

  •  Your thought-provoking diaries (5+ / 0-)

    never disappoint me, Tim! Thanks for this. However we proceed on protecting the one-man, one-vote ideal will be met by great force... not force of ideas but of propagandist fear-mongering. Nothing new there.

    That changes need to be made should not be at issue. Your ideas are as good as any I've read. I just hope we can manage to avoid the unintended consequences that always seem to be such a trap.

    Good to see you around. I've missed you lately.

    Inspiration is hard to come by. You have to take it where you find it. --- Bob Dylan.

    by figbash on Sun Jan 27, 2013 at 09:41:28 AM PST

    •  Your remark about unintended consequences (3+ / 0-)
      Recommended by:
      figbash, paradise50, side pocket

      really hits the mark. This is why I have tried to restrict the Founders authority, and also why I wanted the best legal minds in the country as Founders. Electing them by popular vote would be a mistake, IMO.

      As an example, I have the feeling that our Constitution should say something more than it does about Senate and House rules. The current gridlock vexes me no end, but my vexation could lead to rules that have those unintended consequences. If we were to contemplate messing with their rules via an amendment, I'd want the smartest minds in the business to write that amendment -- or perhaps to not write it.

      Gerrymander reform is another case where deep thought is needed. The very idea of congressional districts leads to a mild case of gerrymandering even if it is done impartially, because Democrats tend to congregate in cities.

      Take your city, Chicago, for example. Any way you draw district boundaries will result in some districts being heavily democratic -- maybe 75% or more. On the one hand, this guarantees at least some representation in Congress, but Democrats would be better off if some of those votes could be "exported" to Republican areas. But the real question is: Would the nation be better off?

      While we're thinking about the gerrymander issue, let's think about the reality that the United States itself is gerrymandered naturally. I'm not by any means suggesting that we could ever contemplate redrawing state boundaries, but a good theoretical case could be made for doing so.

      It may well be that natural gerrymandering is inevitable, and that attempting to minimize its consequences would be a grave mistake. But in any rational country, partisan gerrymandering is an evil we must try to abolish.

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Jan 27, 2013 at 10:21:01 AM PST

      [ Parent ]

      •  Indeed it .... (3+ / 0-)
        Recommended by:
        Tim DeLaney, paradise50, side pocket
        partisan gerrymandering is an evil we must try to abolish.
        ... and it is exactly what we must change now.

        Blow-back is another concept we need to reckon with. The rabid right is still fighting the culture wars of 50 years ago (at least). You'd think the older tea people would be sick and tired of it, but they apparently will go to their graves feeling wronged. The younger ones have been infected with the propaganda that fills our air-waves and taints civil discourse especially the ones in Congress like Cantor and Ryan and Hensarling.

        I think it's high time I go back and pull Lani Guinier's Tyranny of the Majority off my book shelves and see what lessons are most on-point in today's tyranny of the minority.

        Inspiration is hard to come by. You have to take it where you find it. --- Bob Dylan.

        by figbash on Sun Jan 27, 2013 at 10:41:17 AM PST

        [ Parent ]

  •  Thanks Tim. I, too, have a (5+ / 0-)

    copy of the Constitution compliments of the ACLU and it is always within reach, especially with wingers constantly misquoting it.

    This thoughtful post is much appreciated.

    The good thing about science is that it's true whether or not you believe in it.― Neil deGrasse Tyson

    by maggiejean on Sun Jan 27, 2013 at 09:44:59 AM PST

  •  Scott Walker is still in control of (4+ / 0-)
    Recommended by:
    Tim DeLaney, a2nite, NancyWH, paradise50

    Wisconsin because of Gerrymandering.

    End it now. Where do I sign up!!

    Keep our elections cleans. It's the only hope to keep our democracy from being stolen by the elites.

    I have decided to stick with love. Hate is too great a burden to bear. Martin Luther King, Jr.

    by cyeko on Sun Jan 27, 2013 at 10:23:08 AM PST

    •  Indeed, WI, MI, PA, and OH are (2+ / 0-)
      Recommended by:
      paradise50, ranton

      all poster states for some sort of Gerrymander reform. I don't know why the courts have not asserted themselves in this area.

      Just as Brown V Board of Education found that separate could not be equal, Why don't the courts rule that partisan redistricting cannot be fair?

      Note to Boehner and McConnell: "You don't need a weatherman to know which way the wind blows." --Bob Dylan-- (-7.25, -6.21)

      by Tim DeLaney on Sun Jan 27, 2013 at 10:30:31 AM PST

      [ Parent ]

      •  ...Tim...the REAL the USA... (2+ / 0-)
        Recommended by:
        Tim DeLaney, ranton in the hands of the Federal Judges.  The GOP knows this and therefore DO NOT allow Democratic presidents to fill those vacancies.  When the next Republican president gets into office, they quickly fill those vacancies.

        Just look at the Federal Judges that have been placed on the benches across the land from the time of Reagan until now.  REALLY...take a look at how many were filled by Reagan, Bush Senior and Bush Junior.  Then look how many were filled by Clinton and Obama.

        You will see why things are going the way they are going in our country.  Federal Judges are there for life.  They can only be impeached.

        Federal Judges are "power for a generation."  This is truly where the real power for the long, long haul resides in the USA.  This is why you see NO court assertion for doing anything about gerrymandering...

        Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

        by paradise50 on Sun Jan 27, 2013 at 12:32:14 PM PST

        [ Parent ]

  •  ...whoa!!!... (2+ / 0-)
    Recommended by:
    Tim DeLaney, smileycreek

    ...all I can say Tim is...good luck with that!...

    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

    by paradise50 on Sun Jan 27, 2013 at 11:11:40 AM PST

    •  ...this won't happen... (1+ / 0-)
      Recommended by:
      Tim DeLaney
      we must persuade a majority of Congress to do the right thing, admittedly not a trivial task.
      ...Congress, at least the House (and most of the Senate) has proved decisively since 2010 that it's members are self-centered sociopaths who will not do the right thing.  

      That's because there is no "right or wrong" in the sociopath's world.  The sociopath only has the capacity to feel how they personally are being affected.  That IS their entire reality.  Others...the consequences they cause for others...the feelings of others...don't matter to them one tiny bit because they don't exist.  All that exists is how they are affected personally.

      With that being so, what you wrote in the blockquote above cannot happen...sorry...

      Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

      by paradise50 on Sun Jan 27, 2013 at 11:17:00 AM PST

      [ Parent ]

  •  ...this scheme to change how we have... (1+ / 0-)
    Recommended by:
    Tim DeLaney

    ...voted for 236 years in the USA by Wisconsin, Michigan, Ohio, Pennsylvania, Virginia and Florida (so far) to make sure the minority wins is NOT DEMOCRACY.

    I do believe there can be a serious challenge to this crap, if it goes through.  The Supreme Court would likely be asked to weigh in.  I don't believe the Supreme Court would uphold the total destruction of Democracy in the USA which is ----> majority rules.

    The ONLY reason the Electoral College was created in the first place was to get the southern most colonies to join in the creation of the country.  It was a scheme to give rural areas a way to have more influence over federal elections than simple majority of the entire country would have allowed.

    So, after 236 years, several GOP controlled states want to change that whole electoral college thing now to break-up states themselves into districts = square miles of land has more to do with federal elections than does the state's population.

    There are several Constitutional challenges that could be made against this outcome, because the simple truth is...this scheme is truly about white people doing anything to have total control.  That is the simple truth...

    Ignorance is bliss only for the ignorant. The rest of us must suffer the consequences.

    by paradise50 on Sun Jan 27, 2013 at 12:39:52 PM PST

  •  The gop consists of one basic group, which is (2+ / 0-)
    Recommended by:
    ranton, Tim DeLaney

    being manipulated and exploited by the Koch's et al (Big Oil and Coal), Wall Street, and the MIC, the membership of each group overlapping the other, to some degree.

    This basic group is the religious right and it's less zealous allies. What they are actually trying to do is create a "fortress" against reality, knowledge, facts, etc. At the same time they're en-cysting their universe in a shell of denialism, ignorance and hooey, they're still trying to maintain control over the entire country, all institutions, even the thought processes of all Americans.

    These two projects are not necessarily compatible, as we've seen from recent elections.

    The fact is that their projects are not really even in their own best interests. They only serve to preserve the delusion and dysfunction under which they are operating.
    For instance, their denialism about climate is preserving the status quo, rather than allowing us to go forward with investment in clean energy and mitigation of global warming, which would create millions of new, unexportable middle class and working class jobs.

    The way to win this war is for progressives to keep their eyes on the prize; to, one by one, peel these people away from the projects that are not actually in their own best interest. We have to continue to separate them from the interests that exploit them, divide them, assist their dysfunction and chaos.

    On specifics, I think we can do away with gerrymandering in the near future. That would be a game changer in itself.

    Protecting the vote, and get us to better than 80% voter participation would also make a radical difference.

    We have to reform the Senate, incl. filibuster reform.

    I think we're in good shape if we keep up a strong fight in the next few years.
    We have to understand the people who vote against progressivism and why, and we need to ultimately bring more of them to our side. This requires a long hard slog, perseverance, etc., but it will work out in the long run.
    I'm not looking for any "deus ex machina" or gimmick to get us out of this necessity for stubborn persistence.


    You can't make this stuff up.

    by David54 on Sun Jan 27, 2013 at 02:05:17 PM PST

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