I am currently reading a book called “The Creation of the American Republic, 1776-1787”, by Gordon S. Wood, and it has stimulated my thinking about Constitutional issues. My purpose here isn’t to provide the reader with a book review, but to discuss what I now believe is the proper amendment process for a state constitution.
What I am saying here is only applicable to a state constitution, or to the constitution of a non-American republic that doesn’t have a federal-state system of government like the United States. The reason it isn’t necessarily applicable to the U.S. Constitution is because that document represents a sort of balance between the need for a national government on certain issues and the sovereignty of states. (I am not saying that I am necessarily opposed to one consolidated national government, without state governments, for the country currently called the United States. Whether our current Federal system is ideal is an issue for another day. It is certainly better than any other government now in existence.)
Before I discuss this proposed constitutional amendment process, I want to discuss the concept of a constitution. First, it must be kept in mind that the institution of government is man-made. This seems obvious, so why state it? I believe it is easy to adopt a subconscious mind-set that sees government as a natural feature of the world, that has an existence apart from the society that has created it. For instance, the British system of government is a product of hundreds of years of tradition, which doesn’t have a written constitution. I think it would be easy for people to forget that this institution is a creation of men, and can be changed or destroyed by men. Just as “society” is nothing more than a number of individual human beings, government is nothing more than an institution created and sustained by a number of individual men. Since government doesn’t exist apart from the men who create and maintain it, then why does it exist at all? All man-made creations should serve some purpose, and, ultimately, further human life. For instance, the automobile is a man-made thing that serves the purpose of transportation, which ultimately makes human lives more easy and convenient. Government is also a man-made thing, and should therefore serve certain functions.
What is the purpose of government? What function does it serve? Ultimately, government serves man’s life. More immediately, human beings must take certain actions in order to live. At the most basic level, they must produce food to eat, shelter to protect them from the elements, and all of the tools that allow them to acquire these things. Other human beings have the capacity to prevent men from taking the actions necessary to live by means of physical force. For instance, a robber uses a weapon to take what others have created to further their own lives. Therefore, in order to live, men must be free from other’s use of physical force in a manner that deprives them of the values they have created for their continued survival. It must be recognized that men are entitled to take actions necessary for maintaining their lives in a social context. People who use physical force to deprive others of the material values they have created are called criminals. Criminals must be restrained by means of physical force. For instance, a robber is put in a jail to prevent him from committing more crimes. (The length of time that a criminal should spend in jail depends on a calculation that takes into account, at a bare minimum, the level of threat that he represents to the lives of other people versus the possibility of him changing his ways -all human beings with normal functioning brains have the capacity to change.)
Each of us could individually take action to restrain criminals, but this would be inconvenient, since most of us do not want to spend our time apprehending thieves, rapists, and murderers. Government is a delegation by the population of the means of restraining criminals. (I also believe that there are other reasons why the restraint of criminals must be delegated to a central authority, and that anarchy is not compatible with a free society. In general terms, anarchy is not compatible with ensuring that a crime has been committed, and with establishing to other’s satisfaction that your use of physical force, and the amount of force used by you, to stop a criminal is justified. I believe this is what is meant by “due process”.) To sum up, an essential function of government is to ensure that the people who want to take action to further their own lives are free to do so.
Another feature of government that must be kept in mind to understand the concept of a constitution is this: government is a product of human association and collaboration. Since government involves a group of people, and since people must bring it into existence, there must be communication, collaboration, and agreement amongst those people about how the functions that government serves will be carried out. An implicit assumption contained in the need for collaboration and agreement amongst the people about the details of how government will operate is the fact that there is often more than one way to perform many government functions. Each state of the United States carries out the legitimate functions of government slightly differently. None of these arrangements are necessarily “right or wrong” in a universal sense. For instance, in the State of Texas, the final state court of appeal is divided into two separate courts. One court handles criminal appeals, and the other handles civil appeals. In other states, and in the Federal system of the United States, the final court of appeal is a single court that handles both criminal and civil appeals. Other issues that could come up include: Should the legislature be unicameral or bicameral? Should all criminal prosecutions be by means of indictment of a grand jury only, or should misdemeanor prosecutions be allowed to proceed by “information” (a charge leveled at the discretion of the District Attorney)? Which is better? (I do not know, and reasonable minds could easily disagree on such details.) Many of these details regarding how a particular government will operate will depend on the particular circumstances and context of any particular society, and the needs of a particular society may change over time. Since so many details depend on context, the people in a society must discuss what their particular needs are, and come to an agreement. Compromises may also need to be made regarding certain features of a particular government. A constitution is the most fundamental agreement amongst the people of a society about how governmental functions will be carried out in a particular society.
So, how should this fundamental agreement amongst the people about how governmental functions will be carried out be reached? Since American states already have constitutions, I will start with the assumption that there is a pre-existing institution that performs governmental functions, and propose a process for amending state constitutions that I think would better reflect the need for broad-based societal agreement over how governmental functions should be carried out in practice.
Every two or three election cycles, a question is placed on the ballot used for electing representatives to the legislature. The question would be something like: “A constitutional convention shall be called.” The voters will either check “yes” or “no”. If three quarters of all registered voters check “yes”, then a constitutional convention (a “Convention”) shall be called within a certain period of time (within about 6 months). The reason three quarters of all registered voters must vote in favor of a Convention is because a constitution is the fundamental political agreement amongst the people, so before it can be changed, there must be broad support amongst the people in favor of change. This ensures broad-based societal agreement about the basic structure of government. It is also not enough to call a Convention based on a mere three quarters of the people who happen to vote in that particular election because, in some elections, voter turnout can be low, and it would be too easy for particular interest groups to get their own supporters out to vote in favor of calling a Convention even though the majority of the population is not in favor of a change.
If three quarters of the registered voters are in favor of a convention, then there is a special election to elect Convention Delegates. Delegates for the Convention should be chosen in a manner that ensures that they are representative of the people. Probably, they should be chosen in accordance with existing voting districts for the lower house. (The “lower house” is the legislative chamber that is usually seen as being the most “representative” of the people, and usually bases representation of each district on population levels. In the Federal system of the United States, it is the House of Representatives.) Existing voting districts for the lower house are used for purposes of efficiency, since these districts would be readily known to everyone. (However, I also think that it would also be appropriate, and possibly advantageous, to create special voting districts for the sole purpose of electing Delegates to the Convention.) What is important to keep in mind is that each voting district for the Convention gets a number of Delegates in proportion to the population of registered voters in that area. So under my plan, each voting district for Convention Delegates gets the same number of Delegates as they received in the most recent legislative session for the lower house. This is done because the lower house usually bases the number of representatives each district gets on population, which means that the areas with greater populations will get to send more Delegates to the Convention. Linking the number of Delegates at the Convention to population is based on the fact that a constitution is a fundamental political agreement amongst the people, which means it must reflect the will of the population. The membership criteria for Delegates to the Convention under my plan would be the same as the criteria for membership in the lower house of the legislature. This is because the lower house of the legislature usually has the lowest criteria in terms of age, residency, and (in the past) property ownership.
Individual Delegates to the Convention are chosen for each voting district by means of election. The exact election process could be done in different ways, but I would prefer a non-partisan election, in which the highest vote-getters get to be Delegates, without any sort of primary. For instance, if a particular district gets three Delegates, then the top three vote-getters get to be delegates.
At the Convention, constitutional amendments are proposed by individual Delegates, and then voted on by all of them. If a proposed constitutional amendment gets 51% of the votes of the Delegates at the Convention, then it will be sent to the people for a ratification vote. I am uncertain at this point of the details of how a Constitutional Convention would be run, other than the requirement that a proposed amendment get 51% of the Delegates’ votes, but I think it could be left up to the Delegates to set their own rules of procedure for how amendments would be proposed to the Convention, and debated on. One other necessary rule regarding the Convention: it must last for only a set period of time. This is to ensure that it doesn’t become a permanent body. Any amendments proposed by it after this set time period are considered null and have no legal validity.
As I already noted, all proposed amendments of the Convention will be sent to the people for a ratification vote. If three quarters of the registered voters vote to ratify an amendment, then it becomes a part of the constitution. Just as when the Convention was called, requiring three quarters of registered voters to ratify an amendment ensures that it does represent an agreement of the people.
I would now like to compare this proposed Constitutional Amendment process with the current amendment process of the State of Texas, in which the state legislature plays a role. This will illustrate what I think is wrong with an existing legislature having a role in the amendment process of a constitution. It would appear that the Texas State Constitution (as of 2009) allows for the lower house of the Texas legislature to propose constitutional amendments on a 2/3 majority vote. It also appears from the text of the state constitution that a mere majority of the actual votes cast by the population will ratify the proposed amendment and make it part of the Texas State Constitution. This process has two major flaws. First, allowing the Texas State legislature to act as a Constitutional Convention is problematic. Since a legislature is a part, or aspect, of government, it has no greater right to exist than the government itself does. Since government is a delegation by the people of the right to the use of physical force to restrain criminals, it seems fundamentally contradictory for the members of the legislature, who have been delegated that power, to play a role in the process of the delegation of that very power. In order for a legislature to be an actual representative body, as opposed to a sort of aristocratic body, there must be some more fundamental, and prior, agreement amongst the people represented about the basic terms under which the legislature is to exist, such as: how and when the legislators are elected, for how long they meet, how long they are to serve, on what matters they may legislate, etc. Logically, these issues must be decided by the people prior to the establishment of a legislature. It is possible to combine a legislature and a constitutional convention in one body of people, but this would be a bad idea. The legislators would tend to create a constitution that favored the legislature as an institution, whereas a body of people whose sole purpose is to create the constitution would have to live under that constitution, so they would create a document that is more representative of the people’s will.
Convening a special body just for the purpose of creating or amending a constitution will also ensure that the best and the brightest Delegates will be elected to the Convention. Once a Constitution is established, any particular legislative body can have less intelligent and competent people in it because the Constitution will have institutional safeguards in place against legislative tyranny, such as the courts to strike down unconstitutional laws. Also, while the best and the brightest might be willing to serve, for a short period, in the creation of a Constitution, they may not desire a career in politics, so the legislature may normally be composed of people of lesser abilities. It is okay for any particular legislature to be filled with incompetents, because its powers are already defined by a constitution, so the damage they can do is not as great. A constitutional convention filled with incompetents would be a disaster, because they are setting the broad terms by which all future legislatures, executives, and judges are to govern. In essence, a special Convention that meets for that sole purpose, and then is dissolved provides an extra institutional safeguard against any sort of legislative tyranny, and insures that the most competent people are involved in the constitutional drafting/amending process.
The second major flaw I see with the current amendment process for the Texas state constitution is that it appears to only require a simple majority of the people that actually vote regarding the proposed amendment to ratify it. This means that a very small segment of the population can ratify constitutional amendments, and would tend to encourage small interest groups to write constitutional law. There is no assurance that the particular constitutional amendment that is ratified represents the agreement and consent of “the people”, just special interest groups.
A perusal of the Texas State Constitution reveals that much of it reads more like a set of statutes than a constitution. The important, fundamental, portions of it, are drowning in a sea of trivial provisions. By separating out the constitutional amendment process from the legislative process, and by requiring a super-majority of the voters to ratify, I believe a better constitution can be maintained, and that it will truly represent a fundamental agreement of the people, rather than a legalistic collage of special interest groups.