An Item To Be Considered At The Next Constitutional Convention
This is not an original idea. I believe it was proposed by one of the famous weirdo anarchists of the 70s or 80s, perhaps Robert Anton Wilson or Bob Black. But as Wilson is dead, and Black has seen better days, I'll take up the call.
The United States Congress consists of two legislative bodies, the House of Representatives and the Senate. What America needs is a third legislative chamber. Please allow me to explain:
It was the intent of the founders, as demonstrated through the Federalist papers and the writings of individual politicians, that the House would provide, in its republican way, a direct democratic voice for the people, where spending measures, taxes, and other "get it done now" legislation would originate.
The Senate, on the other hand, was intended to act as a brake on the House. Senators originally were chosen by state legislatures rather than through direct popular election. They were intended to be wise old men: former governors, experienced congressmen, old lions of the state legislatures. That Senators were to take the long view, to restrain the foolish passions of the House, was demonstrated by their longer terms of office (six years as opposed to two), their responsibility for such longer term measures as treaty ratification and consent to federal appointments such as judicial nominations, and senatorial traditions such as the filibuster.
If all else failed, if a truly unwise or corrupt law got through both chambers, there were the additional checks of a Presidential veto and, after Marbury, judicial review.
It's obvious that this system has broken down. Where once the Senate consisted of people like Clay, Webster, and Calhoun, and in living memory boasted members of the quality of Daniel Patrick Moynihan, people who actually took the long view, today's Senators are almost uniformly mediocrities: Ted Kennedy, Barbara Boxer, Joe Lieberman, John Ensign, Lisa Murkowski. We just passed through a presidency in which the veto pen was lost for six years. It looks to remain missing for another three. The infrequency with which the Supreme Court strikes down any federal law that doesn't relate to abortion is remarkable.
What's more remarkable is that, while the House, Senate, and Presidency pass bills that none of them has read, the real laws that govern Americans' lives aren't even made by elected officials any longer. Most federal law today is made by enforcement and regulatory agencies, whether it's the Internal Revenue Service, the Army Corps of Engineers, the Federal Communications Commission, Immigration and Customs Enforcement, or the Consumer Products Safety Commission. Anyone who doesn't believe these agencies make the law has never been to tax court, or tried to broadcast amateur radio.
And in the meantime, laws pile up. 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.
Perhaps what America needs is an authority whose sole job is to get rid of outdated, ill-conceived, or just plain bad laws. A few considerations:
- This authority would not have law-making power. Its only responsibility would be to repeal existing laws, whether enacted by Congress, by regulatory agencies, or by Presidential Executive Order. It would have no authority to interpret the Constitution, or to repeal any part of the Constitution. At the same time, repeals by this authority would not be subject to judicial review (except to the extent it exceeded its powers by interpreting or repealing the Constitution). If federal laws pertaining to marijuana use, or military regulations on gays in the military are repealed, Justice Scalia will just have to suck it.
- This authority would have to be responsive to the people. We already have appointed judges who serve for life to tell us that laws Americans actually like, such as the death penalty for child rapists, are unconstitutional. It would have to be elected, and representative of the American people.
- This authority's purpose would not be to save actual lawmakers from responsibility for their own foolish or unconstitutional enactments. If Congress passes a law that says old children's books must be burned, or declares a misbegotten war, or wastes trillions to save badly run banks, automakers, and unions from their own incompetence, or creates a new boondoggle like the Department of Homeland Security, that's their responsibility, and they'll have to answer to voters. Therefore, the new authority would have no power to repeal laws until the fifth, or perhaps tenth, anniversary of a law's enactment. This would also guard against corruption, as special interests affected by a bad law would have no immediate recourse to seek its repeal, other than through courts.
- This authority would have to be broadly based, yet not have too many members. I'd propose that it consist of multiple representatives, drawn on geographically contiguous districts much larger than congressional districts. Perhaps it would have thirty members, and whereas runt states of low population, such as Montana and Wyoming and Idaho, might be lumped together, California might be chopped into four districts: LA-LAland, NoCal, SoCal, and Inland Empire.
- Since it would take a constitutional amendment, or more likely convention, to create this body, which I'd call The Tribunate (in keeping with the Roman pretensions of the Founding Fathers) but others might wish to call the House of Abolition or the House of Repeal, I'd propose that any member elected to the body be made automatically, and constitutionally, ineligible for election to Congress, the Presidency, appointment to a federal court, or federal employment other than through this body. This would prevent Presidents, Senators, Congressmen, Agency heads, or powerful lawyers and judges from promising future favors in return for a member's decision not to repeal a law.
Finally, such a body might be good for the American Civitas. It would encourage the American voter, more than ever, to think about his options in voting rather than to press "straight-ticket," and to consider third, fourth, and fifth parties. Based on the past ten years, I'm sure many Americans would feel more comfortable in their votes knowing that even if they chose a Republicrat for Senate, they could choose a Democrican for Tribune, or the House of Repeal, or whatever its called.
If America is the land of second chances, perhaps it's time that many of our laws had a second chance at oblivion. It's a modest proposal, but it's mine.
Update: Welcome Corner readers! Many thanks to Iain Murray for the link. And per Grandy, see Ken's earlier post, proposing a tiered system in which Americans must elect between citizenship as "Grownups," with full rights, freedoms, and powers of government and contract, but also full responsibilities, or as "adult infants," free to flout contracts and the like, but treated as children under the law. Unfortunately, this also would likely require a constitutional convention.
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