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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

Last 5 posts by Patrick Non-White


  1. says

    Fascinating. And the checks and balances are built in, as the Congress can simply approve the law again for another five or seven or ten years. In a way, it's sort of like at-the-discretion-of-the-House-of-Repeal term limits for federal laws.

    Complications: What is a "law"? These days one of the most pernicious elements of federal lawmaking is the tendency to package unrelated issues into one bill, usually to pork it up, or to thwart it, or to gain supporters. Does the power of the House of Repeal act like a line-item-veto, where it can excise portions of a bill? That's appealing when it is excising, say, a law banning assault weapons that is buried in a bill that's mostly about the national budget. It's not appealing to the extent that the House of Repeals can alter the effect of a law — or even of a statutory scheme — by excising a single subsection or clause or sentence. Of course, again, the check and balance would be Congress passing that clause or sentence again.

    I'll have to think about it more.

  2. says

    I think the five-or-ten-year delay is problematic too, because some bodies of law—tax and regulatory stuff—change every year.

    Maybe don't have them actually repeal the laws, but instead negate the effects of the laws. E.g. they have the power to reduce or remove criminal and civil sanctions. So they could "veto" parts of a law, but the changes would all have to be in one direction.

    If we're going to swing for the fences, how about selecting the members of the House of Repeals by lottery from among all voters? They'd be a statistically valid representation of America, and it would be harder to game the system through lobbying or election tricks.

  3. Patrick says

    I'm pretty sure Heinlein advocated election by lottery in one of his books, Windypundit. I'd certainly support it, for this purpose.

    Hell, I'm pretty sure 535 random nobodies couldn't be worse than what already occupies the present Congress. William F. Buckley's comment about the Boston phone directory comes to mind.

  4. says

    As long as we're taking suggestions from genre fiction, I rather like L. Sprague DeCamp's idea from The Unbeheaded King. Chop off a Senator's head every six years, throw it to the crowd, and give the senate seat to whoever catches it.

  5. rmtodd says

    Have you ever read Diane Duane's novel Spock's World? In there we learn that the planetary legislature of Vulcan has a third house entirely devoted to repealing laws, just like you suggest. I've always thought that suggestion eminently logical.

  6. says

    Believe it or not (okay, probably not as hard to believe as I fantasize), I am not all that good at ferreting out dirty tricks and system manipulations, but I've always daydreamed about a "conservation of laws" law.. something along the lines of, for each line of text that becomes law, at least one line of old law has to be repealed, at every level of governance up to and including corporate policy. Economics has made everything else on this planet a scarce commodity, why not legal code?

    Of course, this would result in good laws being replaced with bad laws, exemptions being shredded, etc, etc… but I can't stress how incredibly unfair it is to be subject to more pages of laws than I could read in my lifetime.

    My other atrocious idea for legal reform was: if the law is too long to Tweet, it is thrown out.

  7. says

    Ok! This is a nit that has nothing to do with your main topic, but the death penalty for "child rapists" is a TERRIBLE IDEA. I probably dislike child rapists as much as the next guy, but if this were the law, someone might as well kill a child after raping him or her.

  8. says

    How about we just start with repeal of the 17th Amendment? At least then we'd have a Senate accountable to the state legislatures, who may not be so happy about giving the Feds more and more power.

  9. David Schwartz says

    Reuven: I don't think child rapists respond very well to incentives. They don't reason out their actions the way you imagine they do.

    Think about it. No matter how much a rational person might be attracted to a child, they're just not going to commit the kind of violent rape of a child that would expose them to the death penalty.

    And, to the extent they do respond to rational incentives, how do you know which effect will win in the balance? Many rapes might be avoided simply because the perpetrator is not willing to commit murder or risk their own execution.

  10. Patrick says

    Transplanted, as you say, Censor is a tricky term today. Not to mention that the Censor had duties ranging beyond wiping bad laws off the books, such as stripping the unworthy of their citizenship, and purging the Senate of …

    Well, we don't have a politician of Cato's wisdom anyway.

  11. says

    Is there any particular reason you think the senate has had better composition, on average, in the past than it does now? Sure, we can name remarkable senators from the last 200 years, but there have been a lot of senators that were unremarkable to bad and have faded into history.

  12. says

    I should probably have added a paragraph instead of another comment….

    I think it's a solid idea. You would have to work out the mechanics – how finely grained of a removal can be made, what happens to later modifications of a law if you repeal a law that modifies a law,etc. If there were a state version of this, I'd think about running for it.

  13. Patrick says

    There were always bad senators Chris, but today they're perhaps not as ashamed of their mediocrity as they once were, nor are they controlled by their betters. Look at a Lisa Murkowski, or a Maria Cantwell (I'm picking on women here, but both are genuinely unworthy) and tell me that standards haven't fallen.

    Look at a John Ensign, or a Christopher Dodd, and tell me that standards haven't fallen.

  14. says

    I really like this idea, but it's not as bulletproof from SCOTUS as you think it is:

    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)

    That parentheses gives the game away. If the Supreme Court can interpret the "commerce clause" as giving the DEA the power to seize medical marijuana, it can interpret any decision it doesn't like by the New Camerate as exceeding its Constitutional powers.

    Justice Scalia will just have to suck it.

    Sadly, Justice Scalia will not have to suck anything he doesn't usually suck.

  15. ME says

    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.

    Restore the full filibuster for starters. Give Congress some teeth on restricting judicial review. That's a better start than an inconsistent, new body of government officials and an addition to an already bloated bureaucracy.

  16. Patrick says

    And I should point out, from my perspective, that this notion derives its power from a number of state laws. Consider New York's Rockefeller drug laws, which any thinking person agrees have proven to be failures in which a few poor drug users, seemingly selected at random as in Shirley Jackson's The Lottery, are all but strung up as sacrifices to the gods, but no one in New York's legislature will do anything meaningful about them, because they don't want to be known as soft on drugs. Or consider Birmingham Alabama's ridiculous "blacks and whites may not play checkers together" law, which was still on the books in the 1980s, though it wasn't enforced.

    Or in my own state, consider that we still have sodomy and cohabitation laws, which are rarely enforced (in some cases can't be enforced), are enforced arbitrarily when they are enforced, and which most of the voters don't support if you ask them. Yet no one will move to amend or abolish them, because no one wants to be known as the "pro-sodomy" or "pro-living-in-sin" candidate, even though millions of us do it, even if it's for something as harmless as a prelude to marriage.

    Obviously the idea needs work, but what would be wrong with having a review of the laws, especially at the federal level, where almost no one knows what they are? We're so encumbered by law that even lawyers, in malpractice cases, can defend themselves with the excuse that the law is too confusing.

  17. Patrick says

    Restore the full filibuster for starters. Give Congress some teeth on restricting judicial review. That’s a better start than an inconsistent, new body of government officials and an addition to an already bloated bureaucracy.

    The problem is that Congress has those powers. The Senate could restore the original filibuster. Congress could restrict judicial review (it did in the Anti-Terrorism and Effective Death Penalty Act – a misbgegotten cosmetic reform that increases the chance of innocents being executed).

    But as to repeal, Congress almost never exercises its power. Think of the law as a body. If the body develops a tumor, the Congressional solution is to ignore it, or to graft skin over it, when what's needed is surgery, excision and removal.

  18. Tanarur says

    It's never going to happen. If there ever were another Constitutional Convention, the likelyhood of something emerging from it being an improvement on the current document is unthinkable. Given the general lack of education and intelligence in the public at large, and the dominance of the sort of moral and intellectual gnats in "public life" that the author rightly points to, I think the likelyhood of something far worse and more than likely unworkable coming out of the process to be not worth the risk.

  19. Jason Uphoff says

    I am sympathetic to the concern about the poor quality of our representatives, and to the smothering effect that expanded government in general has on our freedoms, yet I am not convinced we need to add yet another group of representatives who will inevitably become corrupted and bloated as badly as the current crop. I think the Founding Fathers intent was for government to be deliberate, that is careful, slow, and with great thought, when they went about making laws. This obviously is not the case with our representative, the sheer amount of law that is proposed precludes any deliberation, so let's make simple changes like requiring every representative to sign a statement swearing that they have fully read every piece of legislation before they vote on it. This would have the effect of slowing down the process and also slimming down the ridiculous language and whereas clauses that enlarge and complicate law. As to the executive branch with all of it's oppressive regulations, we need sunset provisions that require revisiting all regulations every 2-5 years, which should also have the effect of slimming those down as well.

  20. Jcrodden says

    One of the comments mentioned Robert Heinlein. He mentions a third house devoted to repealing laws – an Anti-legislator house – in one of his novels (The Moon is a Harsh Mistress) and again in his Citizen political strategy book – "Take Back your Government". His idea was also intriguing because he thought that a law could be repealed by as little as a one-third minority in this new house. The idea was that if as many as a third of the US citizenry (quite a lot of people – more population than some nations) considered a law to be bad, shouldn't that give us a reason to abolish it. It would also give pause to legislators before passing laws that they knew would have to be pushed down the throats of their constituents.

  21. says

    Patrick, I'd be inclined to tie this into "Adulthood" as we've discussed it here before. So you would have to enter into that status willingly to be eligible to serve.

  22. brian says

    Bravo. I recall reading in some book on the founders that Jefferson had a similar idea – set all laws to expire some number of years (17?) after enactment. Madison or Monroe talked him out of it, apparently. Congress would of course only bother to re-enact laws important to them at the time. No extra governmental body needed. Not gonna happen, of course…

  23. says

    I love this idea, but I'm also with the above commenter who advocates repeal of the 17th amendment so that state legislatures appoint senators.

    Here's what I have thought about over the past three decades of watching America's increasingly bizarre political Kabuki rituals:

    1] Voter Qualification, Home Ownership (Condo or Townhouse fine) – outright ownership, no mortgage. Every citizen should be able to reasonably aspire to vote, but allowing any 18 year old to vote is democracy, and democracy is rule by fool because the masses are asses. Home ownership isn't based on IQ or education, just success.

    2] Disqualify anyone with a law degree from serving as a judge or legislator, because it's a conflict of interest for lawyers to judge the law, or make the law. The system we have now is a racket: Lawyers make the law, judge the law, prosecute the law, defend us from the law, and oversee it all through the Bar Association. Limit lawyers to the adversarial part of the process where they belong. They have absolutely no business anywhere else.

    3] Re-empower Juries: Long ago juries could decide whatever they wanted, and not just what an interest-conflicted lawyer-judge instructed them that they could decide. Including, by the way, that the law in question was unjust and should be stricken from the books. We need to get back to this to break the monopoly lawyers have on the American legal system.

    4] A limit of two terms for every elective office. This would be like the military's "up or out" promotion policy for officers. A potential two terms in each state legislature, followed by two terms in each national legislature, followed by two terms as VP and then two terms as president ought to be a long enough political career for anyone, and only the very best could do it. Much of our political mediocracy is due to the power incumbents have to remain in office.

    Oh, and I really like that the Vulcans have this third deliberative body. LOL!

  24. says


    1. Of the many things I could say about the home ownership requirement, I will say only this: Paris Hilton probably personally owns dozens of houses.

    2. I'm not sure how judges can be competent if they are not lawyers — unless you are suggesting that judges would go to law school but never be practicing lawyers. It's true that much of what I do is not rocket science. But it does require facility with the law. The day your government comes to take your guns away, and you want to make an argument based on the Second Amendment, do you want someone who has never heard of incorporation to review your case?

    3. Juries have, de facto, the power to nullify. Right now. And they do. Any prosecutor, and any defense attorney, will tell you that. It's not always pretty, either, as any study of the civil rights era will tell you.

    4. I'm not convinced term limits are all good, but they are certainly worth discussing.

  25. Patrick says

    A lot of people own homes they can barely afford today, or can't afford. A lot of smart people (cf the author of Crime & Federalism) decided to stay out of bubble real estate markets, and are the happier for it.

    The postcolonial emphasis on landed franchise had its roots in English feudalism and later the gentry. It derives from a time when land was virtually the only valuable property one could own, apart from ships and slaves. Whereas today, the most valuable properties one can own are intangible: patents and copyrights.

    I'd stick with a universal franchise, though I wouldn't mind seeing it revocable for things other than felonies.

  26. Tom Cuddihy says

    I like this idea.

    I think another key idea is limiting the current preferred approach of the statists, meaning the judiciary. I can think of a good Judicial Restraint amendment that works within our current system:

    "This constitution is the supreme and constant law of the land binding these united states and limiting its federal government. Federal judges shall interpret this constitution and federal law consistent with its original meaning and limits. The states shall have the authority to enforce this by power to void judicial decisions and remove federal judges who interpret this Constitution in a manner inconsistent with original meaning and intent.
    1. Any federal judge that takes affirmative part in a majority judicial decision that is later voided by the states shall be subject to removal at the conclusion of the current congressional session.
    2. A judicial decision shall be considered to be voided when a simple majority of the state legislatures have passed a resolution with specific wording to appeal a judicial decision as identified by case name and the name of the court where the decision was promulgated."
    3. No federal judge shall serve a term from the ratification of this amendment of more than 17 years. No former or sitting federal judge shall be eligible for election to the senate or presidency of the united states.

  27. NighttSapper says


    Couple that with a law banning these massive omnibus bills, and you fix the system.

  28. Jason Uphoff says

    I am all for sunset clauses but why not keep bad laws from being passed in the first place? We need to require that all members be present during a complete reading of all bills in order to cast their vote. They need to be in the chambers for the entire time the bill is read with breaks if necessary. This will ensure that they eliminate all the unnecessary crap in a bill, and just get to the point. This would either greatly reduce the number of bills passed or reduce the time available for members to take junkets and other unnecessary trips. If we accomplished either or both of those things, it would be a good thing for the taxpayer and then we might actually be getting our money's worth out of our reps.

  29. says

    The best thing to do would be simply repeal the Seventeenth Amendment. That would go a long way towards getting people interested in the goings on with their state and local governments, and insure more active participation in state elections. Mainly, it would once again give states their rightful place in forming national policies. "The People"(tm) already have the House.

  30. says

    NighttSapper has the right idea here (though we'd need a lot of debate to work out the details). Another governing body (as Jason points out) will eventually just become corrupt and/or stupid. But a simple amendment (preferably retroactive) to add a sunset clause to all laws would be less subject to the natural chaos that comes from a body of human beings with conflicting interests. I'm sure we'd see people gaming even this system, but at least with a simply written rule most everyone would understand *how* the system was being gamed.

    To reduce the overhead for renewing old laws, I'd propose that each subsequent renewal of a law adds five years to the sunset clause for it (law passed – 5 years; 1st renewal – 10 years, 2nd – 15 years, etc). For past laws, we stagger their sunset clauses by the year they were passed so we don't have to review them all at once. Constitutional amendments (and the original constitution itself) are exempt.

  31. Tom Cuddihy says

    There are tons of ideas out there, but they all boil down to — restore the intent of the framers. To me, that comes down to one thing: limiting the power of the federal government. Repeal 1913. That was the year of the income tax, the federal reserve, and the 17th amendment.
    Add in a sunset clause, a bill-length limit (I like the rule that in order to vote aye on a bill the member must be present in the chamber while the bill is read aloud in all parts), and term limit for congress and the judiciary and we're halfway ther.


  1. […] Read it. 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. Perhaps what America needs is an authority whose sole job is to get rid of outdated, ill-conceived, or just plain bad laws. […]