Time to throw constitution overboard, start over from scratch

Polk is a retired government lawyer in Southern California. He
graduated from Yale Law School and is a member of the UCLA Alumni
Association.

By Sam Polk

Now that the election has been decided by judicial fiat instead
of counting all the votes, it has taught us three painful lessons:
the separation of powers and checks and balances of the founders
has broken down because the Supreme Court has clearly become
partisan; the archaic electoral college has lost its purpose and
must go; we need a single, uniform national election system.

Constitutional amendments and legislation to accomplish those
last two lessons will likely be introduced. But, the terrible
realization of the first makes it clear that the time has come to
begin thinking about not only additional electoral reforms, but
some structural features of our Constitution that are dangerously
out-of-date, such as how the justices of the Supreme Court are
chosen.

First, we must ask how we could bring about improvements in such
fundamental aspects of our system. Article V only provides for
amendments, and only with the “consent of the
politicians” in Congress and three-fourths of the state
legislatures, not of us, the “governed” voters. But,
there is a logical method “we, the people” could use to
reform the Constitution from scratch, peacefully and legally,
making an end-run around the politicians. It is based upon three
items from our national heritage:

(1) Our belief in democracy’s keystone principle,
“government by consent of the governed”; (2) the only
U.S. Supreme Court decision in point, which held unanimously that
the courts must keep “hands off” (Luther v. Borden);
and (3) a valuable precedent for improvisation set by the founding
fathers, when they drafted our present Constitution. They boldly
ignored Congress’ instructions to simply amend the Articles
of Confederation, and instead drafted a completely new document.
Then they improvised a method of ratification, elected conventions
in only nine states, instead of using the impractical one in the
Articles for adopting its amendments, approval by all 13 state
legislatures.

We can follow their bold example and improvise an
“unofficial” method along these lines: forming a
mega-movement by getting the big public-interest organizations to
join in this project, with students and other activists making it
big enough to sponsor; organizing unofficial local conventions to
choose delegates and national leaders to an unofficial
“Citizens’ Convention” (“CitCon”),
which would draft a proposed new constitution and submit it to an
unofficial ratification election.

If the necessary super majority percentage of voters nationwide
as fixed by the CitCon voted “Yes, we consent” then it
would all become “official” retroactively, and America
would be reborn.

The following is a sample of the electoral and structural
reforms which the “revising mothers and fathers” of the
CitCon could propose in their new document, including a new way to
select non-partisan justices:

(1) Having a one-house Congress that combines about 400 district
members, and 100 senators elected at large using proportional
representation for fairness to small parties. An automatic
adjustment could be based on a nationwide two-choice vote for
“most trusted party,” computer-tallied, to avoid the
need for unstable coalitions by changing the allocation of seats
and voting strength as needed to give a working majority to that
party.

(2) Electing the 400 district members from 200 districts, with
just one ballot but electing both of the top two winners. It would
encourage good leaders to run, by removing the all-or-nothing
gamble. A computer-tallied two-choice vote would avoid wasting the
votes of small party supporters.

(3) Letting Congress elect the “Chief” (CEO) instead
of continuing to give the voters power to paralyze the government
by electing a president from a party other than the one controlling
Congress, just because of her or his charming personality.

(4) Requiring Congress to use a state-of-the-art computer system
for speed and decisiveness in all voting, including several new
kinds, plus an accurate record. For equal representation of every
voter, it would register a weighted vote for every member in
proportion to votes received when elected.

Computerized “feedback debate” would speed
concensus-finding by showing total member response after each
statement.

(5) Safeguarding against abuse of power by having a 60 to 80
member “Council of Guardians” elected by the CitCon and
serving for life, to oversee all agencies and keep them honest and
on the ball.

To avoid any conflicts of interest, they would have to get rid
of all investments and live on a generous salary and pension. Their
“president” would be the national symbol, and relieve
the Chief (CEO) of ribbon-cutting chores.

One group of them, the “Political Guardians,” could
conduct an official nation-wide voter opinion poll every two
months. When that showed most voters no longer supported the
majority party for two polls running, they would call an automatic
election. They would also allocate free TV and radio time ““
just debates and interviews ““ plus limited public funds to
all candidates to eliminate the legalized bribery of campaign
contributions.

Another group of “Law Guardians” would basically do
the Supreme Court’s job plus appointing and supervising the
lower court judges. That would stop the recent politicization of
the Court by senatorial inquisitions into their views.

Patriots in the original sense of the word should take up Ralph
Nader’s challenge: “Let it not be said by a future,
forlorn generation that ours was a time when we lost our nerve and
wasted our great potential because we despaired before we
dared!”

And if it all seems too mind-boggling to start in on, remember
Margaret Mead’s words: “Never doubt that a small group
of thoughtful committed citizens can change the world. Indeed,
it’s the only thing that ever has!”