My Three Wishes

If I could unilaterally change the U.S. Constitution, this is how I think I’d do it. These ideas will have flaws but they’re a start, right?

Article I, Addition of a section between 4 and 5 – Re-election of Representatives

“No person shall be elected to serve as a Representative of any State more than twice, unless said person is chosen by a majority greater than half of all eligible voters in the voting district. If the incumbent fails to attain a sufficient majority, his or her vacancy shall be filled by any other qualified person in the general election who attains a simple majority of all votes cast. Should no person meet these qualifications a run-off election will be held. Any incumbent failing to attain a sufficient majority in the general election may join in the run-off election, but must attain a majority greater than half of all votes cast. This section shall not apply to any person, having previously served as a Representative of any State, after two full terms have passed since their service.”

Thoughts: The purpose of this amendment would be to limit the amount of time that a person can serve as a Representative, unless that person is elected by a qualified majority. It would require at least a general election where the requirement to remain in office would be to attain more than 50% of all eligible voters, not just of all votes cast. If someone is to remain in office longer than two terms they should have the mandate of the majority of citizens who are registered to vote. If they don’t have that mandate, then they have been rejected by the people as a whole to be their representative in the legislature. If they fail to gain 50% of the vote, but reach a simple majority over all other candidates, then there would be a run-off election. In that election, any person would be able to run again, including the incumbent. Any person other than the incumbent who attains a simple majority would win the election outright. In order for the sitting Representative to be re-elected, he would have to attain a qualified majority of 50% of the all votes cast. I would implement a similar amendment with Senators and Presidents, although I’d limit Senators to one term instead of two.

It is important that the best person be chosen to represent us in government. We are a republic, not a democracy, and thus we must be able to trust those that will represent us in government. For more than 50 years, incumbent re-election rates have averaged 80% and have often topped 90%. It’s not because these men and women are better qualified, but because they have more resources. Their name recognition is greater due to their previous service, and they generally have access to greater campaign finance. An amendment like this would go towards leveling the playing field and it will limit the amount of stagnation that occurs in the federal government while at the same time allowing the best people a fair chance to represent their constituents. Change isn’t always good however the status quo rarely benefits the nation over the long term. I think that an amendment such as this, would inject new blood, and with it hopefully new ideas, into the legislature.

Article II, sec. 2 – Advice and Consent (amendment in italics):

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. In the event that the Senate fails to provide Advice and Consent within thirty calendar days of an active session, the President shall have Power to fill any vacancy temporarily, by granting commissions which shall expire upon the Senate providing Advice and Consent. Should the Senate fail to act prior to adjournment of Congress, their consent shall be deemed to be given.

Thoughts: As we have seen with Supreme Court nominations, most recently with Merrick Garland, the Senate has attempted to use their Advice and Consent powers as a weapon against Presidents with whom they do not agree. And we are the ones who suffer from their political games. Republicans are not the only party at fault; Democrats have used the same tactic in the past, but it is inappropriate no matter the perpetrator. The government, in order to be a benefit to the people, must function properly, and the creation of a lame duck court cannot be allowed. This amendment would allow sufficient time for the Senate to hold hearings to vet any potential candidates, and to give their advice and consent if appropriate. It also provides a deterrent to either party playing games with nomination proceedings, in that the President could appoint any candidate on a temporary basis until the Senate either approves/denies their nomination, or the Senate adjourns.

There is a danger that the Senate would hold off on approving a nominee, thus gaining a hold over that temporary appointment. They could wait until the temporary appointment made a decision against the majority decision and then decide to deny them approval. This would give the Senate an unusual amount of control over a justice or an ambassador, and the nominee could be swayed in their decision-making role toward the interests of the Senate majority. For that reason, I think it is important to place a timer on how long the Senate can wait. This amendment would allow the Senate 30 days during an active session to decide whether to hold a hearing or not, and if not then the appointment would be automatic. The “active session” language, or similar language, is important as well. This would make it so that the President wouldn’t be able to wait until the day before a session ends and just sneak a nomination through. 30 days of an active session would have to pass before the temporary commission could be granted.

Limiting the amount of procedural gamesmanship that politicians can play will only benefit the public. It will keep the gears turning and it will allow nominees a right to an up or down vote, thus keeping them from wasting in limbo. It would also free up time that presidents and congressman waste on such games, and allow them to focus more time and energy on other important matters.

Article III: Section 2 – Judicial Review

Added paragraph: “The Supreme Court shall be made up of nine Justices, with one Justice acting as Chief chosen by the other Justices. The Court shall have the power of judicial review over all legislative and executive actions. If the Supreme Court, by a qualified majority of five votes, finds that a legislative or executive action is incompatible with this Constitution, such action shall be deemed void. Such action shall remain void unless and until it is ratified by a two-third majority in each of the legislative houses. All other cases and controversies shall be decided by a simple majority, but no rule of law shall be made without a qualified majority of six votes.”

Thoughts: This amendment would codify certain traditions as well as make a few, in my opinion, needed changes. First, this would codify the tradition of having nine justices on the Court. This is not a drastic change; however it does prohibit the legislature or executive from threatening the Supreme Court as was done in 1937 (“the switch in time that saved nine”). Second, this amendment would codify the Court’s power of judicial review. This hasn’t really been a point of serious contention since the early 1800’s; however it should be enumerated as a power to protect from future attacks. Further definition may be beneficial as well; but either way it should be codified.

This amendment would make three changes to current tradition. First, by making it so that a majority of votes is needed for an opinion to create a rule of law, this amendment would do away with plurality opinions. Currently, if there is a plurality opinion where no single opinion received the support of the majority of the court, the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds. In essence, it means that no one really knows what the rule of law is, and the opinion acts as fodder for future arguments. This is inefficient and the above amendment would reduce the effect of plurality opinions. Instead, the amendment would make plurality opinions similar to ties. The Supreme Court would rule as to the specific case, but no rule of law would be created. Granted that would leave the controversy open for future litigation, but if a majority can’t decide on a rule do we really want a plurality making the decision? Second, the amendment would change the necessary votes to create that ruling from five votes to six. Too often we have changes of law and policy based on the decisions of five Justices. That is no way for a republic to function. Raising the necessary votes to six will limit the amount of policy change that occurs from the justices, and will hopefully lead to narrower rulings. The more votes needed to create or change a rule of law, the narrower a decision becomes to get as many justices on board as possible.

The third, and maybe most drastic change, is allowing a Supreme Court decision to be overturned by a super majority of each house of Congress—just like a veto. On rare occasions the Supreme Court will make very poor rulings. The most egregious in my mind is the Dred Scott decision, in which the Supreme Court held that “a negro” whose ancestors were imported into the United States, and sold as slaves, regardless of whether they had been freed or not, could not be an American citizen. Therefore, blacks would have no standing to sue in federal court. That decision was panned by a number of publications the day after the opinion was released. Although a bill to overturn it may not have achieved a super majority in Congress at the time, I’m certain that it would have achieved one prior to the opinion being “overturned” by the 14th Amendment in 1868, 14 years after it was decided. Our nation should not be held to policy determinations of a small number of its citizens, especially when those opinions are so terrible. This amendment would allow the People to speak through their representatives and, if enough concur, to overturn the opinion of five to nine Justices. It should be noted that there is some danger that a Congress would seek to overturn good decisions as well; however that danger is minimized by the required 2/3 majority in both houses, and we can look to the veto power as a guide to how often that is likely to happen. Since the inception of the Republic, presidents have used their veto powers 2571 times, and have been overridden only 110 times. That means 95.7% of the time the veto was upheld. I imagine that a similar rate would occur with Supreme Court decisions and it is my belief and hope that the 4.3% that were overturned would be the worst of the worst.

How would you change the Constitution if you could? Do you think these are good ideas or bad ones? Would they just create more problems or would they be good solutions?

The Natural Man: Selfishness

For the natural man is an enemy to God, and has been from the fall of Adam, and will be, forever and ever, unless he yields to the enticings of the Holy Spirit, and putteth off the natural man and becometh a saint through the atonement of Christ the Lord, and becometh as a child, submissive, meek, humble, patient, full of love, willing to submit to all things which the Lord seeth fit to inflict upon him, even as a child doth submit to his father.

– Book of Mormon, Mosiah 3:19

 

The verse of scripture above is one of my favorites, maybe because it is a struggle that I’ve felt my whole life. The natural man is a terrible burden that all of us bear. Our passions and emotions can be such great things, but they can also be a tragic burden when allowed to run amok. As Aesop said, “it is with our passions, as it is with fire and water; they are good servants but bad masters.” When we allow our passions, our desires, and our weaknesses to control us, we become slaves to them. Instead of being the best we can become, we are enslaved by the ease that comes in living without restraint. I hope to take the next few posts to discuss the pitfalls that come by following the lines of least resistance.

Selfishness is not living as one wishes to live, it is asking others to live as one wishes to live.

– Oscar Wilde

I am selfish. It is one of my greatest faults. I am selfish in my friendships, in my relationships, with my family, and in work. I am selfish in my service and in my worship. I am ashamed of my selfishness and it is where I think any discussion of the natural man should begin. Selfishness encompasses so much. It is part pride, part laziness, part indifference, and it will only result in being forever alone.

Selfishness believes that we are important, that we are better than others around us. When we feel that way, our selfishness steps in and we begin to treat people as less. Less than us, less than what they are, and less than what they deserve. Biting comments, a lack of patience, rudeness, and indifference are the result. And how terrible it is to be treated in that manner. John Adams mused, “whether they be old or young, rich or poor, high or low, wise or foolish, ignorant or learned, every individual is seen to be strongly actuated by a desire to be seen, heard, talked of, approved and respected.  To be wholly overlooked, and to know it, is intolerable.” To be treated so disrespectfully by someone that should love us is intolerable and friends and family will begin to look elsewhere when they are treated that way. As time goes by, when we continue to live in pride and selfishness, we will find that we are more and more lonely. The people that we once loved will have moved on, leaving us to wallow in our selfishness alone. As Elder Neil A. Maxwell once said, “Each spasm of selfishness narrows the universe that much more by shutting down our awareness of others and by making us more and more alone.”

Pride gets no pleasure out of having something, only out of having more of it than the next man. . . . It is the comparison that makes you proud; the pleasure of being above the rest. Once the element of competition has gone, pride has gone.

– C.S. Lewis

By defeating pride, by defeating the desire to see ourselves as greater than others, we squash the selfishness of the natural man. We become more compassionate and caring. We see people for who they are and what they are, and we not only treat them accordingly, but we want to treat them that way. We want to respect them and love them. not because it brings us pleasure, but because we love and admire them. In order to do that we must learn to control the natural desire to think only of ourselves. In so doing we become as Lao Tzu describes the sage. “The sage wears clothes of coarse cloth but carries jewels in his bosom. He knows himself but does not display himself. He loves himself but does not hold himself in high esteem.”

I have a lot of work to do. I have a long way to go to set aside my selfishness. It begins by treating my friends, my family, and everyone with kindness and respect. It begins by dedicating my thoughts and actions to showing the respect and love that I have for them. I will fail at times, and I will make mistakes. But I will spend each day trying to become better than the day before. I hope that each of us can do the same.