Replace All Federal Taxes on Income with the Fair Tax Act , HR 25
Another way to amend the Constitution?
I'm sure most of us know the two most common methods of amending the Constitution by now - the "traditional" method which requires an act of Congress by two-thirds majority; a Constitution Convention called for by two-thirds of the legislatures of the states (37 states - has never been done).
I came across this little tidbit the other day while I was doing some research...
Popular Amendment
One other way of amendment is also not mentioned in the Constitution, and, because it has never been used, is lost on many students of the Constitution. Framer James Wilson, however, endorsed popular amendment, and the topic is examined at some length in Akhil Reed Amar's book, The Constitution: A Biography.
The notion of popular amendment comes from the conceptual framework of the Constitution. Its power derives from the people; it was adopted by the people; it functions at the behest of and for the benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787, "... the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them."
It makes sense - if the people demand a change, it should be made. The change may not be the will of the Congress, nor of the states, so the two enumerated methods of amendment might not be practical, for they rely on these institutions. The real issue is not in the conceptual. It is a reality that if the people do not support the Constitution in its present form, it cannot survive. The real issue is in the practical. Since there is no process specified, what would the process be? There are no national elections today - even elections for the presidency are local. There is no precedent for a national referendum. It is easy to say that the Constitution can be changed by the people in any way the people wish. Actually making the change is another story altogether.
Suffice it to say, for now, that the notion of popular amendment makes perfect sense in the constitutional framework, even though the details of affecting popular amendment could be impossible to resolve.
I'm just throwing this out there in case that might be a few "legal eagles" amongst us who might be able to provide some insight (the link to the book did not work and I've not had time to do any additional research).
Now, before we all start getting too excited, it should be pointed out that this has never been done either and indeed it seems there is a big question as to how it could even be done - but it is thought provoking none the less.
I can only imagine how the FairTax might do given this scenario. As for my own personal opinion, this would equate to a "mob rule" kind of thing - OK for a true democracy, but not good for a Representative Republic such as we have. Again, very thought provoking to say the least. Anybody know anything about a "National Referendum"?
My 3 cents (inflation).
I came across this little tidbit the other day while I was doing some research...
Popular Amendment
One other way of amendment is also not mentioned in the Constitution, and, because it has never been used, is lost on many students of the Constitution. Framer James Wilson, however, endorsed popular amendment, and the topic is examined at some length in Akhil Reed Amar's book, The Constitution: A Biography.
The notion of popular amendment comes from the conceptual framework of the Constitution. Its power derives from the people; it was adopted by the people; it functions at the behest of and for the benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787, "... the people may change the constitutions whenever and however they please. This is a right of which no positive institution can ever deprive them."
It makes sense - if the people demand a change, it should be made. The change may not be the will of the Congress, nor of the states, so the two enumerated methods of amendment might not be practical, for they rely on these institutions. The real issue is not in the conceptual. It is a reality that if the people do not support the Constitution in its present form, it cannot survive. The real issue is in the practical. Since there is no process specified, what would the process be? There are no national elections today - even elections for the presidency are local. There is no precedent for a national referendum. It is easy to say that the Constitution can be changed by the people in any way the people wish. Actually making the change is another story altogether.
Suffice it to say, for now, that the notion of popular amendment makes perfect sense in the constitutional framework, even though the details of affecting popular amendment could be impossible to resolve.
I'm just throwing this out there in case that might be a few "legal eagles" amongst us who might be able to provide some insight (the link to the book did not work and I've not had time to do any additional research).
Now, before we all start getting too excited, it should be pointed out that this has never been done either and indeed it seems there is a big question as to how it could even be done - but it is thought provoking none the less.
I can only imagine how the FairTax might do given this scenario. As for my own personal opinion, this would equate to a "mob rule" kind of thing - OK for a true democracy, but not good for a Representative Republic such as we have. Again, very thought provoking to say the least. Anybody know anything about a "National Referendum"?
My 3 cents (inflation).
Replies to This Discussion
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Permalink Reply by Gary Dubour on
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I'm glad you posted this! I never heard of it! So, if enough of us got behind this, we can do the popular amendment to enact the Fair Tax? Does it take 2/3 of the people? How do I get on board?
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Permalink Reply by Tony on
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Very interesting....but concerning at the same time.
Just because the majority 'go' for something....does not mean it would be a good thing.
Government has been treading on the constitution for a long time....now they're just steam rolling it.....and the majority have been voting for this for a while.
So while it may benefit us with the FairTax........it may open the door up to a lot more unwanted additions.
Just because the majority may support something, does not make it legal under the constitution. Finding ways to amend it easier may in the end destroy everything it stands for.
I'm cautious, but interested to learn more.
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Permalink Reply by Sean Fagan on
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I have discovered that the author (Akhil Amar) of the book named above "is Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and Yale Law School". I'm going to see if I can borrow it from my local library.
Meanwhile, I don't know the answer to your question Gary but I personally hope it would require an overwhelming majority of votes in order to be passed, maybe even 3/4 of the vote. The problem we have here in Florida is that the state's constitution is too easy to change and we end up with some really stupid laws.
It would ease the concerns I expressed in my original post and the ones put forth by Tony as well. The process should not allow amending the Constitution just by a simple plurality. Tony is right, just because the majority would go for something doesn't mean it would be a good thing. However, if 75% of the people vote for an amendment, then I would have to believe "We, the people" have spoken loudly enough.
I'm keeping in the back of my mind that Mr. Amar is a professor at a liberal university and this idea may just be a desire to make "mob rule" a possibility. I'll have to get the book to find out.
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I'll ask my old poli-sci teacher if I get a chance. She may know.
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I'm still trying to get my hands on a copy of this book from the library.
Meanwhile, the more I think about this the more I believe it might actually be, in this day and age, the best way to make changes to the Constitution (as long as an overwhelming majority of votes would be required - I personally favor a three-fourths margin).
Given that our non-representing Representatives seem to turn a deaf ear to the voices of America and a Constitutional convention might possibly lead to a complete rewrite of the greatest document in the history of the world; I find the concept of amending the Constitution one amendment at a time by a 3/4 majority of the people somewhat appealing.
What say you?
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Permalink Reply by David Shipp on
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Amendments can be proposed one of two ways. The only way that has been used to date is through a two-thirds majority vote in both houses of Congress. Alternatively, two-thirds of the legislatures of the States can call a Constitutional Convention to consider one or more amendments. This second method has never been used, and it is unclear exactly how, in practice, such a Constitutional Convention would work.
Regardless of how the amendment is proposed, the amendment must be approved by three-fourths of states, a process called ratification. Depending on the amendment, this requires either the state legislatures or special state conventions to approve the amendment by simple majority vote. Amendments generally go to state legislatures to be ratified, only the Twenty-first Amendment called for special state conventions.
see http://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Cons...
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Changing the Constitution by "in essence" a popular vote? That is not how I read Article 5.
I've been studying Article 5 and continue to read, but haven't seen any method other than what Article 5 says in the "King's English".
As I read, the only way the people can change/amend is a "Constitutional Memorial", in essence a document on a specific subject. In this case the Legislation , i.e. the Fair Tax, HR 25, and repeal of the 16th Amendment.
If the Constitution could be changed by popular vote, in my mind, that would indeed be troubling.
In addition I'd offer an abundance of caution reading scholarly papers from authors who have a history of "revisionist" thinking that, for instance; the Constitution is a "living" document.
In my humble opinion the document means exactly what it says, the background of our founding fathers' writings confirms that, just my two cents..... (Always understand what the authors say and there is plenty of writing from the framers during the drafting and ratification of the Constitution.) To start elsewhere is easy to be led "off point". I'm just urging caution and careful consideration.........
In sum, the founders have carried the fundamental principle of "self governance" throught the document and plainly stated how "We the People" can pass law, if needed. It is Article 5 as written.
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As I re-read my text above I added to it and edited....adding more detail and corrected a few areas. However the timer god ran out and I lost it all......... The above may do and generate questions. AHD.
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Allen,
Thank you for your most thoughtful response!
I must agree with you that this method of amending the Constitution is not part of Article 5 as written, and as such has no basis. But I have to admit that I was somewhat intrigued by the thought.
I am still trying to get a copy of this book through my local library system - just to see what the author's point of view is and how that might translate into the "real" world. Constitutionally speaking, of course.
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