Amending the Constitution, revisited

Many people are frustrated at Congress. To this end it is no surprise that people have proposed amending the Constitution of the United States. I mean, why not? The Constitution even provides for an amendment process that, in essence, bypasses Congress, so additional limitations could be placed on Congress without having to even ask Congress to consider the idea first.

Amending the Constitution, however, is not something to be considered lightly or haphazardly. Nor is it something you should be persuaded into supporting with catchy language and tear-inducing images, such as the image of a scar-faced Marine in dress uniform:


With this image is this proposed text for an amendment to the Constitution:

Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.

There are several problems with this idea, chief among them being that people who propose amending the Constitution to satisfy their immediate urges for justice never seem to think beyond what is in their mind. The same could easily be said of those proposing to amend the Constitution to give Congress the ability to override the Supreme Court of the United States – anyone proposing such an idea needs to study Supreme Court jurisprudence to understand what would also be on the chopping block with such a power in the Constitution.

But let’s consider the language above of the newly proposed idea. What exactly is wrong with it? I mean it seems like such a good idea, doesn’t it? Well let’s take a look.

1. Use of the word “citizen”

This is the chief concern, the chief problem with this idea. The word “citizen” is used very infrequently in the rest of the Constitution, and with good reason: the initial architects of the Constitution wanted to ensure that the language of the Constitution was used to limit the government and not the people – yet it’s rather interesting how many conservatives want to amend the Constitution to do just that, but I digress.

So first and foremost, the words “citizens of the United States” must be replaced with “person” – i.e. “Congress shall make no law that applies to any person that does not equally apply to the Senators and/or Representatives”. But that, still, would not push me toward supporting this amendment.

2. The idea such an amendment is necessary

The chief issue with saying that Congress shall not do something is to imply they had that ability in the first place. Indeed this was the justification that Alexander Hamilton made in Federalist No. 84 against a bill of rights, such as what we currently have amended to the Constitution:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.

By amending the Constitution to say that Congress shall not pass laws that do not apply equally to itself than to the people implies that Congress had such a power to do such a thing at all. You see, they never had such a power. Even the Supreme Court has said continually that the Federal government is one of enumerated powers. Sure they’ve tended to allow broad strokes in interpreting what those powers allow, but they still at least recognize the precept.

In short what that means is that unless the Constitution specifically and explicitly grants a power to Congress, there is no power to exercise. So despite having a Bill of Rights against the judgment provided by Alexander Hamilton above, the Tenth Amendment is at least there to reiterate the notion that only the powers granted to the Federal government may be exercised.

And the only laws that Congress can pass that don’t apply to the citizenry at large are laws regarding the compensation of those working for the Federal government and the Uniform Code of Military Justice. But then these are powers explicitly granted to Congress.

3. It won’t meet the ends sought

The proposed amendment obviously seeks two ends: to force the applicability of “Obamacare” to members of Congress, and to force Congress to take a more “fair” pension.

We can all agree the pensions are considered part of compensation for services. You don’t perform the service, you’re not eligible for the pension. And under the Constitution, such compensations for services are to be defined by law, but that no raise in compensation may take effect until after the next elections for Representatives – i.e. a pay raise passed in 2012 won’t take effect until 2013.

Any law regarding the compensation given to Senators and Representatives has no applicability to the citizenry. So if Congress cannot make any law “that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States”, how then can Congress make an act declaring what the requisite compensation for their services shall be?

In short, they can’t.

Now this could be good or bad. This would mean that the current level of compensation provided by law would remain static should such an amendment such as the one proposed above be passed. So as cost of living for those serving in Congress continues to rise, and it’ll rise faster than for the citizenry at large, they won’t receive any increase in compensation to help cover this cost.

Knowing this will serve to dissuade many valuable individuals from pursuing campaigns for the House and Senate. Those who will be so dissuaded are those who could not afford to serve in Congress due to the lack of compensation for services. In other words the cost of exercising their duties and obligations would be greater than their annual income after taxes.

This means that only those left to serve in Congress are those who don’t need the money. In short we would find ourselves represented by a rich, powerful elite. In short, little would change from present day, but things would only get worse in the long run.

If the aim is to merely ensure that Congress does not receive a pension that is better than any provided to those retired from the military, better language can be selected:

No compensation to be provided to Senators and Representatives after the end of their service shall be of greater quality than given to any person after the end of any service in the Armed Forces of the United States.

If the aim is to ensure that benefits in addition to salaries are no better than what is seen in the private sector, better language can be selected:

All compensation for services provided to Senators and Representatives during the terms of their services shall be only in the form of a salary or wage and shall not include any benefits in addition.

These proposed ideas keep the language contained to just compensation instead of providing for language far broader than is necessary. If you’re going to amend the Constitution, the language must be strict and contained rather than wide and broad. Only in certain circumstances has the language of any particular amendment to the Constitution been wide and broad, such as that of the Due Process Clause of the Fourteenth Amendment.

But then the question needs to be asked:

Why amend the Constitution?

Amending the Constitution is intentionally difficult. Not impossible, but definitely difficult. This is why out of several hundred amendments considered by Congress, only 33 total have been proposed to the States, with only 27 having been ratified. The difficult process was intended to allow only the most critical amendments to actually be ratified.

This amendment is not necessary.

And it is bound to have more far-reaching consequences than even I have already foreseen.

Amending the Constitution is no small matter. Now there are issues that can be easily addressed by amending the Constitution, such as legally-sanctioned voter discrimination (Amendments XVI, XIX, and XXIV). The issue attempting to be addressed with the herein-discussed proposal, however, is not one of them.

The lessons demonstrated with the fallout behind the Eighteenth Amendment still have not been learned by a large majority of the populace: complicated issues require more work than simply shortcutting to amending the Constitution. The consequences of the amendment’s enactment need to be accounted, meaning one cannot be shortsighted in considering the idea, and one must consider all alternatives before considering proposing amending the Constitution.

Because once the amendment is ratified and enacted, it’s even more difficult to go back to the previous state of affairs.

That alone should always give a person pause whenever the idea of amending the Constitution, regardless of reason or ends sought, is raised.