D. B. Timmins
Foreword
It will astonish many to be informed that while the United States still has the reputation of being a relatively new nation, the U. S. in fact has the oldest, essentially unchanged form of government on earth.
Nevertheless, the U.S. Constitution (aside from the ten amendments constituting the Bill of Rights -- which was adopted virtually contemporaneously with the Constitution as drafted by the Convention, to avoid the complications of having to call a new Convention when it appeared the new organic act for the United States might not be approved by enough states to assure ratification because of doubts over individual and states rights) -- has experienced no more than 15 other amendments over the past two hundred years. Virtually none of these, with the exception of the four providing for direct election of senators, citizenship for Blacks, the right to vote for women, and the Income Tax, have significantly affected the form or substance of American government crafted by the Founding Fathers. Two of the remaining twelve changes involved the imposition (and subsequent revocation) of Prohibition on the production and use of alcoholic beverages. One changed the date of elections and of the inauguration of new presidents, another imposed a limitation of two terms of office for the president, a further amendment formalized the line of succession to the presidency in the event of the death of both president and vice president, and one made provision for succession in event of the incapacitation of the president.
The reputedly much older British government, on the other hand, has radically changed form since the American Constitution came into effect. Today Parliament, not the Monarch rules Great Britain. While the Queen remains the formal Head of State, the Prime Minister and his Cabinet in fact decide all political issues, which are then approved by Parliament as a matter of Party discipline (unless enough individual MPs have lost confidence in the PM to the extent of being willing to risk a new election). And are then ratified without fail by the Monarch in whose name legislation is performed. Perhaps of greatest importance, the choice of Prime Minister is no longer a subject of royal prerogative: he (or she) is chosen by the majority party in Parliamentary caucus as its leader, thus becoming the sole possible option for the Monarch. Indeed, the contemporary concept of Parliamentary democracy and Cabinet responsibility is according to most students a direct result of the failings of the earlier system of British government which led to the American Revolution. Further major modification in British government appear to be in train, including proposals for the abolition of the monarchy.
Out of reverence for the Constitution, or possibly mere satisfaction with the general success of our system of government, Americans have been slow to accept the fact that as with tax legislation, there is no eternally perfect form of government. As economists have long known, any city, state, or nation which thinks it has arrived at perfection in its tax system will, after a dozen or so years, find its tax base experiencing serious erosion as individuals and businesses find ways to change their spending and investing patterns to take advantage of the tax system in place. Every taxing authority is thus compelled to alter the tax base from time to time if for no other reason but than to preserve the revenues essential for the operation of government.
Nations are similarly caught between the example of the United States, with its two hundred year old form of government -- which is beginning to exhibit some of the arthritic symptoms of old age, and those of some African and Latin American peoples who seem to find it essential to undertake radical constitutional reform with every new ruler -- or at least every fifteen or twenty-five years.
We are all aware that Bill Clinton, elected with 42 per cent of voter support, was the first minority President of the United States since Teddy Roosevelt split the Republican Party vote in 1912. Ross Perot, responding to the rousing reaction to his 1991 address to the Movement for Constitutional Reform directed at getting American government back on the track, allowed himself to be seduced by the thought that a determined man could overcome the inertia of American history and Supreme Court precedents, and presented himself as a presidential candidate. What Perot (and other would-be reformers) failed to take into account, is that the Constitution of 1789 -- even as amended -- has been so interpreted by the Court, and so exploited by Congress during the past 200 years, that it is impossible for a President -- even one with an overwhelming majority of his own party in Congress -- to extricate American society from its predicament.
By reason of the "override" a President cannot not take away a determined Congress's power to impose taxes, or give final shape to the budget. Nor can he reverse Supreme Court decisions regarding the right to state welfare and free education to illegal immigrants. Nor, despite Mr. Perot's statement about cracking heads to suppress street crime and the drug traffic, could even the most determined President overcome Supreme Court decisions limiting police powers and assuring access to a government paid public defender, at least not without wrecking our Constitutional system, increasing disregard for even the highest law.
Any determined President might activate a line item veto (which the Wall Street Journal some four years ago suggested is a Presidential prerogative unused since Colonial times, and which is still in his arsenal of unused weapons -- and which I and others suggested without avail that President Bush try on for size). The worst that could happen would have been for him to be overruled by the Supreme Court. But both President Bush and President Clinton have been curiously reluctant to try marking out this new ground despite their clamor for line item authority.
Any President could moreover cut back the size of the White House Office (as Mr. Clinton initially tried to do, only to run into a media buzzsaw -- eventually discovering that he needed pretty well everyone in place to function anyway). And he could reduce both his own and Congressional use of military airplanes -- but such economies are peanuts, and can in any event last only for the term of one's Presidency.
To be sure Presidents can play less golf and fish less often. But they can't do a thing about the size of Congressional staffs or Committees. Or Congressional free haircuts, or lunches, or multiple offices. Or demand Congressional subjection to the laws they impose on the rest of us. Or require voter approval for salary increases. Nor without Constitutional Amendment can a President unilaterally impose an annually balanced budget. Just observe how limited success has been in trying to do this by legislation (Gramm-Rudman-Hollings).
Since electing even a determined President thus won't allow solutions, this leaves us with just two options: We might try to get accepted a series of Amendments such as those proposed for terms limits and a balanced budget, (or even a single all-inclusive Constitutional Amendment embracing these [and other] amendments), either of which approach is in the process of passage and ratification by states sure to be deformed beyond all recognition and end up not resolving the problems. Or we might call a Constitutional Convention as provided in Article V.
PROVISIONS WHICH MIGHT BE INCLUDED
WHEN REVISING THE CONSTITUTION BY A SECOND CONVENTION
The Founding Fathers, recognizing that no written document could provide indefinitely for the needs of what even then was recognized would be a dynamically growing new nation, provided two methods for future amendment of our organic document -- the Constitution of the United States: Congress can, by two-thirds vote, adopt an amendment to be forwarded to the individual states for ratification (again by two thirds vote). Or Congress (or the States) may call for another Constitution Convention to consider amendments or alterations, the draft of which, again, would be subject to approval by two thirds of the states. The original Constitution has been amended (beyond the Bill of Rights adopted almost contemporaneously with the original document) no more than fifteen times in over two hundred years -- all by the first method.
But as Congress has proved obdurate to proposing amendments, e.g. a Line Item Veto, a mandatory Balanced Budget (subject to a two thirds override in times of emergency), or Term Limitations for Senators and Congressmen (a Term Limit for Presidents was adopted in the '50s after FDR's unprecedented four term presidency) -- thought to be essential to successful government in the contemporary world -- it has been suggested that a Second Constitutional Convention be convened to consider such amendments.
There has been little support for this proposal, many government officials and media pundits -- even some academics -- fearing that such Convention might run wild, completely altering our form of government -- one of the most successful in the world. Need one say that such concern reflects poorly on the Founders -- who in incorporating this means of providing for future amendment clearly had more confidence in the good sense of their descendants that we seem to have in ourselves.
But with rising public disillusionment with government, voter boredom, as demonstrated by low voter turnouts even for Presidential elections, increasing despair over getting ahead of the rising crime and illegal immigration power curves, taxes which are rising faster than incomes, abuse of the public welfare system which has become the largest item in the national budget, falling educational standards, the faltering war against drugs, and the effective alienation of a whole generation of youth, perhaps the time has come to reconsider the need for the Convention approach. At the very least, media PR associated with such a major undertaking would, over the two or three year period essential to carry out the project, restore a sense of the relevance of government to the average American citizen by making the Federal system one to which they feel a relationship of contemporary creation (or reconfirmation of historic provisions). Certainly little has come of administrative or legislative attempts to streamline the U.S. ship of state, heavily barnacled after two hundred years of sailing the world's seas. Virtually nothing resulted from the costly Grace Committee Report. Nor the Gramm-Rudman-Hollings Act to compel a balanced budget. Nor Vice President Gore's much ballyhooed program to Reinvent Government.
Indeed, as the American electorate became more and more disenchanted with government prior to the 1992 Presidential elections, Ross Perot -- who had been speaking much regarding the need for new approaches to government, while denying any personal interest in running for office, was approached to see if he would be willing to use his substantial influence to back (and perhaps provide the initial framework) for a Movement for a Constitutional Convention . He had the clout and charisma, demonstrated by the size of his audiences (and confirmed by the vote he eventually drew). Sadly, Perot succumbed to the call of ego and entered the Presidential lists. While it cannot be denied that a Second Convention might indeed radically change what is after all perhaps the best and most stable government on earth, this concern could in large measure be diminished, by limiting the terms of reference of a Second Convention to considering a specific list of Amendments, which would, one hopes, include but not be limited to the detailed list below, compiled after careful study of the suggestions and recommendations of any number of thoughtful individuals in recent years. But most would now agree that concern over the nation's deteriorating social and economic situation, as demonstrated by almost a quarter of the American people willing to vote for the promise of radical reform by a candidate such as Ross Perot, plus the presence on the scene of a man with Perot's charisma, financing, and determination, make such an initiative realistic for the first time in two centuries, warranting the risk of a Convention's perhaps ranging somewhat more widely than its terms of reference should other needful amendments be brought before it for consideration. No definitive changes in the existing Constitution could in any event be imposed without approval of two thirds of the states.
Perilous times require radical solutions. While some might disagree, the majority of economists and historians are of the opinion that Franklin Roosevelt's radical programs of the early 1930s saved American capitalism. More would agree that DeGaulle's radical reforms of the early 1960s saved French democracy at the time of the Algerian crisis.
It would be an important part of strategy, locking towards the ratification process, that as much of the original language as possible of the present Constitution be left unchanged to preserve the awe most Americans have for the document enshrined in the National Archives; and above all to preserve a sense of continuity and stability in what is, after all, the oldest essentially unaltered form of government on earth. We do not want just another nicely drafted new organic law, as so many other nations generate every twenty-five years or so. Rather, what is needed, is an up-dated version of what has served so well for such a long period of time.
Among the items a Second Convention might consider are the following:
1) A limitation on Congressional terms of service to avoid the type of pandering to public greed which has entrenched in office the biggest spenders and led to the defeat of the sage few dedicated to a balance between attractive social programs and the nation's resource base. As Peggy Noonan, speech writer to both Presidents Reagan and Bush says in her book What I Saw at the Revolution, "What did I learn in my time in government? If you join government . . . make your contribution and move on . . . . Beware the politically obsessed. They are often bright and interesting, but they all have something missing in their natures; there is a hole, an empty place, and they use politics to fill it up. It leaves them somehow misshapen". If American politics is to be healed, we must return to the citizen representative. Just how term limitation is to be achieved should be left to the Convention, though most opinion seems to favor two terms in the Senate and perhaps six in the House.
- Requirement for a balanced budget
, except in times of Presidential declaration of clear national danger -- at which
times the provision could be overridden by a 2/3 majority in both House and Senate.
It might also be provident to include in this new provision a limitation on the
annual proportion of income which could be demanded in taxes as well as a limitation on the
share of property which can be taken in the form of inheritance tax. When the Income
Tax amendment was first adopted, people were told that income taxes would surely
never exceed two percent. (It might be appropriate to enable such provision, too, to be
overridden by joint 2/3 majorities in periods of national crises, but for periods
not to exceed the duration of the crisis).
- Clarification that overt acts contrary to law, e.g. flag burning and riotess manifestations
are not to be construed by the courts as "free speech" or "freedom of peaceful assembly
or petition".
Let those so inclined use their influence through persuasive public discourse and
writing to alter the outlook of the majority, and thus the laws, as the Founders
understood the purpose of "free speech" and "free assembly" to be. The guarantees
of Free Speech and Assembly were never intended to constitute a shield of protection for purveyors
of filth, violence, and social discord, but to assure rational public discourse as
a safeguard of political freedom.
- Confirmation that the death penalty is not "cruel and unusual punishment"
. Those who assert that capital punishment is not a disincentive to crime disregard
the hard fact that 80 per cent of criminals are recidivists. Those who've raped,
when released, rape again. Those who kill, kill again too frequently to justify
parole of anyone involved in a violent killing in pursuit of an associated criminal act.
Nor should it be overlooked that those who've been executed never commit another crime
-- an undeniable disincentive to future criminal activity
. It is common today to argue that the death penalty is nothing more than a crude
attempt at retribution. Looked at from the common sense point of view of our ancestors
of not more than eighty years ago, it can better be seen as simply enhancing the
safety of the group through permanent removal of mad dogs from civil society. But this
is too ugly (and simple) a thought for today's sophisticated criminologists and public
policy apologists. As for cruel punishment: which is crueler -- years in prison
shut off from normal human intercourse and subject to violent attack and rape by fellow
convicts, or painless release (by injection) from the demands of a misspent life?
The most significant issue regarding the death penalty seems to be the possibility of executing an innocent person. Life is full of hazard, and errors are inevitable. The execution of an innocent person is indeed one of the major tragedies of human affairs. But so are the rape or killing of an innocent person on the street -- or in her home. The sole purpose for civil government, under the American theory of government, is to maximize peaceful, fair, social intercourse through a state monopoly of judgment and sanction of differences between members of the society, who in turn give up their rights to unilateral action. If the state allows itself to become paralyzed in defending the rights of its citizens with respect to the most serious outrages, out of fear of making an error of judgment, it must yield its monopoly of sanctioning less significant civil and criminal wrongs, as well as of taxation to cover social welfare and related activities. Each and every one of these is equally subject to error in judgment or application. In such circumstances, it is not surprising to see increasing numbers of abused people taking the law (back) into their own hands.
As for less serious offenses, bi-partisan agreement is emerging that the commission of two (or three?) violent crimes should result in a true lifetime sentence, i.e that violent recidivists leave prison only in a box.
This should be a doctrine of punishment enshrined in the redrafted Constitution so that soft heads will not soon release other hordes of violent criminals on those who have yielded the right of self-administered justice, in favor of a compact with society at large to be protected from law breakers. As for those who assert this will mean more prisoners and the need for more prisons, so be it. Surveys have shown that people would be far happier paying for the security in home, school, and on the street, that government was instituted to provide, than for more Congressional perks. This amendment might also enshrine loss of civil rights (voting, standing for office, service in appointive office, or licensing as a professional) for anyone convicted of a felony. This used to be taken for granted, but has been eroded by court decision over the years until convicted felons are soon found standing for public office, practiving law or medicine, or back selling stocks on Wall Street (contemporary case in point: Marion Barry reelected Mayor of our nation's capital).
- Imposition of court and legal fees on the losing initiator of tort cases
to discourage contingent fee lawyers from soliciting cases of marginal merit. This
could be done by legislation, but let's write it into our basic law so future Congresses
won't be tempted by lawyer lobbyists to preserve the present practice of barratry. This will be essential if a national health care program, or some variant of it,
is adopted in order to discourage lawyers from drumming up trade by taking on the
cases of dissatisfied public health service clients on a contingency fee basis.
- Authorization for courts to limit pre-trial media coverage
, or delay publication of books, bearing on cases of national security, or whose
outcome is of great national legal or political importance (the Thomas Supreme Court
hearings, the Ames spy case, or the O.J. Simpson trial), as in democratic Great Britain
- Exclusion from Supreme Court jurisdiction and review of variant local measures related
to social issues not related to Foreign Policy, War and Peace, more narrowly defined
matters of Interstate Commerce, or other matters of clearly national scope
-- as for example those banning pornography from schools, libraries, and conspicuous
public sale (discreet private possession okey when ordered by mail from a more liberal
jurisdiction), or consideration of non-denominational public religious events (e.g. Christmas creches, Hanukka candles,high school graduation prayers, etc.
Similarly, the Court should be barred from reviewing reasonable limitations on the right to abortion, once more reflecting the Constitution's respect for differing local sensitivities which the Founders wisely recognized are inevitable in a geographically large and socially diverse nation.
Because these have become such hot contemporary issues, and because differing and strongly held religious views are sure to endure, a special amendment should be considered in this regard -- though, logically, review of local social legislation of this sort should be covered by amendment recommendation 8, below (and should have been covered since 1789 by Bill of Rights Articles IX and X). If one is upset by the deeply held religious opinions of the majority of one's neighbors, one should swallow such difference of opinion while glorifying the merits of democracy -- or move to a jurisdiction more in harmony with one's own belief system. (Curiously, many currently argue for a five day wait to purchase a gun -- which may or not be used to commit a crime -- but are opposed to an overnight wait to weigh a decision on abortion which without question terminates a life. As long as freedom of movement continues to be available, anyone strongly out of harmony with the sentiment of the community in which she has chosen to live can always travel across a state line or two for an operation she cannot get at home).
N.B. Such limitations would also resolve the problem of states being compelled by Supreme Court decision to pay for the skyrocketing educational costs of illegal alien children and welfare costs of illegal alien paupers which are busting budgets in California, Arizona, Texas, and Florida. (See also recommended provision 14, below). At present there is an enormous attraction (which the author observed at first hand while living abroad for forty years for Mexican -- and other foreign parents -- to slip their children into the U.S. to live with relatives, where they will receive a superior education at no cost to the parent. Or to slip across the border themselves, becoming -- though illegal and having paid no taxes -- eligible for Texas, or Arizona, or California welfare assistance at a level well above the salary of many professionals in their home country. A large and rapidly growing illegal alien problem is also just over the horizon with respect to oriental illegals. (See item 9, below, for a suggestion regarding the citizenship status of the children of such illegals).
- Imposing on those born in the United States of alien parents restrictions at least
as stringent as those required of children of U.S. parents born abroad regarding
the acquisition of citizenship,
i.e. that at least the mother be a legal resident at the time of birth and have at
least five years residence between the age of 12 and 21. This would remove the incentive
for Greek ship captains to bring pregnant wives along on trips to New York in hopes the child will be lucky enough to be born in port or in a U.S. hospital. Or pregnant
Mexican women to cross the border as they approach term, either on a temporary admission
mica
or just plain illegally, hoping that their child will be born an American citizen
during a shopping trip or visit to a relative.
- A provision limiting any one act of legislation to the specific purpose for which it is drafted,
thus eliminating the possibility of "Christmastree Legislation", which opens the way
for all sorts of add-on spending measures to induce support from manipulative Congressmen
for bills they would otherwise oppose.
- A requirement that funds raised for any specific purpose, e.g. roads and highways
or social security, be spent only for that purpose
and no other.
- A provision specifically subjecting Congress and Congressmen to all aspects of any law they have
enacted
-- thus eliminating forever Congressional immunity from equal rights and other elements
of law they have imposed on the rest of society. (Note added 1/20/95: While the new
Republican majority has adopted such House rule, this will endure no longer than
its term).
- A ban on Congress subjecting states or local governments to any expenditures unless
funding for such mandate is included in the same legislative act.
- More controversial might be for the Convention to make it possible for elected Senators or Representatives simultaneously to serve
in Presidential Cabinets as Heads of Departments.
Surely this would be found no more burdensome time-wise than serving on or chairing
major Committees, particularly if day-to-day operations were left in the hands of
a qualified deputy -- as in the British system -- and were the Old Executive Office
Building reserved for Cabinet Secretaries and a small (no more than half dozen), senior
liaison staff.
This borrowing from Parliamentary systems, might bridge the gap between the White House and the Capitol, not always, but sometimes, avoiding stalemate and speeding up the legislative process, especially with opposing parties controlling the White House and the Congress. This is not to suggest wholesale adoption of the Parliamentary system: it is too late in history for that. But surely the mind of man should be able to devise some way to bring the President's views formally before the Congress more frequently than once a year in the State of the Union address. Some form of weekly question and answer period with Heads of Departments simultaneously serving in the House of Senate would be helpful. It would also assure familiarity with the governing and budgeting process; and, given comity, would also help grease the skids during the confirmation process and when controversial legislation came before Congress.
- Granting senatorial status to ex-Presidents for life, (and Secretaries of State and
Defense? -- with or without voting rights?, for life? for the term immediately following
their departure from office?)
-- a notion somewhat akin to the British system of granting life lordships to distinguished
ex-Ministers and senior civil servants. This would importantly ease intra-party
conflict. Even if Ex Officio
senators chose not to attend regularly, they could show up to debate important legislation
in areas where their expertise could be influential. And it would marginally bridge
the gap (sometimes) where the White House and Senate are controlled by opposing parties, bringing an element favoring the national (and possibly less partisan) interest
into a body where local and partisan interests all too often determine the outcome
of a vote.
So much for specific amendments: A bit more discussion over the importance of assuring more flexible treatment of local differences over social matters.
Some students of politics are of the opinion that not only did the Founding Fathers esteem such local differences would never be considered to be matters of national public policy, but thought they'd explicitly left their determination to States or local communities. Both Articles IX and X of the Bill of Rights speak directly to this reservation from federal control of not-specifically-delegated powers -- though neither Article has been cited by the Court since it invalidated the Agricultural Adjustment Act on Tenth Amendment grounds in 1936, causing President Franklin D. Roosevelt to threaten to enlarge the Court (the "Court Packing" event of 1936), and bringing about a quick switch by Justice Owen Roberts in the next case, West Coast Hotel Co. v. Parrish (which presented virtually the same issues), thus reversing the Court's previous holding in the AAA case. AsWilliam Leuchtenburg succinctly concluded, "Never again did the Supreme Court strike down a New Deal law, and from 1937 to the present, it has not overturned a single piece of significant national or state socioeconomic legislation. Many believe that the Court has forever abandoned its powers of judicial review in this field". (The Supreme Court Reborn, Oxford University Press).
As the current wrenching division of views over abortion, drug use, school prayer, gun control, and salacious and violent media presentations is demonstrating, the Founders were wise to thus restrict Federal authority to limited areas in which difficult-to-achieve national unanimity is essential -- as in so many other aspects of government where their foresight and wisdom are still universally held in awe.
Regrettably, both Congress and successive Courts have ignored this wisdom. It would thus, as already suggested, not hurt to add a contemporary provision by the Constitutional Convention emphasizing that the sentiment of this generation of Americans supports that of the Founding Fathers in this regard.
As noted, concern has been expressed over ever again calling a Constitutional Convention, primarily out of fear that it could go beyond the immediate need for which it was convened, bringing all sorts of established customs and usages into question. But it can be persuasively argued that the health of the body politic has deteriorated to a point where such an extreme remedy is the only way the nation might be saved. Extreme crises call for extreme remedies.
It is widely agreed that the New Deal saved America from either communism or fascism during the '30s.
And DeGaulle's new constitution for France's Fifth Republic, while at the time criticized as a personal grab for power by those who saw it going far beyond any previous French models for strong government (since the Revolution of 1789), saved post-Algerian French democracy -- and has proved more remarkably durable and flexible than anyone could have hoped.
The very fact that the Founding Fathers recognized the eventual need for major constitutional review speaks in its favor and to their wisdom.
If a Convention succeeds in approving some form of Balanced Budget Amendment (extending even to ballot referendum as some have suggested); referendum approval of changes in Congressional, Judicial, and Presidential salaries; limitations on government perks; limitations on campaign contributions; prohibition for life of post-term Presidential lobbying (not much sacrifice to make in return for the high honor of having served as President and the substantial retirement benefits extended to ex-Presidents -- pay, office and support staff -- and look at the embarrassment caused by former President Reagan's work for Japan); and a five year wait for post-term Congressional and Cabinet lobbying, efforts could then be shifted to lining up state support to ratify these provisions. State ratification can be carried out either by State Legislatures or State Conventions. Nothing is said in the Constitution about how State Conventions are to be called. One would assume this could be either by State Legislative Act or by Initiative carried on the ballot during state elections.
However untried and initially daunting this approach may appear, it holds better promise for eventually achieving the major reforms outlined not only by Mr. Perot, but by other serious students of our national problems, than anything that could be accomplished in the White House or by trying to work through the existing Federal Congress, given Congress' inertia and enormous conflicts of interest.
Whichever major public figure takes on this task, by limiting himself to the role of promoter of a Second Constitutional Convention, would go down in history as more notable than all but a handful of our Presidents. Indeed, if some major political leader could be prevailed upon to help foment and then preside over a successful Convention , he would enter History as an additional Founding Father, among the select group of Franklin, Jefferson, Madison, Adams, and Washington. Evaluated from the perspective of political theory, he might even be viewed in history as a Great Legislator in the pantheon of Hammurabi, Solon, and Moses. establisher of a new national political framework -- and thus a true "law giver", not a mere tinkerer after the fact with petty rules and regulations, with the relative anonymity of subsequently elected representatives of the people.
AmEmbassy - Bucharest
APO AE 09213-1315
January 20, 1995
The Honorable Orrin Hatch
Chairman, Senate Judiciary Committee
United States Senate
Washington, D.C. 20510
Dear Senator Hatch:
Congratulations on your elevation to the Judiciary Committee Chairmanship. I realize the Senate was not party to the House's Contract with America , but I suspect as one of your long-time suppoters that you are sympathetic to most of Mr. Gingrich's objectives as expressed in the Contract . Of course Party Platforms were historically supposed to be just this. But platforms have been devalued over the years -- as with President Bush's "read my lips" message -- and people no longer have confidence in them. Seems to me the House Republicans struck on a good idea -- something half way between the formal contract of the Constitution and the promises of a platform. And it certainly seems to have worked. I think Congressman Gingrich read the mood of the American people correctly. We're just about fed up with Washington politicians disregarding the things we hold important. But as something of a student of Constitution Law, I suspect that many of his proposals are going to be thrown out by the Courts. Therefore I think he'll find that more of his proposed reforms must run the gauntlet of Constitutional Amendment than he anticipated if we are to have any hope of working our way out of our fiscal, moral, and social problems.
I enclose a paper some of my academic friends and I put together before the last Presidential election, originally in hopes that President Bush might espouse some of the ideas. Then as Ross Perot's candidacy began to look serious, in hopes we could divert him by getting him to lend his time and talents to achieving some of these basic reforms instead of serving only as a spoiler. Of course his ego got in the way and he succeeded in giving us the first minority President since Woodrow Wilson. While it appears that two or three of the items are now under consideration, I'm sending the paper on to you as Chairman of the Judiciary Committee in hopes that you and your staff can give it some attention -- particularly recommendations 7, 8, 9, 14, and 15 which I think must be embodied in our wonderful two hundred year old contract if it is to serve us into the next century.
1. Given how illegals try to enter the U.S. so their children will be born U.S. citizens, acquiring residence rights for the parents and welfare rights which are busting state budgets, I think a Constitutional Convention should take a look at how we define acquisition of citizenship to make this more in line with other countries and with how citizenship is acquired by children of U.S. citizens born abroad. (see numbered para 9). I can think of no more powerful way to discourage undocumented aliens from seeking to enter the U.S. illegally than to bar them and their children born here of access to American education and welfare.
2. Clarifying that overt acts such as flag burning and riotess manifestation are not to be considered free speech. If the Supreme Court could hold that the Mormon practice of plural marriage was not protected by the Freedom of Religion Clause, how can riotous flag burning he held to be free speech?
3. Confirming that the death penalty is not to be considered cruel and unusual punishment. (By the way, I was disturbed to learn that the Utah Supreme Court had reprimanded and dismissed the attorney of a convicted killer in the Utah State Prison -- who had admitted guilt and had instructed said attorney not to attempt a stay of execution -- on grounds that the attorney had been remiss in not overriding the instructions of his client. Are clients to be denied the fundamental right to give their attorneys direction? And attorneys to be not only expected, but required to subject their clients to the costs, whatever these may be, of any free-wheeling defense the attorney can devise? Perhaps an Amendment relating to the legality of the death penalty should contain language crafted to cover this aspect of the attorney/client/court relationship.
4. Imposing court and legal costs on the losers of civil suits to diminish multiplying accident and medical suits, often instigated by attorneys soliciting contingency fee clients.
5. Exclusion from Supreme Court jurisdiction and review variant local measures, e.g. pornography (decisions regarding which when I studied Con Law we were told the Founders intended to be reserved to the States by Articles IX and X). Perhaps we need merely reenact Articles IX and X in their present language to send a message to the Court that the people still read these provisions with their original intent.
6. A requirement that funds raised for a specific purpose be spent only for that purpose -- to discourage funding new programs out of other funds, e.g. spending Social Security money on the overall budget deficit.
7. A ban on Congress subjecting States or Local Governments to expenditures unless funding for such programs is included in the same legislation. (Note added 1/20/95: While the House's recent action may cover this for the time being, it can do so for no longer than the continuation of a Republican majority).
8. Finally, providing that former Presidents should become ex-officio Senators for life -- rather like the creation of former British Prime Ministers Life Lords, so the nation can benefit from their experience. More controversial might be a proposal that former Secretaries of State and of Defense serve as ex-officio Senators for the term following their resignation. I think this proposal would make the Senate somewhat less political and increase its national interest perspective slightly. I'd also like to see the Constitution amended to make it possible for the President to name Senators (or Congressmen) to serve as members of his Cabinet. This should be fully possible with an experienced Deputy Secretary handling day to day matters, and should enormously improve relations between the Executive and Legislative branches, reducing the chance of legislative gridlock.
I'm writing just to make sure that you will not have overlooked any of these additional items beyond current discussion of the term limitation, line item veto, and balanced budget amendment, which I'm convinced will be needed to make our government functional during our third century.
Sincerely,
D. B. Timmins, PhD (Harvard)
AmEmbassy - Bucharest
APO AE 09213-1315
ovember 15, 1994
The Honorable Pete Domenici
United States Senate
Washington, D.C. 20510
Dear Senator Domenici:
Saw your interview with John Kavich on the McNeil-Lehrer Report, all the way here in Romania. Until we were transferred to China -- and then Romania, my wife and I served at the American Consulate in Hermosillo, Mexico and used to visit our neice in Scottsdale every three or four weeks. Got to consider you more or less our Senator. Last time I wrote you was four or five years ago: you sent me such a reasoned response that at this moment of sea change in Washington politics I can't forebear sending you some of my thinking about the three major problems the nation faces: illegal immigration; a national welfare program run rampant which is creating multi-generation welfare dependency rather than alleviating poverty; and budget and trade deficits which threaten not only our way of life, but future generations. I realize you won't have time to read all the enclosures (perhaps not even this letter), but hope you'll have your staff read everything carefully since I have over thirty years first hand experience with international finance (was senior economist in the State Department's Office of International Finance and Economic Advisor to the US Mission to the OECD in Paris), observed the roots of the immigration problem at the largest US Consulate in Northern Mexico, and have been a life-long, concerned Republican (campus co-Chairman of Young Republicans for Eisenhower, Dole representative among the many American expatriates in Northern Mexico, and Chairman of Republicans Abroad in China during the 1992 Presidential election.
Contrary to some, I considered the Contract with the America not only to have been clever politics, but just what we Americans of all political persuasions were waiting for. Of course Party Platforms were historically supposed to represent just such pre-electoral promises. But platforms have been devalued over the years -- as with President Bush's "read my lips" message -- and people no longer believe them. Seems to me the GOP Members of Congress struck on something useful: half way between the formal contract of the Constitution and ephemeral platform promises. It it was rewarding to see how it resounded with the people at election time. I think you read the mood of the American people correctly. We're fed up with Washington politicians disregarding the things we ordinary citizens hold important. And I agree that at least some of these reforms must be added to our fundamental contract, the Constitution, if we are to have any hope of working our way out of our fiscal, moral, and social problems. Indeed, as you will see, I believe that while we're at it, we should adopt a couple more fundamental Constitutional changes which will be essential if the US Government, as we've traditionally known it, is to endure into our third century of nationhood.
You will be Chairman of a Senate Committee looking for ways to engineer a budget to accomplish the Contract. I enclose a paper I wrote before the last Presidential election, originally in hopes that President Bush might espouse some of the ideas. Then as Ross Perot's candidacy began to look serious, in hopes I could divert him to lend his time and talents to achieving some of these basic reforms instead of serving only as a spoiler. Of course his ego got in the way and he succeeded in giving us the first minority President since Woodrow Wilson.
In addition to the promise to work towards term limitations and a balanced budget amendment, I think there are four or five other fundamental amendments we need to embody in our wonderful two hundred year old contract if the GOP is to be able to deliver on its promise of welfare reform, and immigration and drug control:
1. Given how illegals try to enter the U.S. so their children will be born U.S. citizens, acquiring residence rights for the parents and welfare rights which are busting state budgets, I think a Constitutional Convention should take a look at how we define acquisition of citizenship to make this more in line with other countries and with how citizenship is acquired by children of U.S. citizens born abroad. (see numbered para 9). I can think of no more powerful way to discourage undocumented aliens from seeking to enter the U.S. illegally than to bar them and their children born here of access to American education and welfare.
2. Clarifying that overt acts such as flag burning and riotess manifestation are not to be protected by the free speech guarantee.
3. Confirming that the death penalty is not to be considered cruel and unusual punishment.
4. Imposition of court and legal costs on the losers of civil suits to diminish resort to multiplying accident and medical suits.
5. Exclusion from Supreme Court jurisdiction and review variant local measures, e.g. pornography (which when I studied Con Law we were told the Founders intended to be covered by Articles IX and X). Perhaps we should merely reenact Articles IX and X in there present language to send a message to the Court that at least the people still read these provisions with there original intent.
6. A requirement that funds raised for a specific purpose be spent only for that purpose -- to discourage funding new programs out of other funds, e.g. spending Social Security money on the overall budget deficit.
7. A ban on Congress subjecting States or Local Governments to expenditures unless funding for such programs is included in the same legislation.
8. Finally, providing that former Presidents should become ex-officio Senators for life -- rather like the creation of former British Prime Ministers Life Lords, so the nation can benefit from their experience. More controversial might be a proposal that former Secretaries of State and of Defense serve as ex-officio Senators for the term following their replacement. I think this proposal would make the Senate slightly less political and increase its national interest perspective slightly. I'd also like to see the Constitution amended to make it possible for the President to name Senators (or Congressmen) to serve as members of his Cabinet. This should be fully possible with an experienced Deputy Secretary handling day to day matters, and should enormously improve relations between the Executive and Legislative branches, reducing the chance of legislative gridlock.
On the welfare side, I support Congressman Gingrich's notion of re-inventing orphanages. These need not be the Oliver Twist monstrosities of the past. And they would get children out of the disfunctional ghetto homes in which so many of them live, only to absorb the dependency/crime/ drug culture which surrounds them. Fitted out with computer-aided learning devices and a resident social worker, seems to me these are perhaps the only solution to one of our major central-city problems. And without the child in the home to draw welfare benefits for the unwed mother, perhaps there'd be less incentive to create children unwanted other than for the federal money they provide. The old workhouse also had some merits. No one wanted to go there, but no one starved on the streets either. I enclose a paper suggesting harnessing private enterprise to create low-tech (I call 'em "sump industry") jobs to tide people over during periods in which they can't find regular employment -- giving content to the notion of "workfare". No one could draw welfare benefits without contributing something to the economy (and setting a work-ethic example to their kids), but neither would anyone want to continue in such employment whenever they could find an alternative.
Understand you'll be looking at various forms of consumption taxes. It's not that people are against all forms of taxes. It's just that our current income taxes are so unfare. The capital gains tax is a major disincentive to elderly people (or their heirs) who want to sell a business, but don't want to turn a major share of their lifetime gains over to government to dribble away subsidizing illegitimacy and central city crime. Not only would most of us support a VAT to replace a major share of the graduated income tax, but I personally would go for a Stamp Tax to replace another big chunk. (See enclosed paper called Economic Ideas for the Bureau of the Budget ). Maybe we could even afford a fifteen or twenty per cent "flat tax" as some are pushing -- supplemented by a twelve per cent VAT (to be split with the states) and a 2 or 3 per cent stamp tax on checks and legal documents such as wills, deeds, and trusts. Also have you people look at the proposal to charge foreigners a fee for the use of the Interstate Highways as the Swiss do.
I'm writing just to make sure that you and your staff will not have overlooked any of these additional items which for one reason or another I'm convinced will be needed, beyond term limitation, a line item veto, and a balanced budget amendment to make our government workable during our third century.
Sincerely,
D. B. Timmins, PhD (Harvard)
Professor of Government
1. Provisions Which Might be Included in an Up-dated Constitution for Our Third Century
2. Some Ideas for Consideration With Respect to Reducing the Trade & Budget Deficits
3. Ideas to Diminish Illegal Immigration
4. The Notion of Subsidizing "Sump Industries" as a Substitute for the Welfare Dole
AmEmbassy - Bucharest
APO AE 09213-1315
and
Governors Plaza
560 East South Temple
Salt Lake City, UT 84102
May 23, 1995
The Honorable Edith Green Waldholtz
United States Congress
House Office Building
Washington, D.C. 20510
Dear Representative Waldholtz:
Didn't write right after the election, waiting to see how seriously I could take your campaign promises. Seeing you try to turn back a third of your salary and pay for your own medical insurance (though, owing to Congressional bureaucracy without success), and trusting your promise to be a temporary public servant instead of considering your election to be the start of a permanent career, I've decided to try to enlist you in a project I've had for many years.
I studied first studied government under Homer Durham at the University of Utah just to fill an undergraduate course requirement. Professor Durham made the subject so interesting, I changed my major, went on to Harvard for a PhD, and spent the next 38 years in the U.S. Foreign Service, before retiring to teach the subject at university level.
Became convinced some years ago that our grand old Constitution needed some updating as we approach the nation's third century. I realize this isn't a popular notion, many people believing a new Constitutional Convention would open the door to all sorts of mischief. But I truly believe the Founding Fathers were operating under the inspiration of heaven, and if they put a provision in the Document providing for amendment by convention, I believe this too was inspired. Indeed, the Fathers seemed to have had more confidence in the wisdom of their descendants than at times we have in ourselves. Anyway, when I observed Ross Perot intervening in the 1992 campaign in a way sure to throw the election to Mr. Clinton, I wrote in some desperation to try to persuade him to put his time, money, and undeniable talents into bringing to pass a new Convention to up-date the Constitution. Of course his ego got in the way and he succeeded in giving us the first minority President since Woodrow Wilson.
I'm hoping that someone as genuinely devoted to constitutional (and restrained) government as you are demonstrating yourself to be, the first freshman in 80 years to be named to the Ways and Means Committee, might be willing to take on the task of (a) trying yourself to enlist Mr. Perot in this effort (before he makes a fool of himself, upsetting the next election by running again), or (b) see what you might be able to do with idea yourself. The Balanced Budget amendment -- which I'm sure you'll agree now appears more essential than ever as Mr. Clinton threatens to veto the first serious balanced budget proposal in forty years -- and with the vote on the amendment itself having failed by one vote when it came to the floor in the Senate. And the Court has just ruled against states' rights to limit terms (an approach I'd have preferred, since it left flexibility in this decision to the voters of individual states) -- so it looks like we'll have to have a "one size fits all" amendment on that, too.
I congratulate you and the Republican Congress for having made your first item of business to subject Congress to the same civil rights and other laws imposed on the rest of the country, as well as reducing substantially the size of the Congressional bureaucracy. But having done this by legislation, I rest uneasy that a future liberal Congress might just as easily go back to the bad old ways.
I therefore enclose a paper written for presentation to the recently held Social Sciences Section of the Utah Academy of Arts, Letters, and Sciences in Logan, which includes a number of other amendments which the several academic colleagues I've consulted on this agree should be considered by a new Convention. Although the piece was written well before the current O.J. Simpson trial, the O.J. trial has amply underlined the notion for limiting pre-trial publicity in criminal cases -- as in most other advanced countries. Further, and because it's been seldom used in the past,possibly running into a res stare decisis problem, any attempt to limit Supreme Court jurisdiction (under Bill of Rights Articles IX and X) regarding variant local measures related to social issues not specifically delegated to the Federal Government (though it's been discussed, and would otherwise be the simpler solution) is likely to be overturned by the present, or some future, Court. This, too, it would thus appear must be resolved by Amendment (see numbered paragraph 7 of enclosure), though there has been slight progress by the Court's recent overturning the "guns within 200 yards of schools" legislation, which reversed almost 60 years of upholding virtually any Federal intrusion, based on a heretofore infinitely flexible interpretation of the Commerce Clause, in areas which any reasonable reading of the Constitution would have held to be local matters.
I would go further, specifically reenacting by amendment Articles IX and X as an unmistakable signal to both the Executive and Judicial branches that the People mean it when they tell the Federal Government to keep its nose out of matters not specifically delegated to it.
Having spent a great part of my life in the U.K., and seeing how the British Cabinet system closes the distance between the Executive and the Legislative branches, without confounding the two, I think my suggestion for an amendment permitting acting members of the House and Senate to serve in the Cabinet should receive careful consideration (see paragraph 14). Similarly, having observed how the Brits reward former Prime Ministers (and others) with titles, assimilating them into the House of Lords to retain their wisdom and experience, I am rather attached to the notion spelled out in numbered paragraph 15 to include an amendment making former Presidents (and perhaps former Secretaries of State and of Defense) Senators for a succeeding term -- or for life. You may not like the notion. But it would diminish the political rigidity of the Senate (and, at least at present, would strengthen the Republican majority).
I'm also quite persuaded that as an essential part of getting our borders under control we must enact an amendment altering the manner of acquiring citizenship within our borders, to parallel the rules we impose on U.S. citizens to pass on citizenship to their children born abroad. See numbered paragraph 9.
Contrary to some, I considered the Contract with the America not only to have been clever politics, but just what we Americans of all political persuasions were waiting for. Of course Party Platforms were historically supposed to represent just such pre-electoral promises. But platforms have been devalued over the years -- as with President Bush's "read my lips" message -- and people no longer believe them. Seems to me the GOP Members of Congress struck on something useful: half way between the formal contract of the Constitution and ephemeral campaign promises. It it was rewarding to see how it resounded with the people at election time. I think you read the mood of the American people correctly. We're fed up with Washington politicians disregarding the things we ordinary citizens hold important. And I agree that at least some of these reforms must be added to our fundamental contract, the Constitution, if we are to have any hope of working our way out of our fiscal, moral, and social problems. Indeed, as you will see, I believe that while we're at it, we should adopt a couple more fundamental Constitutional changes which will be essential if the US Government, as we've traditionally known it, is to endure into our third century of nationhood.
Since you're on the Ways and Means Committee and will be looking closely at various budget measures, I'm enclosing a second paper (written way back in Bush days, hoping to direct his attention to some finance and domestic welfare matters it appeared to me he was losing the election over). I think all these ideas are still worth considering, and while I realize you'll be too busy with other matters to read them all yourself, even with reduced staff, you should have someone around to eyeball them and put them in the hands of your Committee staff. I'm taken myself with the notion for variable Social Security payments to those permanently living abroad. Most are not American citizens, and of those who are, few vote. So there'd be much less brouhaha about restricting such payments than in the United States itself. And, as I say in the paper Ideas with Respect to Reducing the Trade and Budgetary Deficits under Progam Modifications, it'd at least induce some to come home, easing the balance of payments end of things. I also direct your attention to the concept of enacting a Regulator provision (same paper, same section) giving the U.S. President authority to raise, or lower excise taxes on a pre-approved list of items to fine tune the economy, offsetting some of the Fed's independence. Most importantly, as we seem to be getting closer and closer to introducing a redesigned currency (and dollar coin), I aks you to look most seriously at the New Concepts section of the Ec Ideas
paper under the heading A New U.S. Dollar. While this was written half a dozen years ago while I was teaching at the American College in Paris, it would be a tragedy to miss the once in a century opportunity to revalue the dollar at the same time we introduce a redesigned currency. Most informed observers agree that inflation is again breaking out. And an up-valued, "heavy" dollar would be the best way to contain this, while restoring the prestige of the dollar against the mark and the yen, underpinning the authority of the dollar as the dominant trade (and finance) currency well into the next century.
On the welfare side, I support Congressman Gingrich's notion of re-inventing orphanages. These need not be the Oliver Twist monstrosities of the past. And they would get children out of the disfunctional ghetto homes in which so many of them live, only to absorb the dependency/crime/ drug culture which surrounds them. Fitted out with computer-aided learning devices and a resident social worker, seems to me these are perhaps the only solution to one of our major central-city problems. And without the child in the home to draw welfare benefits for the unwed mother, perhaps there'd be less incentive to create children unwanted other than for the federal money they provide. The old workhouse also had some merits. No one wanted to go there, but no one starved on the streets either. I enclose a paper suggesting harnessing private enterprise to create low-tech (I call 'em "sump industry") jobs to tide people over during periods in which they can't find regular employment -- giving content to the notion of "workfare". No one could draw welfare benefits without contributing something to the economy (and setting a work-ethic example to their kids), but neither would anyone want to continue in such employment whenever they could find an alternative.
It appears more and more likely that Congress will be looking at various forms of consumption taxes. It's not that people are against all forms of taxes. It's just that our current income taxes are so unfare. The capital gains tax is a major disincentive to elderly people (or their heirs) who want to sell a business, but don't want to turn a major share of their lifetime gains over to government to dribble away subsidizing illegitimacy and central city crime. Not only would most of us support a VAT to replace a major share of the graduated income tax, but I personally would go for a Stamp Tax to replace another big chunk. (Again see enclosed Ec Ideas paper). Maybe we could even afford a fifteen or twenty per cent "flat tax" as some are pushing -- supplemented by a twelve per cent VAT (to be split with the states) and a 2 or 3 per cent stamp tax on checks and legal documents such as wills, deeds, and trusts. Also have you people look at the proposal to charge foreigners a fee for the use of the Interstate Highways as the Swiss do.
Sincerely,
D. B. Timmins, PhD (Harvard)
Foreign Service Officer (ret.)
Professor of Government
Enc: Thoughts for Constitutional Reform for a New Century
Some Ideas with Respect to Reducing the Trade and Budgetary Deficits
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