Knowing What to Ask About Reforms, 
Level Two


The Constitution's text is densely written. It has to be analyzed before it can be interpreted.


Some principles of textual analysis
 

  • An initial textual review determines what text is likely to be relevant to a question. Logical analysis then determines what this text must express and imply. This includes semantic analysis: some words & phrases change in meaning over time; their meaning when ratified is used. 
  • Then initial interpretation will apply the text to the question, deciding what text is actually relevant & how. More rounds of review & analysis may be needed during interpretation.
  • The Constitution is read holistically: clauses can't be taken out of context. (When you quote a clause you're technically repeating the entire Constitution but highlighting that clause.) One mistake even judges sometimes make is to isolate clauses and apply them as if no other clauses matter. And a form of corruption called legal pragmatism uses tactics such as deliberately only considering one constitutional clause. The text must be taken as a whole, considering how all clauses relate to a topic and the question at hand, and how they affect each other.
  • The starting point is what is expressed in the text. The strongest arguments or opinions will be those that rely on expressed text. Arguments from implications will build out from there after any argument from expressed text has been made. 
  • If a right, power, privilege or immunity is reserved to the states or the people under Article IV, Section 2 or Amendment XIV, Section 1, or if it's a natural (based on Enlightenment philosophy) right or power protected by Amendments IX and X, it's constitutional even if no clause or clauses expresses or implies it.


If none of the above apply, the solution you are considering (or the law you are reviewing) is unconstitutional.

When something that isn't expressed may or may not be implied, reserved or protected, there's room for interpretation. The line between textual analysis and interpretation can be a fine one. How judges see the bill will vary.


  • If something is expressed in a clause it's expressed. It need not be argued.
  • If something must be extrapolated entirely from something expressed in one clause it's included in what that clause expresses, so it's expressed. It can be determined by logic alone (logical analysis) & need not be argued. 
  • If you'd have to combine two or more clauses to extrapolate it from the combination but it must be extrapolated when they are combined, it must be inferred (or deduced) from the relevant expressed text, so it's still expressed. It can be determined by logic & need not be argued.
  • If it should reasonably be extrapolated from one or more clauses, and can be inferred, but they could be logically read, and even combined, without extrapolating it, it's implied. An implication is an interpretation: it can't be determined by pure logic & must be argued at least once. Caselaw can accept an implication that a previous bench of the Court has accepted as successfully argued, but it can be reargued if new evidence or a new argument against it is discovered: an accepted implication can be overturned. 


Some principles of interpretation for judicial review:

  • Stare decisis, following precedent, comes first. The bill must follow the analyses and interpretations of courts with jurisdiction. Even if you interpret the text differently, courts have to follow relevant precedent. Are there exceptions? Unfortunately, lots. OVer the quarter of a millenium our system has been developing it has been under perennial attack. Many decisions must still be ruled "noncanonical", or contrary to the Constitution. But we have entered anera of restoration. The more we solidly straighten out now, the more future generations will benefit.  
  • If the bill is meant to challenge a precedent under the public's right of grievance the Supreme Court will consider the new interpretation (see Restoring Invalidly Amended Text). If a precedent doesn't uphold the text it must be disregarded, which can mean overturning the decision. 
  • Relevant natural law must also be followed. These principles are the foundation of the Constitution, the Declaration of Independence, and all law in the United States whether federal, state or local. Thomas Paine and Montesquieu are the authors most directly responsible for the Constitution's interpretation of natural law. Even a Constitutional clause can turn out to be "wrong" and require amendment if natural law is disregarded. For example, Amendment XIII by abolishing slavery restored the natural rights of enslaved people to the Constitution. 
  • Schools of interpretation include originalism, living Constitution (current & probable future majority preference), tradition, pragmatism & judicial restraint. Look these up & try viewing the bill from each perspective. One judge may uphold a bill another may strike down.


If a federal law complies with the Constitution, it's enforceable once any conflict with other federal laws & treaties is resolved. 
A state or local law also has to be checked against your state constitution and state & local law.  



Does our proposed amendment have any fatal flaws?


"Great and Extraordinary Occasions," written by The Constitution Project in 2012, contains a list of questions to ask regarding potential amendments. It's become a classic, at www.constitutionproject.org/wp-content/uploads/2012/09/32.pdf (see For the Press for full citation).


This box reproduces their questions. The second box responds to them. The responses are not intended to reflect the opinions of the questions' authors or of The Constitution Project. 


1. Does the proposed amendment address matters that are of more than immediate concern and that are likely to be recognized as of abiding interest by subsequent generations?


2. Does the proposed amendment make our system more politically responsive or protect individual rights?


3. Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means?


4. Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact?


5. Does the proposed amendment embody enforceable and not purely aspirational standards? 

  

6. Have proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles?


7. Has there been full and fair debate on the merits of the proposed amendment?


8. Has Congress provided for a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable?


The authors' concern is approaching amendment with appropriate restraint. They emphasize that the Constitution binds future generations whose concerns may be different than ours. Overall stated goals include:

  • avoiding trivializing the Constitution 
  • avoiding lightly reopening its stated basic questions of governance  
  • preserving the Constitution's pluralism, avoiding politicizing it  
  • avoiding using amendment to do what can be done by statute


Responses:


1. The public's role in the political process has eroded over several generations, at least since 1905 (see Restoring the Preamble; Frozen Apportionment; Leashing the Gerrymander). It won't self-correct, so future generations will have the same or worse problems with eroded functions until it's corrected.

2. Every section increases the system’s political responsiveness.


Section 1 ends the practice of private financing to curb private influence on electoral outcomes and improve campaign ethics, while saving the public money (see Why Pay for Campaigns? You Already Do, Sole Public Funding Enforces Campaign Ethics, Effective Public Campaign Finance).


Section 2 improves the functioning of the electoral process by requiring fair contest and impartial conduct (see Making Elections Work, Resolving the Incumbency Advantage,) and keeps electoral function accountable to the public (see Accountability andthe Public Elections Clause, Preventing Voter Fraud).


Section 3 improves the reapportionment and redistricting processes (see The Article’s Floor and a Sensible Ceiling, Redistricting Without Gerrymandering).


Section 4 preserves continuity of Congress (see Continuity of Government).

 

Section 5 restricts lobbying and penalizes political fraud, coercion, and bribery (see Disarming Corruption), keeps honesty in politics (see The Truth and Accuracy Clause), and safeguards the Article V Amendment process (see Restoring Invalidly Amended Text), which may also avoid the need for more term limits (see Petition vs Attrition).


Every section protects individual rights.


Section 1 assures the people's consent to our government (see Preserving Consent in a Democracy) without violating other rights (see Protecting Freedom of Speech).


Section 2 enforces all voting rights (see Mandatory Voting vs Enforcing Voting Rights, The Voting Abstention Clause, No Penalty or Force, Ballot Initiatives) and assures adult Americans the right to vote (see Ending the Last Voting Denial).


Section 3 ends frozen apportionment and defines districting factors for better representation (see Pop Quiz, Redistricting for Balanced Access) and safeguards access to government (see Balancing the Legislative Agenda).


Section 4 keeps emergencies from cutting the public out of governance (see The Role of the Electorate in Emergencies).


Section 5 restores the full Preamble to protect the public's rights in the political process (see Legal Fantasies and Nightmares, The Most Important Clause in American Law), and protects other individual rights (see More Uses for Truth and Accuracy, Enforcement and the Rights of Government Officers).

3. Yes. Attempts to correct this problem over the last century tend to make it worse (see An Invalid Amendment by Statute, Sole Public Funding Safeguards Electoral Outcomes, Voting Safeguards in History, What This Amendment Is...and Isn't, Tomorrow's Issues in Political Process, Valid Amendment).


Caselaw creates insurmountable obstacles to any non-Article V solution (see Restoring the Preamble, The Most Important Clause in American Law). More extreme proposed solutions have included term-limiting the Supreme Court for a faster response!

4. See each section for the ways each is designed to consist with existing doctrine (Public Campaign Funding, Elections, Balanced Representation, Covering Congress in Emergencies, and Enforcement). However, doctrines that have developed by caselaw drift from invalidating the Preamble (Section 5) and the Apportionment clause (Section 3) are corrected by this amendment.

5. Inadequate enforcement is part of the problem with political process reform. Section 5 adds enforcement provisions, and every section strengthens the public’s ability to use the political process, our best enforcement tool.

6. Yes. Each section of the proposal discusses that section’s relationship to related clauses, and potential consequences. It’s not an exhaustive discussion as the amendment consists with all clauses except the amended ones, but no foreseeable difficulty is omitted. You’ll find a list of the Constitutional sections discussed at the end of each section.

Because the Preamble is the heart of the Constitution every page could be said to discuss it. Section 5’s pages on The Most Important Clause in American Law are about the Preamble itself.

 
Sections 1, 3 and 5 don’t amend any text.

Section 2 amends one clause in Article XIV, section 2 (Rebellion and Other Crimes clause). Section 4 amends one clause in Article I, section 2 (Vacancies clause) and one in  Amendment XVII (Senate Vacancies clause).


7. A preliminary version of this amendment was e-mailed to Congress, to other government officers, and to 7,000 Americans. It was then withdrawn for correction. This proposal website and its Facebook page are intended to stimulate public discussion. And by requiring an up-or-down vote in Congress it avoids inadequate debate on changes that can happen as bills are marked up. The public will know what they supported in the first place is what is being debated and voted on in Congress and at ratification.

8. A two-year nonextendable ratification deadline is part of the resolution.


Reduction of the public's ability to self-govern is anything but trivial. Elected officers must be dependent only on the electorate, and the electorate must be able to enforce this. As this is one of the Constitution's stated basic requirements of governance, reform doesn’t reopen the question but reinforces our original answer.

This amendment is politically neutral. It avoids political issues, dealing exclusively with process. The need to reform these long-troubled processes is seldom disputed. Ideas vary most about the best method of campaign finance reform but more Americans agree that it needs reform than have agreed on anything in decades.

The difference between a detailed statute and a detailed amendment is the detail's purpose and function. Some Constitutional clauses are as specific as statutes: one clause states not just the date Congress must open each year’s sessions, but the time (January 3rd, at noon). The details here prevent vagueness in fundamental principles that more general wording would risk.

They’ll maintain the relationships among clauses and the stability of their functions over generations when the temptation to distort them may be large and the consequences of distortion would be grave (see Percentage of GDP, Protecting Freedom of Speech, Leashing the Gerrymanderand others).​