Eric the Blue

Since writing this, I by chance saw the above episode of Firing Line, in which the legal scholar Melissa Murray, though without mentioning what Tennessee’s state legislature did to the people of Memphis, says pretty much what I said about the Supreme Court’s decision in the case called Callais. There’s at least two of us!

I thought the last part of the interview, concerning the difficulty of amending the Constitution, was even more interesting. Twenty-seven amendments might sound like a goodly number, but, as Murray points out, ten of them (the Bill of Rights) were adopted in 1791, leaving just 17 more to be enacted over the last 235 years. She might have added that one of those 17 was Prohibition, which was subsequently rescinded by another amendment, with the result that, discounting contretemps over whether an American can have a drink, there have been 15 amendments in 235 years, including just one in the last 55.

For those of worshipful inclinations, that’s just fine: you don’t edit the Ten Commandments or the U.S. Constitution, as the former came from God and the latter from guys whose portraits are on our money. Yet the Constitution allows for itself to be amended, has been amended, and, when you consider the contents of some of those amendments–I mentioned Prohibition (and its repeal)–you feel as if possibly even weightier matters have been overlooked. It comes up in the interview that Murray participated in an exercise whereby scholars from different segments of the ideological spectrum convened to try to come up with some needed amendments. I take it that there was at least majority support for

• amending the Constitution to make it easier to amend the Constitution
• making it harder for the House to adopt articles of impeachment but
• in the event said articles get adopted, lowering the bar for conviction in the Senate
• resurrecting the legislative veto
• scrapping the requirement that the president be a natural born citizen
• instituting term limits (18 years) for Supreme Court justices
• abolishing the electoral college and providing for direct popular election of the president

I’d be happy with all those. The most obvious missing item, in my view, is reform of the Senate. That every state gets two senators has resulted in grotesque imbalances in representation that the founders could not have foreseen and would not have condoned. The combined populations of Idaho, Montana, Wyoming, North Dakota, South Dakota, and Nebraska come to about 7.5 million people. The population of Los Angeles County, in California, is about 9.7 million. So 7.5 million people are represented by 12 senators, while 9.7 million of their fellow citizens share two senators with 30 million other Californians. I said the founders could not have foreseen such an arrangement and wouldn’t have approved, which I think is true–mainly because some of them, preeminently Alexander Hamilton, did not approve of the much milder imbalances that obtained in the founding era. See, for example, Federalist No. 22, where Hamilton wrote:

Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail . . . .

The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best way of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays, continual negotiation and intrigue, contemptible compromises of the public good.

A dozen more such passages, on a handful of other topics, from a few additional representatives of the founding generation, and I’d consider withdrawing my skepticism of their supposed omniscience.