Amendment by the legislature is inappropriate

A … government … cannot have the right of altering itself. If it had, it would be arbitrary. It might make itself what it pleased and wherever such a right is set up, it shows there is no constitution.

—Thomas Paine. The Rights of Man, 1791.

The constitution should not be alterable by the legislature itself, otherwise the legislature becomes judge in its own cause. This was the case during World War II, when the British House of Commons, like the Long Parliament before it, decided the ‘crisis’ entitled it to suspend all general elections. The purpose of a constitution is to restrict what politicians can do. It follows that legislators with the power to amend the constitution have a conflict of interest.

The authority of a constitution derives from the opening words, “We the People.” Once individual sovereignty is recognized, it follows that collectively man has the right to self-government. It follows that the right to alter the constitution belongs only and always with the people.

Consideration of amendments should be regular

Let us provide in our constitution for its revision at stated periods.

—Thomas Jefferson. Letter to Samuel Kerchival, Monticello, July 12, 1816.

One of the greatest advances in the science of government was the requirement for elections at set intervals to flush out corrupt or wayward politicians and replace them with untainted ones. Equally serviceable is Thomas Jefferson’s proposal that the constitution be regularly revised. Without this there is no remedy for the gradual accumulation of both judicial usurpation and over-government.

Each generation is sovereign, but the wisdom of the ages should not be lost

Can one generation bind another, and all others, in succession forever? I think not. The Creator has made the Earth for the living, not the dead. Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will. The dead are not even things … A generation may bind itself as long as its majority continues in life; when that has disappeared, another majority is in place, holds all the rights and powers their predecessors once held, and may change their laws and institutions to suit themselves.

—Thomas Jefferson. Letter to Major John Cartwright, Monticello, June 5, 1824.

Each generation has unlimited power over itself, but none to bind succeeding generations. Accordingly, constitutional amendments should be provisionally adopted by one generation but require ratification by subsequent generations before becoming permanent.

A model procedure

A model procedure that satisfies the above criteria is as follows:

  1. If no constitutional convention has been held in ten years, or
  2. If constitutional conventions are called for by:
    a. The legislatures and/or initiatives passed in one-quarter of the states; or
    b. The federal legislature.

  3. Then each state will hold elections to choose delegates for separate conventions to be held in each state.
  4. Each state convention will then debate the need for and form of proposed amendments.
  5. If any state convention has agreed by simple majority to sponsor a particular amendment, it will then circulate the amendment to all the other state conventions.
  6. Each state convention will then consider and vote on the proposed amendments put forward by the other state conventions.
  7. If any proposal is accepted by a fifth of the delegates to a fifth of the conventions, then the proposed amendment shall be referred to the people to adjudge by referendum.
  8. If two-thirds of those voting in two-thirds of states approve the amendment, then the amendment shall become provisionally adopted as part of the Constitution.
  9. The provisionally adopted amendment shall be put to the first constitutional referendum held twenty, then forty, then sixty years after the amendment was first approved. If the amendment is not ratified on all those subsequent occasions by a simple majority in a simple majority of states, it shall automatically lapse.
  10. Provisionally adopted amendments can suspend or repeal provisionary or regular amendments with precedence going to the most recently approved amendment.

This article is an extract from the book ‘Principles of Good Government’ by Matthew Bransgrove