Welcome to Liberrants, a blog dedicated to editorials, discussions, and studies of all things libertarian. Don't let the title mislead you; it's merely my attempt to be creative in describing myself as a "hopeful curmudgeon" who embraces the goal of the free, peaceful, economically vibrant society envisioned by America's founding fathers. Jump in! Contribute! Enjoy!

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Location: Tucson, Arizona, United States

A critically thinking curmudgeon whose goal, in addition to creatively venting about the imperfect world in which we live, is to induce critical thinking in others. The ultimate goal is to help bring about a peaceful world in which we can all live in freedom.

Thursday, December 15, 2005

The Amended Constitution – Article I, Sections 6 and 7

(Part of the continuing series of posts on a hypothetically rewritten/amended Constitution, with emphasis on very limited government and maximum individual liberty.)

Section 6.

Clause 1 - The original text reads:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States [Note: Modified by the Amendment XXVII ratified on May 7, 1992]. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

I’ll get to the 27th Amendment later on in this series, but suffice it to say that it is a mere BandAid™ (an artificial and ineffective one at that) applied to a festering sore. Any libertarian ought to have extreme heartburn over the issue of legislative compensation and the latitude that not only the U.S. Constitution and its various amendments, but even state constitutions give legislators in setting their own terms and amounts of compensation. Unless one is self-employed, which legislators most assuredly are not, no one has the authority to decide their own levels of compensation other than by exercising their natural right to voluntarily terminate their employment and receive richer remuneration in another line of employment. No, this clause should be amended so as to remove any authority for the setting of compensation from the hands of legislators and placing it in the hands of the people directly.

This will undoubtedly prompt the response “But you’re opposed to democratic institutions (that is, the placing of the universal franchise and the referendum in the hands of the citizenry).” This is correct; however, I can think of no surer way to prevent the fox from guarding the henhouse (or the alcoholic from watching over the liquor cabinet, to use what is perhaps a more apt analogy) than to require the approval of the voters to fix levels of compensation for their legislative representatives.

In fact, I’ll propose an even more radical idea: require the individual states foot the bill for their representatives’ service in the federal congress. What would be a greater check on the tendency of congress to vote itself a massive pay raise (or for "poor" states to compel "rich" states to subsidize their legislators and the "pork" to which they help themselves) than to put the payroll in the hands of the constituents at home? As long as the congress can look upon the federal treasury as one vast candy store without a cashier, an institution that everyone and no one owns at the same time, one that doesn’t directly affect the constituency’s collective wallet, their will be no accountability. But if state legislators and the individual voters of a legislator’s district have to pony up for congressman Foultongue’s or senator Bloviator’s paycheck, the shenanigans will be considerably curtailed. As a matter of fact, since these people are only going to be serving in their elected roles as representatives for one calendar quarter of each year, they should be paid for only that period in which they are in active legislative service, enough to cover their living expenses while in the nation’s capitol. Why pay these people as if public service is their entire career?

As for immunity from arrest while congress is in session, I can think of few ideas more abhorrent to a free society than the exemption of certain self-selected classes of people exercising dubious privilege from responsibility for their own actions. More important, what actions can even remotely be considered legitimately criminal in the legal sense of that word outside the definitions of “felony” or “breach of peace?” In other words, if a legislator commits an act of fraud or violence, two types of the most serious categories of crimes calling for punitive or remunerative action, why would the question of exemption from arrest even be raised? Eliminate this clause altogether and make these people behave like the responsible adults we assume them to be in electing them to represent us in public office.

Let’s try this for a rewrite of Clause 1:

“The senators and representatives shall receive a compensation for their services for that portion of the year prescribed by this Constitution in which they actively exercise their duties as legislators. For representatives the amount of said compensation shall be determined by the electorate via referendum to take place within the district that each legislator represents. For senators this compensation shall be determined by a majority vote of both houses of each individual senator's state legislature.

Clause 2 - The original text reads:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

This simply states that senators and representatives shall not hold any other office or draw any compensation from such offices while serving in their capacity as legislators, thus preventing conflict of interest. I have no problems with this as it is currently written.

Section 7.

Clause 1 - The original text reads:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The Founders clearly saw it as imperative that the house of representatives, intended as the direct voice of the people in the legislative process, be the body responsible for the thorny issues of taxation and revenue appropriation. I see no problem with continuing here to allow the senate to “propose or concur with” amendments as on other bills as long as final authority for legislation of revenue and taxation continues to rest with the house.

However, I believe that a provision should be added here that each bill originating in the house pertaining to the raising of revenue must contain a process to ensure that any such revenues raised or taxes imposed are clearly allocated for purposes clearly authorized by the Constitution itself. In other words, incorporate the ideas contained in a bill proposed a few years back by Arizona representative John Shadegg (a bill that, to no one’s surprise, went down in flames --three times-- in the demopublican-dominated congress) that would require each act of congress to cite the specific constitutional clause relied upon to justify or authorize that act; otherwise, the bill dies in committee and cannot go forward.

Here’s how Clause 1 might read:

“All bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills. Each bill pertaining to the raising of revenue or taxes shall cite a specific clause of this Constitution clearly authorizing the raising of such revenue for the purpose proposed by the bill. Otherwise such bills shall neither proceed forward in the legislative process nor shall they be voted upon by the membership of either house.”

Clause 2 - The original text reads:

Every Bill which shall have passed the House of Representatives and the Senate shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournement prevent its Return, in which Case it shall not be a Law.

I believe the biggest issue for potential revision of Clause 2 is that of the line-item veto. I have heard cases made both for and against such a veto from a libertarian viewpoint, but I am inclined to leave this clause as is. To give the president a line-item veto, no matter how well-intentioned we believe that a given president might be in wanting to rescue the nation from some ill-advised act of congress, merely gives power to the executive over matters that clearly belong in the people's hands and that are thus clearly legislative responsibility; namely, control over the nation’s purse strings. While we have seen ample evidence that the congress is, shall we charitably say, less than conscientiously thrifty with the national budget, there is scant evidence that any president in recent history has been any more fiscally responsible than the legislature. Besides, if the congress is bound by the amended Clause One of this article that requires all bills to correlate any appropriations for revenue to a specific constitutional clause, there is no need for a line-item veto. No bill should ever reach the stage where it is ready for presidential signature if this requirement has not been met.

Note that I said should in the last sentence. Because there is more than a slight likelihood that congress will rather frequently be remiss in meeting this requirement, Clause 2 shall contain a provision requiring the president, in his or her role as the nation’s chief defender and enforcer of the Constitution and its provisions, to verify that any bill presented for presidential signature has met the requirement of constitutional authority. Failure to do so shall make the president subject to impeachment (to be subsequently addressed in detail when we discuss Article II revisions).

Finally, on to the subject of adjournment and passage of legislation. Since congress under this amended constitution would have only ninety days each year in which to meet, no legislation shall be left pending at the time of adjournment. Because the possibility exists that legislators will take advantage of the short window remaining at the end of each session to “ram” legislation through by allowing insufficient time for the president to review and concur with or veto a particular bill, no bill shall become law if not signed by the end of the legislative session. Any such bills shall be tabled until the convening of the next new session the following year and must be reintroduced as new bills for the new session.

Clause 3 - The original text reads:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjourment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

I would leave this pretty much as is, with the exception of noting in the parenthetical portion that “adjournment” would merely be a procedural formality for the record in closing the annual session of congress at the mandatory end of its annual ninety-day term (in other words, congress doesn’t have the option to stay in session and continue beyond the ninety-day limit; the adjournment motion merely says “Time’s up! We’re done. We're locking up shop and going home!”).

I also recommend rewording the veto override portion of Clause 3 to read: “…shall be approved by [the president], or being disapproved by him, shall be returned to both houses of congress and which may be repassed if a two-thirds majority of both houses concurs.” I admit that I’m not sure what exactly the framers had in mind when they refer to “the Rules and Limitations prescribed in the Case of a Bill.” However, I would accept that this refers to, among other things, the provision requiring the timeliness of a bill’s submission to committee and its vetting against constitutional provisions.