Odds and Ends

Prof. Buchanan’ initial essay and his response illustrate the problems of translating even broadly shared principles into constitutional language. A discussion of principles, however, is only the first stage of a constitutional dialogue. Specific proposed language is a necessary next step, both to clarify the implication of the principle and to test the support for the specific language.

Prof. Amar’s second response, I suggest, misinterprets the effect of the 17th Amendment. He claims that “… the Amendment has created an important pool of democratically-selected and foreign-policy savvy leaders who are plausible presidential candidates.” Before the amendment, however, the Senate had included such generally recognized leaders as Calhoun, Clay, Seward, and Webster, all of whom later served as Secretary of State and/or as a candidate for president. After the amendment, the only two presidents to be directly elected from the Senate were Harding and Kennedy, both of whom died in office following an undistinguished record. Amar also misdescribes a repeal of the 17th Amendment as a “states’ rights” modification; the primary effect of a repeal of this amendment would be to restore the role of the states in the routine decisions of the federal government. Most of Prof. Amar’s proposed amendments would be to further “democratize” the Constitution, without explaining how this would improve the performance of the government.

I am surprised that none of us mentioned one of the most ambiguous features of the Constitution: the potential conflict between the unenumerated (9th Amendment) rights of individuals and the unenumerated (10th Amendment) powers of the states. Many of the more controversial decisions by the Supreme Court involve taking one or the other side of this conflict. I mention this issue primarily because I have no idea about how to resolve this conflict and would value your suggestions.

Also from this issue

Lead Essay

  • Nobel laureate James M. Buchanan argues that the Constitution should include amendments requiring a balanced budget, forbidding discrimination in outlays, and guaranteeing the natural liberty to exchange within and across our borders. “The ‘regulatory state’ has not worked,” Buchanan writes. “Abandonment of its constitutional legitimacy offers a starting point for constructive dialogue.”

Response Essays

  • Yale Law School professor Akhil Reed Amar says Buchanan’s essay offers a “veritable feast” for thought, but he turns up his nose at the menu, arguing that Buchanan’s amendments are either insufficiently supported by theory and evidence, likely to lead to distasteful consequences, or so indefinite in formulation that it is hard to say whether or not they could be made feasible.

  • Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit maintains that an America that would ratify Buchanan’s proposed amendments would be an America that didn’t need them. They may not be the best ideas even if feasible, he argues. Under the nondiscrimination amendment, Kozinski predicts, “we’d have Bush v. Gore going on 365 days a year, all over the country.”

  • Cato Institute chairman William A. Niskanen agrees with Buchanan about ends, but disagrees about means. Niskanen offers fixes for Buchanan’s amendments and sets forth three tantalizing alternative amendments: have state legislatures — once again — elect U.S. Senators, allow the states to nullify federal law, and allow states to secede.