Thursday, August 05, 2021

New York Times: August 5



It’s been 50 years* since America’s last real update to its Constitution. We asked seven writers and legal scholars what they think needs amending next.

  • All workers shall have the right to form and join labor unions.
  • Neither slavery nor involuntary servitude or any place subject to their jurisdiction.
  • The word ‘person’ shall apply to all human life — born or unborn.
  • International law shall be part of American law. .......... While the United States today is a far cry from Nazi Germany, it has nonetheless proved itself to be a threat to world peace, blatantly and regularly violating international rules or letting its lawyers twist limits on war into licenses to strike. ........ An amendment to our Constitution modeled on Germany’s could be a start for America’s atonement, by counseling prudence and placing constraints so the country cannot launch disastrous wars of choice as easily or send drones or special forces practically anywhere for deadly missions. It could also offer protections to Americans as well: While the parents of young Black men killed by police have traveled to speak before the United Nations in Geneva to decry violations of international standards on the streets of our cities, no legal appeal to those standards is possible in our courts. ............ forcing Americans to take seriously what others think global morality and rules demand would invigorate our discussion — and litigation — about how to exercise power elsewhere and treat one another at home.
  • The right of the people to have privacy and be secure against searches and seizures of their persons, houses, papers and effects, including their data and metadata........... Today, our most important documents and communications are not typically transmitted by the public postal service or held by us in our homes but are handled by companies like AT&T, Google, Facebook and Slack. These companies also hold our metadata — including not only whom we talk to but also where we are and what we watch and read — which, alone or in aggregation, can reveal information as sensitive as the content of the messages themselves. Police officers no longer need to search our homes and documents one by one; they can go straight to those companies, generally getting content with a warrant but also often doing dragnet digital searches through metadata without a warrant. ......

    A few tweaks could do a lot to retrofit the Fourth Amendment for our times — and for many years to come.

  • The Supreme Court shall be expanded and its powers limited.
  • No state or city shall restrict people’s movement.......... state and local laws clearly make it harder for people to move toward opportunity. Zoning regulations limit housing construction in many wealthy cities and regions, raising housing costs and limiting in-migration for those who don’t already have high salaries to take advantage of those strong economies. Land use regulations in the most productive regions have reduced economic output by 36 percent between 1964 and 2009. Occupational licensing regulations cover 25 percent of workers and limit the ability of people to move between states because their licenses do not travel....... Such an amendment could be used to invalidate unreasonable land use regulations — such as excessive minimum lot size rules and unjustified density limits — and labor regulations that discriminate in their effects against out-of-state workers.


Thomas Jefferson Gave the Constitution 19 Years. Look Where We Are Now. The 26th Amendment to the Constitution took effect 50 years ago this summer, extending the right to vote to all Americans age 18 and older. It was the fourth amendment in the span of a decade, three of which expanded voting rights — a burst of democratic reform nearly unequaled in the nation’s history. ......... based on the country’s increasingly polarized politics, it is likely to remain the last for anyone alive today ........ “We have an amendment process that’s the hardest in the world to enact,” said Aziz Rana, a professor of constitutional law at Cornell University. “That’s the reason why it’s basically a dead letter to enact constitutional amendments. You have to have rolling supermajorities across the country to do so.” Out of almost 12,000 amendments proposed since the founding, only 27 have been adopted. ........

This paltry record would have surprised the nation’s founders, who knew the Constitution they had created was imperfect and who assumed that future generations would fix their mistakes and regularly adapt the document to changing times.

........... Thomas Jefferson went further,

proposing that the nation adopt an entirely new charter every two decades

. A constitution “naturally expires at the end of 19 years,” he wrote to James Madison in 1789. “If it be enforced longer, it is an act of force, and not of right.” .......... the 1860s, when the post-Civil War amendments banned slavery, made Black people citizens and prohibited racial discrimination in voting; the 1910s, when amendments established a federal income tax, a direct vote for senators and the enfranchisement of women; and the 1960s, when the civil rights movement led to democratic reforms like abolishing the poll tax, giving presidential electors to Washington, D.C., and allowing 18-year-olds to vote. ......... The 26th Amendment was cooked with two ingredients common to several others: a controversial Supreme Court ruling and a war. ........... the slogan “old enough to fight, old enough to vote” — eight words of moral clarity that became impossible to disagree with. ....... Mr. Bayh had been at the forefront of efforts to expand the franchise throughout the 1960s and had spent the previous four years pushing for what he hoped would be the original 26th Amendment — abolishing the Electoral College in favor of a national popular vote. ....... (There was a brief delay when Senator Ted Kennedy tried and failed to tack on a provision granting statehood to Washington, D.C.) ......... In just over three months, the required 38 states had signed on — the fastest ratification of a constitutional amendment in history. ........ Had the 26th Amendment not passed when it did, there’s no way the Republican Party would permit it now. It has seen the polls showing that young voters are overwhelmingly hostile to the party. .........

The country passed the 13th, 14th and 15th Amendments in the aftermath of the Civil War — a time when Americans were as divided as they could be.

But those amendments “were ratified at the barrel of a gun,” Mr. Levinson said. Any former Confederate state that wanted to be readmitted to the Union was first required to accept the 14th Amendment, granting citizenship to Black people and extending the equal protection of the laws to Americans everywhere. It worked, but it’s hardly an ideal path to constitutional reform. ............ The 27th Amendment, which bars Congress from raising its own pay until after the next election, was originally drafted by James Madison and passed by Congress in 1789, along with the Bill of Rights. It failed to win ratification in enough states and was forgotten for nearly 200 years ......... partisans on both sides treat their favored justices like superheroes. “The veneration of justices is a sign of a dysfunctional political system, whether Ruth Bader Ginsburg or Antonin Scalia,” Mr. Rana said. “A healthier system would be one in which you didn’t know who was on the court, because it wasn’t the only vehicle for constitutional change.” ................ There is one other avenue for reform laid out in Article V of the Constitution:

a new convention, which can be triggered by the agreement of two-thirds of the states and which allows a direct vote on amendments, without needing to go through Congress.

Many attempts to open a new convention have been made; none has yet succeeded, although Republican-led states have come close in recent years. ................ “Imagining a convention would inevitably generate a national conversation about all sorts of topics, as against the present reality where no one, at least in the political class or elite punditry, really broaches the possibility of constitutional reform at all.” ..................

if the Constitution can’t be changed to adapt to modern needs and the Supreme Court becomes both too powerful and too politicized, the political system starts breaking down.

.......... American government is entering

a state of institutional paralysis

, failing to address a number of enormous social problems, including the coronavirus pandemic, racial and economic inequality, the fallout of overseas wars and the continuing aftereffects of the housing crisis. ......... In a functioning system, political leaders would listen to the views of the majority and transform those views into effective policies. ..........

“The United States is effectively a great empire. And a common story about how great empires decline is that the institutions are not able to address the basic social problems the society faces.”

.......... “There may be a way to get there without 700,000 people dying, but there will not be a way to get there without violence,” she said. “The violence is already happening. Jan. 6 was a manifestation of the political dispute in our country right now, much like the country in 1859. The question is, how many people have to die before we decide who America will be in the next generation and next century?” ......... “This is going to sound so pie in the sky, but you have to vote them out,” she said. “That’s the only thing politicians respond to, of either party. That’s the one universal truth of our system.”

America Needs to Break Up Its Biggest States since the addition of Alaska and Hawaii in 1959, America hasn’t increased the number of states, and unless some future president winds up buying Greenland, the United States is unlikely to expand territorially. Nonetheless it continues to expand — demographically.

Since 1960, the country has added over 150 million people through a combination of immigration and natural population increase. Yet we haven’t upped our state count.

.......... on its own, Los Angeles County would be the 10th-largest state in the union. The four largest states by population now make up roughly one-third of the population of the entire United States — more than the smallest 34 put together. ......... Those four largest states have only eight senators, while the 34 smallest states have a supermajority of 68. ...... per the terms of Article IV, creating states from a state that already exists would merely require the state legislature to vote to split up and for Congress to assent. ......... California could even plausibly be broken into as many as five states, if the Bay Area and Los Angeles were hived off to become city-states, which they are certainly populous enough to be. ......... it could be powerfully symbolic if, for example, members of the Seneca, Oneida, Mohawk and other nations of the old Iroquois Confederacy played a central public role in defining a state covering their old territory.



The known global virus caseload has surpassed 200 million infections. a daunting figure that also fails to capture how deeply the virus has embedded itself within humanity. ....... The global toll as of Wednesday was 4.2 million ........ the emergence of the Delta variant — thought to be twice as infectious as the initial form of the virus — is adding fuel to a fire that has never stopped raging ........ governments have faced increasingly angry protests while enforcing lockdowns on weary populations and struggling businesses ....... Over the last six months — as the world raced to 200 million cases in half the time it took to reach 100 million — the calculus for measuring the danger of the moment has become more nuanced. ..........

In the United States, with about 93 million people eligible for shots who have chosen not to get them

, experts say that a rise in cases this winter is inevitable. ............... hundreds of millions of cases are now an inescapable part of our world of seven billion people .......... “We have to understand that

this virus is now endemic

,” said Robert West, a professor emeritus of health psychology at University College London, “and that we have to be thinking about our long-term strategies for dealing with it as a global phenomenon.”.

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