The Congressional Fairness Amendment

Many have recently seen the viral emails crying out for the “28^th Amendment.”  The claim behind this viral email is that Congress routinely exempts itself from laws that it passes.  The cry is for passage of the following amendment:

“Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and Representatives; and, Congress shall make no law that applies to the Senators and Representatives that does not apply equally to the citizens of the United States “.

There are three problems with the viral email.  First, many of the claims cited (not all) are false or out of date after the passing of the Congressional Accountability Act of 1995.  Secondly, the proposed amendment, which I call “The Congressional Fairness Amendment,” is egalitarian in nature and a republican form of government is not.  Those in power should have tighter controls and restrictions placed upon them than those who are not in power.  The second part of the proposed amendment prevents this.  Third, the proposed Congressional Fairness Amendment, runs counter to an important part of the US Constitution, written by for a good reason our Founding Fathers.  In Article 1, Section 6 we find:

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. 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 understand this to be placed there for a couple of reasons.  First, in order to prevent the legislators from being bullied or threatened by the executive branch, the branch yielding the power of enforcement, the legislators required a degree of immunity.  Otherwise, they could be detained from important votes by arrests over trivial matters.  I would not put it beyond any administration in the past 100 years to resort to such an act if it could turn a vote. Nevertheless, it is important to remember that this use of the section was for Congressional protection, not privilege.  The cries for an amendment to make Congress subject to all laws come from the perception that Congress is taking privilege of this.  For example, until a recent outcry Congress was exempt from insider trading laws allowing Congressmen and Senators to invest based upon information learned through congressional briefings.  This leaves people with a “what else are they doing” feeling.  After all, many Congressmen and Senators have become multi-millionaires after being voted into office.  The elitism is evident to all.

Charles de Montesquieu, a French philosopher who lived from 1689 to 1755, had great influence on the Founding Fathers.  Much of what is written in the US Constitution can be traces back to Montesquieu and John Locke (1632 to 1704).  The founders tried to strike a balance between too little equality between the leaders and the people and too much.  As de Montesquieu wrote,

“The principle of democracy is corrupted not only when the spirit of equality is lost, but also when the spirit of extreme equality is taken up and each one wants to be the equal of those chosen to command.  So the people, finding intolerable even the power they entrust to the others, want to do everything themselves: to deliberate for the senate, to execute for the magistrates and to cast aside all judges.” 

He argued that in both cases, despotism was the result.  Though most understand how too little equality results in tyranny, few understand how too much equality does.  The result is a loss of republicanism for total democracy and eventually anarchy.  Anarchy never returns to liberty; it results in a dictator coming into power.  This has been repeated continuously throughout history.

So to sum it up, where I once use to subscribe to the call for Congressional equality, I am now cool on the idea.  I fear that the current outcries are leading us to the opposite extreme of too much equality being desired in the hearts of the people.  I believe that if a term limit amendment, pay limit amendment, anti-pork amendment and the repealing of the 17^th Amendment are in place, the checks upon Congress will be sufficient to prevent elitism.  If the proposed Constitutional Convention feels that there must be something done with respect to excesses being taken by Congress, then I propose the following sentence be added to Article 1, Section 6:

Privilege from arrest shall not be construed to exempt Congress from laws they pass, neither shall time served in Congress be applied to any statute of limitations for any law.

Thus, Congress cannot exempt themselves and they can be arrested for abuses upon termination of their service.  Congress must be accountable to the People or the system falls into tyranny.

Your thoughts?

Un-Tipping the Scales Part I: The Executive Powers Checks and Balances Amendment

Our Founding Fathers knew that man was corrupt and sinful by its very nature.  Although there are many today who wish to believe that this is not the case, that mankind is evolving into a higher morality, that we are moving toward a utopian world order; the truth is that these people understand less history than our Founding Fathers did.  History shows just the opposite; that although there are rises and falls in morality, the general trend is downward.  Thus, our forefathers chose to place “checks and balances” into the US Constitution.  This was an attempt to prevent tyranny from taking hold.  At the base of the scales holding the balance, the authors of the US Constitution relied on the populace being the conscience of our government.  Thus, they didn’t make the Constitution air-tight and perfect.  In fact, Alexander Hamilton stated that it would be impossible to make such a document perfect.  In my opinion, had the Founding Fathers known that society would become as less educated and informed as it has now become, they would have placed in tighter controls.  For as our society has become dumbed-down in the last century, both in history and in political interests, our elected leaders have been able to get away with egregious violations of the Constitutional checks and balances.  Because we are now in this state of ignorance, we must shore up the weak areas until such time as the populous regains its strength through knowledge.

First, I wish to examine is the overweight power found in Executive Branch.  See if the following in the Constitution appears to hold true today:

Article 1, Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article 2, Section 3. … [the President] shall take Care that the Laws be faithfully executed, …

Did all of the laws in this nation originate in Congress?  If you are in business, you know that this is absolutely not true.  The Federal Regulations placed upon Americans by the executive branch are enormous.  (You can view the daily process of creating these regulations by viewing the Federal Register.)  Some regulations are legitimate, where the executive branch is enacting laws passed by Congress and staying within the boundaries of the intent of Congress.  For example, much of the transportation regulations have their basis in laws passed by Congress to make transportation safer.  Some regulations are marginally legitimate whereby the initial laws were passed by Congress, but the executive branch has expanded or distorted the scope of the law into areas not approved by Congress.  The census is a recent example of this.  The Constitution calls for a census.  It does not call for an intrusive, multi-page questionnaire asking private questions about your daily life.  There are some cases where regulations, many of these initiated by executive order, have no basis in Congressional laws at all.  Examples of these can be found in un-ratified UN Treaties.  Executive Order Number 13107, called for Implementation of Human Rights Treaties (such as the International Covenant on Civil and Political Rights), and directing agencies and departments of the executive branch to set up mechanisms for carrying out the obligations mandated by these treaties.  Through this President Clinton order, UN treaties still un-ratified by the Senate (such as the UN Treaty on the Rights of the Child) are being implemented through regulation.  This is a clear abuse of constitutional authority.  And according to James Madison, it constitutes tyranny.

“The accumulation of all power, legislative, executive, and judiciary in the same hands…may justly be pronounced the very definition of tyranny.”
–James Madison, Federalist 46

Executive Orders (EO) and Federal Regulations were not described in the Constitution.  Currently, the only checks and balances for these regulations are in the Congress (passing a law to address the order making it no longer valid) and in the Judiciary (if some party should sue to say the regulation is unconstitutional).  Are these sufficient?  I would argue that it is not.  History shows that Congress is very slow to act with usurpation of power.  Sure, they chest thump and hold hearings, etc.  But rare is an act to overturn an EO and doing so is more a function of politics than ensuring constitutionality.  As for the judiciary, the process of suing is costly and time-consuming.  In addition, problems in the judiciary powers (to be described in Part II) may not guarantee a true constitutional ruling.  Therefore, I suggest that an amendment to the US Constitution be drafted to place checks and balances on Executive Orders and Regulations.  Since this is a rule making issue, the check should be applied by the Congress. I suggest the following verbiage:

The following shall be added to Article 2, Section 3.:

The President shall execute the Laws passed by Congress.  Except when national emergency dictates, regulations and enforcement shall be restricted to the boundaries defined by the Congressional Law.  Emergency regulations and enforcements shall expire after 90 days unless Congress affirms the actions through a vote of yeas and nays with the names of those voting for and against being recorded in the journal of each House respectively.  Such affirmations shall be reaffirmed every 90 days until emergency has ceased. No Right, directly granted by the Constitution, shall be denied to citizens by an emergency order, regulation or enforcement action without first receiving affirmation from Congress.  Such restriction shall be minimized in scope and duration in response to a direct threat to the citizens. All executive orders expire 90 days after the termination of a sitting President’s term in office, unless individually renewed by the following President.

The following shall be added to Article 1, Section 7.:

Congress shall review, during the second year of each House of Representative’s term, all executive orders, regulations and enforcement directives to ensure that they fall within the boundaries established by Congressional Law.  Congress shall then direct the President that the non-compliant executive orders, regulations and enforcement directives be brought into compliance.  Disagreements between Congress and the President shall be settled by the Supreme Court. 

The Constitutional Renaissance Convention should place the Executive Powers Checks and Balances Amendment as one of its top priorities.