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  Pack the Union: Admit New States to Amend Constitution for Equal Representation
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Author Topic: Pack the Union: Admit New States to Amend Constitution for Equal Representation  (Read 1092 times)
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The Impartial Spectator
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« Reply #50 on: January 15, 2020, 02:50:32 am »

For me, the nickel summary is similar to what Ghost of Ruin said above: Fancy lawyering ain't gonna get us out of our problems. The problem is people with power seizing ever more power, clinging to that power illegitimately, etc. They're not going to look at a clever set of rule changes and say, "Oh, damn, guess I've got to surrender that power now."

It is not actually just people seizing power and clinging to it illegitimately though.

It is the system working as designed (it just the design had some problematic aspects and the designers didn't have 250 years worth of foresight when they were designing it, and also elements of the design have been changed in the interim, such as changing to direct election of Senators, and not-really-using-the-electoral-college-as-it-was-originally-set-up-but-still-having-it-sort-of).

Donald Trump (and George W. Bush before him) were legally (and legitimately, insofar as "legally" means legitimately, which it does to a considerable extent) elected under the system. Likewise the same is true of all the Senators who have been elected, and also of all members of Congress elected from gerrymandered districts.

And yet, despite the fact that all the Senators have been elected legally/legitimately, it is nonetheless true that the minority rules (systematically), and the way in which the minority rules is systematically getting to be more and more of a problem, because population deviations across states etc have grown to be far larger than anyone would have dreamed of back in the 18th century, and much else has also changed that nobody anticipated then.

So it is not that people have seized power, or are clinging to it illegitimately. It is that the system is set up so that the minority tends systematically to rule over the majority. And this is then made worse also by cynical and deliberate tactics such as voter suppression and gerrymandering as well.
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The Impartial Spectator
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« Reply #51 on: January 15, 2020, 02:57:08 am »

Yeah, I basically agree. If you can amend the constitution, amend it so that the House takes up the Senate's confirmation abilities for judges and executive appointments, for instance.

You can't amend the Constitution, though, at least not through normal means. Since the Constitution systematically empowers the minority over the majority (given how various things like partisan politics and state populations have evolved over a long period of time), the minority has no incentive to abolish its own power (other than democratic principle - but if you are a minority that keeps getting your way over a majority, democratic principle is not necessarily appealing).

And since the requirements for amendment are so enormously high, the minority that is empowered over the majority can easily block the majority from enacting any such constitutional reform under the normal method.


In practice, we are stuck with an un-amendable constitution which has serious problems, that nobody with power has an incentive to fix. Absent some alternative viable way to fix the problems with it, the situation seems likely to only grow worse with time.
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emailking
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« Reply #52 on: January 15, 2020, 08:59:42 am »

Except lol that is the only part of the constitution that just cannot be amended unless every single state wants it to be amended.

That is not really a constraint. If nothing else, you can always pass an amendment that says "The Senate shall have no powers whatsoever," pass other amendments to turn it into effectively a House of Lords equivalent, etc.

That strikes me as a bit of an underhanded workaround that goes against the spirit of the clause, in which states cannot be forced to give up their representation in the Senate without their consent. I think you could pass amendments that change or limit the scope of the Senate's power to some extent, but to strip it of all or even most of its power? I don't think that would hold up in court.
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Figs
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« Reply #53 on: January 15, 2020, 09:18:42 am »

Except lol that is the only part of the constitution that just cannot be amended unless every single state wants it to be amended.

That is not really a constraint. If nothing else, you can always pass an amendment that says "The Senate shall have no powers whatsoever," pass other amendments to turn it into effectively a House of Lords equivalent, etc.

That strikes me as a bit of an underhanded workaround that goes against the spirit of the clause, in which states cannot be forced to give up their representation in the Senate without their consent. I think you could pass amendments that change or limit the scope of the Senate's power to some extent, but to strip it of all or even most of its power? I don't think that would hold up in court.

1) Pass an amendment that amends that part that says you can't change allocation of senators.

2) Pass an amendment changing allocation of senators.
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emailking
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« Reply #54 on: January 15, 2020, 10:14:55 am »

1) Pass an amendment that amends that part that says you can't change allocation of senators.

2) Pass an amendment changing allocation of senators.

And what, I'm supposed to not have the same hangups about that? You're just sweeping the dirt under the rug.
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Figs
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« Reply #55 on: January 15, 2020, 10:16:47 am »

1) Pass an amendment that amends that part that says you can't change allocation of senators.

2) Pass an amendment changing allocation of senators.

And what, I'm supposed to not have the same hangups about that? You're just sweeping the dirt under the rug.

I'm not saying you're supposed to like it. I'm just outlining a way it could theoretically be done that wouldn't survive any court challenges because it would be, after the amendments, entirely constitutional.
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emailking
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« Reply #56 on: January 15, 2020, 10:29:11 am »

1) Pass an amendment that amends that part that says you can't change allocation of senators.

2) Pass an amendment changing allocation of senators.

And what, I'm supposed to not have the same hangups about that? You're just sweeping the dirt under the rug.

I'm not saying you're supposed to like it. I'm just outlining a way it could theoretically be done that wouldn't survive any court challenges because it would be, after the amendments, entirely constitutional.

it can't be done that way. It's absurd on it's face to think you can change through the amendment process what the amendment process says you can't change.

Yes it's a loophole that survives the rules of formal logic, but it's even more ridiculous than stripping the Senate of all its power and would not survive a court challenge.
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Figs
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« Reply #57 on: January 15, 2020, 10:44:56 am »

1) Pass an amendment that amends that part that says you can't change allocation of senators.

2) Pass an amendment changing allocation of senators.

And what, I'm supposed to not have the same hangups about that? You're just sweeping the dirt under the rug.

I'm not saying you're supposed to like it. I'm just outlining a way it could theoretically be done that wouldn't survive any court challenges because it would be, after the amendments, entirely constitutional.

it can't be done that way. It's absurd on it's face to think you can change through the amendment process what the amendment process says you can't change.

Yes it's a loophole that survives the rules of formal logic, but it's even more ridiculous than stripping the Senate of all its power and would not survive a court challenge.

If the Founders had wanted to entrench any part against amendment, they could have said, for instance, "The process outlined in Article V shall be the sole means of amendment of this constitution, and no amendment shall in any manner affect the text of Article V." By including this *in* article V, there would be no way to get it out. But it's not done that way. Sure, this isn't going to happen, I don't dispute. But law is about what's written, not about what we wish were written, right?
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emailking
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« Reply #58 on: January 15, 2020, 11:07:37 am »

If the Founders had wanted to entrench any part against amendment, they could have said, for instance, "The process outlined in Article V shall be the sole means of amendment of this constitution, and no amendment shall in any manner affect the text of Article V." By including this *in* article V, there would be no way to get it out. But it's not done that way. Sure, this isn't going to happen, I don't dispute. But law is about what's written, not about what we wish were written, right?

You really think they intentionally left that out so that the allocation of Senators could be changed by a 2 step process that would have the same number of votes as the one step process?

It's not in there because it's implicit.

As a purely theoretical exercise, there's a path there, yes.
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« Reply #59 on: January 15, 2020, 11:45:07 am »

If the Founders had wanted to entrench any part against amendment, they could have said, for instance, "The process outlined in Article V shall be the sole means of amendment of this constitution, and no amendment shall in any manner affect the text of Article V." By including this *in* article V, there would be no way to get it out. But it's not done that way. Sure, this isn't going to happen, I don't dispute. But law is about what's written, not about what we wish were written, right?

You really think they intentionally left that out so that the allocation of Senators could be changed by a 2 step process that would have the same number of votes as the one step process?

It's not in there because it's implicit.

As a purely theoretical exercise, there's a path there, yes.

No, I never said I believed that they wrote it this way intentionally to allow a two step process to amend the part they said couldn't be amended. What I said is that regardless of what they intended, that's what they wrote.
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emailking
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« Reply #60 on: January 15, 2020, 12:06:54 pm »

Ok. Sounds like you agree with me then,  I guess.
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Dereich
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« Reply #61 on: January 15, 2020, 12:12:50 pm »

If the Founders had wanted to entrench any part against amendment, they could have said, for instance, "The process outlined in Article V shall be the sole means of amendment of this constitution, and no amendment shall in any manner affect the text of Article V." By including this *in* article V, there would be no way to get it out. But it's not done that way. Sure, this isn't going to happen, I don't dispute. But law is about what's written, not about what we wish were written, right?

You really think they intentionally left that out so that the allocation of Senators could be changed by a 2 step process that would have the same number of votes as the one step process?

It's not in there because it's implicit.

As a purely theoretical exercise, there's a path there, yes.

I'd point you to Federalist 85. Hamilton readily admits that the Constitution is imperfect and built on a series of unsatisfying compromises. He suggests that the sum of the Constitution is more than its parts and that after being adopted and on reflection amendments which change the fundamentals might be necessary. I don't think the Founders ever considered any part of the Constitution to be wholly sacrosanct and unchangeable; the Senate itself was an unhappy compromise for the benefit of the smaller states. Nothing implicit about it.
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emailking
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« Reply #62 on: January 15, 2020, 12:22:50 pm »

I think you can probably throw out the entire Constitution in a convention, and Hamilton and others would probably be surprised we're still using basically the same thing they passed. Nonetheless, this specific issue is a totally different beast. There's no way the Amendment clause has a loophole because of a compromise. No reasonable person would read it and think you could get around the restrictions by amending the restriction list. What's the point of even having the restrictions at all? The thought probably doesn't even occur to most people reading that. It's silly.
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The Impartial Spectator
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« Reply #63 on: January 15, 2020, 01:32:53 pm »
« Edited: January 15, 2020, 01:36:37 pm by 👁👁 »

I think you can probably throw out the entire Constitution in a convention

You can't really get a Constitutional Convention because the requirements to get one are ridiculously high, just as are the requirements to pass an Amendment. It requires 2/3 of states to call for a convention and 3/4 of states to ratify amendments from a convention, which means that 1/4 of the states (representing a far lower percentage of the population than 1/4) could simply block everything (even if a convention could be called in the first place - and since no convention has been called in 250 years, clearly that is not an easy thing to accomplish). Note also that since DC and territories are not "states," they are not involved in a Convention at all under the rules for one specified in the Constitution, and have no representation in it! Which is precisely part of the problem in the first place!!!

Consider the states of Wyoming, Alaska, North Dakota, South Dakota, Montana, Idaho, West Virginia, Nebraska, Kansas, Mississippi, Arkansas, Utah, and Oklahoma.

https://simple.wikipedia.org/wiki/List_of_U.S._states_by_population

That is 13 states, which is more than 1/4 of "states," and therefore enough to block any Constitutional amendment. They have a total population of about 25,569,997. But the total population of the USA (including DC/PR and territories that are just as worthy of representation as any other citizens) is about 330,744,054. So you have a system, right there, where states representing only 7.8% of the population can block any Constitutional Amendment!!! An even crazier thing is that even though DC/PR/territories have more than 4 million people, even if you don't count them as part of the relevant total population it still rounds to 7.8%!!!

There are also plenty of other safely Republican states with populations only a bit bigger like Kentucky, Louisiana, Alabama, South Carolina, etc, so it is pretty easy to summon up that 1/4 of states to block anything. And this is not even counting small states that are Democratic or competitive, like Vermont, Delaware, New Hampshire, etc.

A Constitutional Convention is also (at least I would argue) actually more radical than is needed; the entire structure of the Constitution doesn't necessarily need to be changed, and it is not clear that a Convention could be limited to only addressing the unrepresentativeness of the system and making the system more democratic.

If anything, it may actually be more likely that a Convention at least under the rules listed int he Constitution for one, in which it is all (like the Senate) based on states rather than people, would actually end up making the system less representative than before. Since a small minority of the population has disproportionate voting power and influence under that system, they may use that disproportionate voting power and influence to simply make their voting power and influence even MORE lopsided in favor of themselves than before. At the extreme, all the small states could just gang up on California etc. Why not just pass an amendment saying that California should have no representation at all (just like the people in DC have no representation)? They have the power to do this. Even if they might not go that far, they could pass other amendments to make the system even less representative than it is now.

However, keep in mind that the original Constitutional Convention was not really "legal" under the then-current governing system of the Articles of the Confederation, and they basically just made up their own process as they went along.
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Skill and Chance
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« Reply #64 on: January 15, 2020, 02:02:33 pm »

Hmmm... a law making a single family home a state is likely unconstitutional*.  It would be challenged as equivalent to granting a title of nobility to that family.  The 1860 population of the Nevada Territory (just under 7000 at the last census before its statehood) is presumably a safe harbor and that would mean it is possible to make a dense city block of highrises its own state.     


Still, this plan is completely insane and it would have consequences similar to making the existing homeowners/landlords in the tiny states a new class of nobility.  There is no way they turn around and relinquish their newfound near absolute power over the federal government (doubly so if the states are literally in DC).  This type of corruption was common with the railroads/mining companies being the only major employer in some of the small states of the 19th century West, and they were 10-100X the fraction of the total US population as the tiny states in this plan would be.

*A congress committed to structural changes this radical would presumably have packed SCOTUS with 10 of their strongest supporters long before the appeal gets there.

**This would have 100X the destabilizing impact of packing SCOTUS. 
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The Impartial Spectator
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« Reply #65 on: January 15, 2020, 02:30:53 pm »


By reasonable standards, yes.

However, if states representing only 7.8% of the population (actually less) can block any constitutional amendment and are incentivized to do so, what exactly is a reasonable standard?

What exactly is the alternative plan for reform?

The only alternative plan I have heard is no plan (simply to not have reform).

If in another 100 years the population of California has reached 200 times that of Wyoming, will that not be a problem? If so, what should be done about it?

If not, then you don't want reform. But in that case, the reason why you don't want reform is simply that you don't want it on the merits, not that you don't like the particular procedural plan to achieve reform.
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Skill and Chance
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« Reply #66 on: January 15, 2020, 07:03:04 pm »


By reasonable standards, yes.

However, if states representing only 7.8% of the population (actually less) can block any constitutional amendment and are incentivized to do so, what exactly is a reasonable standard?

What exactly is the alternative plan for reform?

The only alternative plan I have heard is no plan (simply to not have reform).

If in another 100 years the population of California has reached 200 times that of Wyoming, will that not be a problem? If so, what should be done about it?

If not, then you don't want reform. But in that case, the reason why you don't want reform is simply that you don't want it on the merits, not that you don't like the particular procedural plan to achieve reform.

Start by admitting each of the overseas territories and (the populated parts of) DC as states.  Then reevaluate after a decade or so.
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« Reply #67 on: January 15, 2020, 08:03:37 pm »


Ultimately, the long-dead authors the Constitution have no authority or justification to tie the hands of our generation against our own will ~250 years after the fact with a system that fails to function. They even literally said so themselves!!!! From the Declaration of Independence:

Quote
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

I don't think I could have said it any better myself!

When you are objecting to this plan, you are doing exactly what the Declaration of Independence expects you to do - "mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." You are simply doing what mankind is disposed to do. We are naturally scared of significant change, and would all naturally prefer to try to work things out as best as we can for as long as we can. The natural inclination is to be cautious. That is not necessarily a bad thing - we should want to be careful and deliberate, to be sure, and exactly as it says prudence does "dictate that Governments long established should not be changed for light and transient causes."

So the question is, when does it become too much? The question is just how long does the "long train of abuses and usurpations" need to be of installing systematic rule-by-the-minority before you come to recognize it as a "design to reduce you to living under Despotism?" How much does it take for it to not be simply a "light and transient cause," but rather a systematic problem that we can't otherwise change?

Does it take 1 President elected with minority support, over another candidate that got more votes? 2 such Presidents? 3? 50? 500? 1 Senate where the "Majority" party represents only 40% of the population? 2 such Senates? 3? 50? 500? Or is 40% too much - does it need to be the Majority party only representing 35% of the population? Surely there is some point at which anyone would recognize the problem. What is the the # where any pretense of Democracy has been sufficiently abandoned for the government to become illegitimate (I mean illegitimate in terms of fundamental democratic principles, not illegitimate in terms of its own internal legal structure)?



In those terms, note that it would actually be legitimate (in terms of the consent of the governed) to simply change the Constitution to abolish the electoral college etc without fulfilling the requirements listed in the Constitution for an amendment, provided that there were sufficient general popular support for doing so (sufficient consent of the governed). This would also be, however, "illegal" in terms of the written text of the Constitution. So it would be legitimate, but illegal.

The advantage of doing this via adding temporary states is that it would be within the letter of the law, whereas the alternative amounts to simply ignoring the text of the Constitution. So it would be legal. And it would also be clearly justified in terms of democratic principles. And if it is done, it ought to be done with sufficient consent of the governed/popular support.




If there are other ideas about what could in theory be done, I would be interested to hear those. But I haven't really seen any ideas other than "tolerate a large and growing bias to minority rule over the majority, it is not so bad!"


I utterly reject the premise implied by your post, that if we choose to reject the legitimacy of a government poisioned by Banana Republicans our only alternative is an arrangement of byzantine technicalities that only Rube Goldberg could love. Rather, I think it it is the opposite: if the United States is dying (as I fear it is), then don't try to come up with some Frankenstein solution that will further erode positive social constructs like Rule of Law. Rather, let it die and put our energies into building something else, that will work better for its citizens. US State governments are far from perfect, but they provide a pre-assembled alterantive to the government in DC, an invaluable benefit for any group preparing for the end of the United States.

If instead you want to truly save the United States, it will be a difficult path.Institutions that are already rotten or broken need to be repaired or rebuilt. We need to be prepared for a long fight against dying Republicanism: with ideals, with media, with practical solutions to peoples problems, with real workable alternatives, with legal fights, with protests, and with protection for the public against the seemingly inevitable Republican terrorism. And when the last Republican majorities are sent to the political graveyard, we will need to rebuild everything for a generation or more. All while dealing with the climate crisis, anbd the broader struggle between labor and capital (or, if you prefer, between humanity and corporations, or the public and the oligarchs).

Any such attempt as is proposed by the OP will destroy the United States, and in a very short time, as would an equivalent move by the GOP.
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