Well-Regulated Militias, and More

Charles Brown CharlesB at CNCL.ci.detroit.mi.us
Tue Nov 2 14:44:17 PST 1999


Although I can agree with Michael that the cumbersomeness and difficulty of the Amendment process are undemocratic, the fact that it CAN be amended , even by a republican process, is one of the most democratic dimensions to the U.S. Constitution. Herbert Aptheker, in _The Early Years of the Republic_ says the Amendment provision has been termed the "revolution" provision. Prior to the U.S. Constitution, law was considered something handed down by God (like the Ten Commandments) or the King, and immutable except by the same source. The Amendment provision is a dialectical provision of law never seen before in humanity. It recognizes that the law is not an immutable, permanent thing, but rather that it reflects social circumstances and may be considered as in error.

Also, some of the Amendments have been some of the most progressive provisions of the Constitution. The 13th Amendment abolished slavery. Hard to get more revolutionary and democratic than that.

Most importantly, the Amendment provision offers a method of peaceful revolution. Every provision of the Constitution is subject to change. I'd have to say that the basic concept of amendability is the most radical aspect of the U.S, Constitution.

Regarding this thread, the notion of "scrapping the whole thing" as a radical act, is essentially a form of amendment. It would certainly take some types of supermajorities to realistically carryout such a scrapping. If those supermajorities existed for fundamentally changing it, they might as well do it through the Amendment process.

If this notion of scrapping it implies not replacing it with some other fundamental law, then the proposal is reactionary, not radically progressive or socialist. It is a point at which anarchism turns into tyranny. The idea of abolishing the rule of law is not progressively radical. In reality it would become a society of might makes right, the rule in all tyrannical societies.

So, a basic question on this thread is what is being proposed to replace the Constitution ? Some anarchist illusions are equivalent to fascism in the real world. Witness the concept of "freedom" of speech for Nazis and KKK.

CB


>>> "Michael Hoover" <hoov at freenet.tlh.fl.us> 11/02/99 03:55PM >Amending process, subject of Article 5 of US constitution, is cumbersome
and requires super-majorities both for proposal (2/3rds of both houses of Congress) and ratification (3/4ths of states, 38 states). Congress determines method of state consideration, either by state legislatures (26 of 27 have been ratified this way) or by state conventions (as was done in case of constitution itself and 21st amendment repealing 18th amendment prohibiting liquor).

2/3rds of state legislatures can petition Congress to call a national convention to consider amendments but this has never been used (actual language is 'application' not petition and some constitutional scholars suggest that means Congress could reject the application). Scholars of US constitution tend to be conservative and guarded about it and 'protective' of it. They generally look with disfavor on the petition approach, suggesting that a national convention could open the entire document up for review and they apparently don't want that to happen (1787 constitution is a product of just such a convention, delegates were sent to Philadelphia to try to 'fix' the Articles of Convention but they proceeded from the get-go to write an entirely new document, one more favorable to folks of their class).

In any event, amending process is one of a number of anti-democratic features of US constitution (although it is not uncommon to read that 'the people have a right to change the Constitution' in intro US gov't texts), intended - as were such mechanisms as bicameral legislature, executive veto, staggered elections, judicial appointment with unlimited tenure - to thwart popular majorities. As James Madison (the 'father of the US Constitution) wrote, in *Federalist #10*, the document was intended to offer the appearance of democracy sans the substance. Michael Hoover



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