Last month, Citizens for Self Governance sponsored a simulated convention for proposing amendments in Williamsburg, Virginia. I was an adviser for the project, and just before the initial meeting I spoke to the assembled commissioners.
My purpose was to provide them with some last-minute tips on drafting proposed constitutional amendments.
Several people have asked me to post my remarks on the web. Those remarks were delivered extemporaneously—or rather from very sketchy notes—rather than from a prepared text. As best as I can reconstruct them, however, the drafting tips were as follows:
* In your committee, first prioritize what you want to do. In other words, decide what you want to accomplish rather than begin with submitted drafts that might cost you time but ultimately have little support. For example, in the Fiscal Restraints committee, you might decide that the priorities are a balanced budget amendment and a government accounting amendment. Then start with submitted drafts that fit those ideas.
* Remember that any proposed amendments must be ratified, which will require super-majority support throughout the country. Maybe the people in your district want to repeal Social Security, but most Americans do not. Focus on worthwhile reforms they will support.
* Keep your proposals germane. The scope of the convention is set by the scope of the application. For this simulated convention, the scope is limiting federal power and jurisdiction, imposing fiscal restraints on the federal government, and term limits. Proposals that do not fit within those criteria are out of order. Most of the tips listed here are general guidelines only, but the germaneness requirement is a firm rule.
* Your proposals should comport with the general style of the Constitution, and part of that style is brevity. The longest amendment ever passed (the 14th) contained only about 420 words, and the poor drafting of that amendment suggests even that was too long. Americans will be justly suspicious of wordy amendments.
* Avoid using words and phrases that can be easily manipulated or will invite the courts to become involved in ordinary government processes such as budgeting. Good illustrations of terms to avoid are “gross domestic product” and “emergency.”
* Avoid substantive rules in favor of the procedural approach. For example, if you want to create an exception for emergencies, don’t try to define (or even use) the term “emergency.” Instead allow exceptions if approved by some extraordinary procedure, such as a supermajority vote in Congress or approval by the state legislatures.
* Don’t inadvertently concede the constitutionality of programs that might be challenged in the future. For example, if an amendment authorizes Congress to spend 19% of GDP, the courts might interpret the amendment as implicitly authorizing all major spending programs in force the last time the federal government spent 19 percent of GDP. You will want to leave that issue to a later day rather than prejudice it now.
Both the deliberations themselves and the amendments successfully proposed show that the commissioners generally followed my advice. The longest amendment proposed was only 199 words. The convention assiduously avoided easily-manipulated terms in favor of procedural safeguards. They rejected most proposals that, while popular among themselves, were unlikely to be ratified by three fourths of the states.