Tag Archive: “constitution”

The De Facto Capacity Requirement for Office

Posted in society by Adam

5 January 2023

There are always unwritten, unspoken requirements.

The Constitution doesn’t mention a very real requirement that exists for holding office. That requirement is that the officeholder have legal capacity. The 25th Amendment does (in its third section) discuss this, but that was only ratified in 1967 (as a response to the assassination of President Kennedy in 1963).

The main utility of the 25th Amendment is in allowing to fill a vacancy in the office of Vice President. The added ability to deal with incapacity of the president is redundant—impeachment and removal already existed and fitted the need adequately, even if the idea of needing to impeach an incapacitated president seems a shade ugly.

But capacity is a real requirement, though only enforced politically (and thus rarely) in Congress as in the executive and the courts.

Like the Senate’s quorum rule, capacity is generally assumed to a fault, even when there is direct knowledge by those in government that an aged colleague may be failing. And in Congress the lack of capacity is generally overcome by the loyal and capable staffers who carry on with a governmental version of Weekend at Bernie’s.

But a short thought experiment will renounce any doubt that a constitutional capacity rule exists without ever being put to words. Let’s say a new pandemic occurred, or an attack with some novel nerve agent happened, and the result was mass-incapacity in Congress. Would the government honestly have to wait for the next general election to happen? With a bunch of demented or comatose legislators causing both chambers to sit idle, unable to even muster a quorum?

No. That dark day, it would take no time at all for everyone in the land to recognize that there is an obvious, unspoken rule that members must have capacity, and that a permanently incapacitated member forfeits their seat. A temporary loss of faculty might be survivable—litigation might occur if the matter ever came up, but not permanent incapacity.

In the case of a vacant mind, the laws of the state for filling the vacancy would be followed and the seat would be filled at the state’s described pace and in its chosen manner.

For those wondering, this all comes in light of the revelations regarding the fiction of Congressman Santos. While I do not know what will be done, I certainly think it is reasonable if a member is seen to have a complete lack of credibility to question their capacity to serve, and on that basis alone they should be expelled.

And the same should be true for a member too senile, as for a member otherwise lacking capacity permanently.

The case of temporary incapacity is harder to judge, and obviously it would depend on the circumstances, including how obvious it was that capacity could be recovered. The less likely it seemed, the better the case for removal and replacement. If such a member later regained their faculties, they could stand for election and, if the voters desired, be sent back to office at that later date.

There are likely some other de facto requirements, though it’s harder to judge if some are direct requirements or requirements of explicit requirements. For example, being a human is a likely requirement, but only humans are currently recognized as eligible to be citizens, and so it may be that the citizenship requirement would always be violated for non-humans seeking office.

Having a name may or may not fit that as well—the clerk has to call something on the role, and voters have to have a name to vote for. Being alive is certainly a requirement, or at least being animated enough to seem alive—to avoid becoming an estate. Officeholders have to be capable of at least some level of communication—enough to cast votes and to affirm their oath. That requirement may fit under capacity, however.

In any case, the capacity rule is something that should be given greater recognition.

The Road to the Constitution

Posted in society by Adam

19 May 2022

The high (as in positively blotto) court’s decision would invite Constitutional reforms big and small.

Not going to go into the actual process in detail, what’s required in terms of fractions and votes. This is more about the idea of a movement to fix in the Constitution the right to choice in pregnancy and abortion. But it’s also about the movement that will be needed, and the ways to help that along.

If you want to amend the Constitution, state-level support is necessary. All amendments must be ratified by the states (at least three out of four). But if you want to amend the Constitution, that’s a feature! Yes, a number of states are domineered by anti-rights Republicans who hold power by a number of mechanisms including gerrymandering, voter suppression, lack of public-access laws, so the road to ratification has to drive through at least a few of those, requires their rectification.

But a campaign for the Constitution is an asset in building those roads! It draws media attention, and if done properly, it magnetizes different groups to pitch in. So let’s start with that second thought: this isn’t about an abortion amendment by itself. This is about renewal. It’s about taking up that mighty pen and fixing the holes that have developed over the past decades.

So in the states, you don’t only push an abortion amendment, you also push for gay marriage and civil rights for LGBTQ persons. Rally for the Equal Rights Amendment for women, for a piece to fix campaigns and gerrymandering. Update the second amendment! Term limits, number of seats in the House, abolish the filibuster, and so on. Whatever the mix. Not all of them will pass. But the commitment and the collaboration are important.

More important is many things deserve to be in the Constitution, if only to memorialize the struggles it took to make progress. The Constitution should be not just a record of the highest law, but it should be a teaching tool, a history of America’s progress toward liberty and justice. It was written “to form a more perfect Union,” and each major step we take to improving its perfection deserves to be added to that.

What can states do to help this along? They can signal willingness to ratify, they can push state-level amendments ahead of the effort for amending the federal constitution, and they can call for a constitutional convention to attempt to propose the amendments for ratification, going over the heads of Congress. They will also garner media attention, help spread the word.

The media attention is key. People need to know about the road to use it. It’s not a shortcut, it’s not a dead end, it’s the way forward. People need to know a road is being built to get our country back into the future. In some states, those which already will codify and protect their citizens’ rights, it will be an easy sell. They’ll pass state-level protections, pass a resolution calling for a convention, but some of them will also help organize neighboring states where the path for the road needs clearing, or where a bridge needs to be built.

We’ve never had a constitutional convention other than since the one that created the Constitution. That may be another amendment that’s needed: that we hold conventions every ten years, or every 20 years. It is a document that needs more tending than we have given it. The Constitution was written with an expectation that it would be amended over time, but perhaps they were too generous in expecting the convention mechanism would see some use by accord of the states rather than as a requirement. That is among the mistakes they made for which we owe our current crusty impasse on political progress.

There are risks to a convention, that conservatives want an amendment to require the federal budget be balanced in terms of revenue and spending. We’ve almost never had a balanced budget, going back to the founding. It’s a bad idea. But would it pass the states? If proposed, we’d find out. All the while, it would keep the other amendments in the news, for gay rights and abortion and all the others that might be proposed.

And in the worst case, that such a dumb amendment was to pass, the federal government’s hands unduly bound by its budget, it would surely be repealed as prohibition once was. The risks of conservative amendments being ratified simply does not rate against the need to protect our citizens and renew our Constitution to protect the nation’s future.

Or maybe the conservatives at a convention would rally for some other dumb idea. We cannot let fear of more bad law stop us from seeking good laws. We already have more than our share of bad rulings and laws, thanks to the conservatives. We already have failed in environmental protections, in education, in civil rights protections, in blocking corruption, in all these things, for the Republicans have used their fiats and their vetoes to see to it.

As women’s rights are stripped away in some states, as women suffer, the media will be covering that issue until the right is restored to the whole country. Advocates are already poised to use that attention to keep pressing the issue, but if they can wed it to the broader movement of constitutional reform, it will help people to understand the difference. We can no longer rely on statutory protections or precedents that may be gone by the end of the court’s next sitting.

The anti-abortion movement has not prepared for a post-Roe world. The things that a good government would have already done, regardless of abortion politics, have not been done. (On 18 May 2022, a mere dozen Republicans voted to spend $28 million to alleviate the baby formula shortage! See US House: 18 May 2022: Roll Call 220.) These include:

Family leave
Reducing poverty
Clean air policies to reduce miscarriages and stillbirths
Healthcare access, including Medicaid expansion (especially prenatal care)

Indeed, they would have long been done by empowered Democrats, but even as Republicans have agitated to ban abortions, they have sought to make abortions all the more attractive to those who are left unsupported, and their pro-pollution policies have resulted in large numbers of miscarriages and stillbirths.

The media hasn’t done enough to tell those stories, but in a post-Roe world, the media will start telling them, and it should relate them to women’s rights and the failures of the anti-abortion movement. At the same time, if the reform movement advocates for some change, it will do well to prepare by pushing for any laws or programs that would be needed should their goal be reached.

A constitutional reform movement will make it clear, as the robed Republicans would do in overturning Roe, that we must memorialize our nation’s progress in the Constitution. Nothing less will do. They will steal our rights away from us if we do not put them out of the reach of those spoiled children.

The Voting Rights Act—a statute, a codification—was constitutional until the court decided a Black president meant racism was through. And now the states are using their power to make voting harder, even banning handing out water to the thirsty people waiting to vote. Abortion was protected until Republicans stole enough seats to tear it away. It needs to go in the strongbox of the Constitution, where it can be amended out if need be, but it can’t be taken out by the black dresses.

There are those who say codifying Roe, much less amending the Constitution, is all but impossible. Today it is. Today we suffer under the regime of the past, under the shadows of bygone sins, the remnant pollutions of racism and sexism. But tomorrow? Are we forever stuck in this moment? Do our clocks no longer tick? I say they do.

If trampling rights signifies anything, it is that politics do change, and that we have the choice and the right to alter or abolish governments—through voting—that have become destructive to our liberty. Journalists and writers who don’t remind you of that do a disservice to the document protecting their right to write.

The Right to Reproductive Autonomy

Posted in society by Adam

3 May 202220 April 2023

If the court makes this mess, America will have to clean it up.

If the circulating draft is anything like the decision by the Supreme Court, there is but one remedy: amending the Constitution.

To that end, here is a draft article of amendment:

Section 1. The right to reproductive autonomy must not be denied or abridged by the United States nor by any State.
Section 2. No pregnancy may be terminated upon viability, except when it particularly threatens the mother’s life.
Section 3. The Congress has the power to enforce this article by appropriate legislation.

What does that mean?

Abortion will be legal and not subject to the whims of madmen. Any pregnancy may be terminated, whether for rape or incest or any other reason, up to viability.
Pregnancy cannot be terminated once a fetus can live outside the womb. The only exception to that is when continuing the pregnancy or inducing labor or caesarean birth would result in death or major health complications for the mother.

I am not sure this would be the best language for a Constitutional amendment, but it’s what I think would work. Lawyers and experts will surely propose their own language and whatever is eventually ratified will differ somewhat.

It will take time and work to achieve such an amendment, but it is the only reasonable guarantee of a natural right to reproductive autonomy. The people of the United States will support the passage of such an amendment, though it will take a decade to get there.

First, what is required to amend the Constitution? Either you go through a convention (called by two-thirds of the states; has never happened before) or you get two-thirds of both Houses of Congress to propose it to the states. Three-fourths of the states (that’s 38 total) must ratify it.

Efforts will be made on both methods of proposal. Liberal states will quickly pass resolutions calling for a constitutional convention, and there will be proposals in states with mixed government, some of which may pass. There will be proposals floated in Congress. But without a reshaped politics, it will come down to grinding out better elected representatives to make it happen.

For the court to strip away women’s rights would reshape politics. There will either be moderate pro-choice Republicans elected, or that party will be throttled in their ambitions to allow for a mixture of independents, third-parties, and Democrats to do the work needed to enshrine this natural right in our written Constitution. Some of that will require new political alliances and forms. Some of it will result naturally from the media publication of the harms of denying women bodily autonomy.

That last part means citizens will suffer very real oppression from a pseudo-Christian cult’s misinterpretation of scripture and law. Some will die from bleeding and sepsis. Some will be imprisoned for working to secure healthcare for the vulnerable. But we live in a media age where hiding or dismissing the real harms will be impossible. Politicians, likely including Republicans, will have no choice but to affirm women’s rights.

That’s not to say it will be an easy struggle, but it will be necessary and it will happen. All of it will take a lot of work and voting. Please register to vote. Go on Ballotpedia and other resources to look into who’s and what’s on your ballot and when you vote on it.

There are other things that will likely happen along the way. The Supreme Court will be reformed. The filibuster rule may go away. But none of that changes the fundamental goal and outcome: Constitution or bust.