1/4/24, 12:30 There is one correct way to amend a Constitution, part 1 of 2

There is one correct way to amend a

Constitution, part 1 of 2
A constitution should be amended by two majority votes separated by some
years, and any other method allows authoritarian takeovers
LAWRENCE KRUBNER
NOV 03, 2021

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Over the next year, as I write here on Demodexio, I hope to prove 7 ideas about ideal
government. The first of these is:

There is an ideal way to amend a Constitution, and it involves two votes, decided by a
simple majority and separated by a certain amount of time.

The argument goes like this:

Any Constitution can be transformed into any other Constitution by way of

amendment, and therefore, in a sense, there is only one fundamental question of
Constitutions, and that is how can they be amended. Every society needs to find a
balance between stability and flexibility; every society needs to adapt to change while
keeping the important fundamentals solid. Therefore there must be some ideal
amount of time over which Constitutional change should play out. Too fast and it
might be too easy for one moment of public hysteria to sweep away everyone's civil
rights, but if too difficult then people begin to ignore the Constitution because it no
longer matches people's actual needs.

What is the ideal speed at which a Constitution should evolve? At the current
moment, the world offers us two countries as examples of the dangers of the two
extremes: Hungary and the USA.

In Hungary it was too easy to change the Constitution: it only took a 2/3rds vote. The
financial crash of 2008 caused the public to panic, and in their panic they elected the
extreme right Fidesz party. Hateful, nationalist, xenophobic, homophobic and
authoritarian, Fidesz has eroded the rule of law. Lead by Viktor Orbán, the Fidesz

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government has established what Orban first called “illiberal democracy” before he
started calling it “Christian democracy.” Fidesz has used it's power to get rid of the
judges who were strict in defending the fundamental rights of the citizens; Fidesz
then appointed new judges who were willing to help distort the system in Fidesz's
favor. The Constitution was amended to make it easier for Fidesz to harass any
newspaper or radio stations that took an oppositional tone -- licenses were withheld,
approvals were blocked, libel laws changed, and journalists no longer had recourse to
fair, impartial courts. If Fidesz had to face honest reporting, its popularity might have
faded with time, but having gained control over the media, they manage to keep the
public focused on enemies other than Fidesz. Voting rules were changed. Fidesz has
established an authoritarian system, and entrenched its own 2/3rd majority, so it will
be difficult for the public to vote them out.

In the world of software, where I have worked for 21 years, we have often seen a
hacker string together several minor bugs in a system, to create a major break-in. For
instance, in 2014 Egor Homakov perceived that he could string together five minor
bugs to create a major break-in on the site known as Github. As a responsible hacker,
he notified Github of the problem, before making the hack known to the public. The
bugs had previously been examined by Github's own engineers, who are some of the
smartest people in the software industry. And these professionals had initially
decided that these five bugs were so minor that they did not constitute a threat.
Homakov's brilliance was in seeing how each bug altered the context of the other
bugs, so that the five together were potentially a major disaster.

In a similar sense, we could say that Hungary has three minor bugs in its
Constitution, which combine to form a major problem:

agradezco un punto a favor de segunda camara sorteada (de que una segunda camara
1. The legislature is unicameral. no siempre es una poronga), pero es que ahora estoy MUY anti bicameralismo. muy
lenta esa chota. no me convencen.

2. The entire legislature is put at risk during each election. increible que los nordicos hagan esa, re endeble
todo, y aun asi...

3. The Constitution can be change with a single two-thirds vote. esto es la proteccion tipica, mindblowing
que lo pusiera en duda, genio.

Any one of these can be reconciled to Western ideals of rules-based legal

proceduralism, but the three of them together are a disaster.

If the legislature was slowly changed over time, with a staggered schedule, as the
Senate of the USA is, then the two-thirds vote to change the Constitution would not

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be so deadly, as it would take multiple elections for a party to gain such power. But if
the whole legislature is allowed to be changed at once, then amending the
Constitution should require multiple votes. We can assume that at least two votes
would be a natural, automatic part of the process if the legislature was bicameral
instead of unicameral. If any one of these three "bugs in the software" had been
different, Hungary would have been more resistant to an authoritarian takeover.
igual, aca te corrijo. hubiera sido aca y ni se te ocurra dudar que los 2 tercios de autoritarios los sacas de las provincias, que son alimentadas por el
senado
Clearly, as things stood, it was too easy to change the Constitution in Hungary.

In the USA it is too difficult to change the Constitution. This is the official process
that has been used for the 27 amendments so far passed:

"The Constitution provides that an amendment may be proposed either by the

Congress with a two-thirds majority vote in both the House of Representatives and
the Senate... A proposed amendment becomes part of the Constitution as soon as it is
ratified by three-fourths of the States." (38 of 50 States)

https://www.archives.gov/federal-register/Constitution

Sadly, this process was too slow to respond to the crisis that the USA found itself in
the 1930s during the Great Depression. Unemployment rose to its all-time peak of
25% and many millions of people were starving and desperate. Some suggested that
only Socialism or Communism could solve the problems that the country was facing.
President Franklin Roosevelt (FDR) pushed through several emergency programs,
including the National Industrial Recovery Act of 1933, which were then rejected by
the Supreme Court.

A summary of those events:

""""

In 1935 the U.S. Supreme Court struck the law down on the grounds that Congress's
power "to regulate commerce... among the several states" did not extend so far as to
allow Congress to regulate certain economic activities that never crossed any state
lines whatsoever. According to the Court's 9-0 ruling in Schechter Poultry Co. v.
United States, "extraordinary conditions do not create or enlarge Constitutional
power."

""""

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FDR then said he planned to pack the court. Since the Constitution does not say how
many judges should serve on the Supreme Court, FDR could easily raise the number
of judges from nine to fifteen and thus give the court a progressive majority which
would allow FDR to pass the laws that he wanted.
es horrible que los jueces supremos hagan una catch 22 para que no haya estado del bienestar (rancios hijos de puta)

The Supreme Court, frightened by the possible end of its independence, decided to y es
horrible
change course before FDR took any action against it. From that point forward, it que un
presidente,
became common to interpret the Commerce Clause in a way that justified the un
mogolico
expansion of Federal power. The Commerce Clause (Article I, Section 8, Clause 3) con
prendedor
grants Congress the power "To regulate Commerce with foreign Nations, and among de rubí,
amague a
the several States, and with the Indian Tribes." By no means can a reasonable person
hacer
mierda la
corte
read this clause and think that it grants all of the powers now held by the Federal segun su
parecer.
government. While I think the expansion of powers was necessary, and it was clearly
popular, it also normalized a cynical attitude regarding the use and abuse of the
Supreme Court.
lit, es un horror que todos se organizaran para cagarse en la consti.

This is important: when it is too difficult to change the Constitution, people begin to
sabotage the Constitution. When the Constitution is unable to keep up with an
urgent need for change, people do not remain blindly loyal to an out of date
Constitution. Instead, they find ways around it, and in doing so they undermine the
very idea of constitutional government. The sabotage can take many forms:
sometimes people simply start to ignore some part of constitution, as if it doesn’t
exist, other times people come up with bizarre and clearly bad-faith interpretations
of the text, other times they resort to corruption, bribing officials to get them to
ignore the text, or other times the public pressures the political system so that the
political system then goes to war against the independence of the constitutional
court — this is what happened in the USA in 1936/1937.

Any law, whether a Constitutional commandment or a normal ordinance, if enforced

after the public has decided against the it, only serves to bring the political system
into contempt. As a trivial example, consider that in the USA, by the 1970s, the public
had mostly decided that it was okay to smoke pot, but the political system took
another 50 years to catch up. Therefore 50 years went by during which people got in
the habit of ignoring the law -- and this helped increase the cynicism people had
about the political system.

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que miedo y que mierda. esto es a lo que me referia que me hace tenerle tanto asco a los 2/3 ahora. es una mierda la paralisis.

A society is an organic thing, and organic things are forever changing. In any society
there is a constant pressure for Constitutional change, and the pressure intensifies
during a crisis. If you have water in a system of pipes and for some reason the
pressure increases too much, a leak will eventually develop, and it will appear
wherever the seals are weakest. Likewise, the pressure for Constitutional change will
appear wherever the political system makes it easiest. So in the USA, since the 1930s,
nearly all changes to the Constitution have come from the Supreme Court, because
that is where it is easiest to push through an amendment. To be clear, this is not the
official way to change the Constitution, but because it is the easiest way to change
the Constitution, it's become the only way that anyone attempts to change the
Constitution. For instance, the effort to give women a right to an abortion was
achieved through the Supreme Court, and the effort to end that right is also
happening through the Supreme Court. Neither side attempts to resolve the issue by
way of an official amendment.

It is important to remember that even those people who oppose an enlarged

government still recognize the need for perpetual change in the legal system.
Consider this passage by Friedrich Hayek, who was perhaps the greatest of the 20th
Century libertarian philosophers:

""""

To create conditions in which competition will be as effective as possible, to

supplement it where it can not be made effective, to provide the services which, in
the words of Adam Smith, "though they may be in the highest degree advantageous
to a great society, are, however, of such a nature that the profit could never repay the
expense to any individual or small number of individuals" -- these tasks provide,
indeed, a wide and unquestioned field for state activity. In no system that could be
rationally defended would the state just do nothing. An effective competitive system
needs an intelligently designed and continuously adjusted legal framework as much
as any other.

""""

* page 45, The Road To Serfdom, by Friedrich Hayek.

A few of the results of the crisis of the 1930s:

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1.) The Supreme Court became, for all practical purposes, the committee for
amending the Constitution. Since the official process was too slow, and since all
societies need constant Constitutional change, the pressure for change built up and
busted out at the weakest spot, which turned out to be the Supreme Court.

2.) The Federal government expanded its authority based on a manifestly bad-faith
interpretation of the Interstate Commerce Clause. This normalized bad-faith
interpretations of the Constitution.

3.) The USA recovered from the Great Depression and once again became a
successful society whose economic and cultural energy offered inspiration to the rest
of the world. Thanks in part to the consolidated power of the Federal government,
the country was able to undertake massive investments in infrastructure and science,
as well as building the world's greatest system of universities. In other words,
expanding the powers of the Federal government was done in defiance of the written
Constitution, but good things came from those expanded powers.

In the USA there tend to be two strongly divergent ways of viewing the results of the
1930s. Some libertarians argue that the Constitution was suspended in 1936 and the
USA has had a perpetual Constitutional crisis since that time. They feel strongly that
the expansion of Federal power since 1936 has been illegal, and that we'd be better
off if we went back to the way things had been previously.

Meanwhile, progressive forces have argued that the Constitution should be seen as a
living document, and since the 1930s their view that the Constitution is plastic and
should be molded to fit current circumstances has been the dominant view. This
general view has been expressed by Judge Richard Posner:

-------------------------------------

“A Constitution that did not invalidate so offensive, oppressive, probably

undemocratic, and sectarian a law [as the Connecticut law banning contraceptives]
would stand revealed as containing major gaps. Maybe that is the nature of our, or
perhaps any, written Constitution; but yet, perhaps the courts are authorized to plug
at least the most glaring gaps. Does anyone really believe, in his heart of hearts, that
the Constitution should be interpreted so literally as to authorize every conceivable
law that would not violate a specific Constitutional clause? This would mean that a
state could require everyone to marry, or to have intercourse at least once a month, or

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it could take away every couple’s second child and place it in a foster home.... We find
it reassuring to think that the courts stand between us and legislative tyranny even if
a particular form of tyranny was not foreseen and expressly forbidden by framers of
the Constitution.”

----------------------------

I personally think that the use of contraceptives should be a personal decision, and
I’m glad the Supreme Court felt the same way. But this is a Constitution that
enforced legalized slavery for 77 years, the clearest violation of human rights that any
of us can imagine. I’m curious if Judge Posner thinks the Supreme Court could have
simply abolished slavery? Was the 13th Amendment necessary, or not? Was the Civil
War necessary, or could the whole issue have been resolved by the Supreme Court?
Does Judge Posner believe there are any limits to what the Supreme Court can
decide? Exactly how plastic is the Constitution?

Here Posner takes for granted what's become the default view of a how a
Constitutional democracy is supposed to defend the rights of all: the legislature will
often pass laws that are cruel and oppressive, and only the courts can defend the
rights of the people. This raises a few questions. Why are legislatures so often
oppressive? Why are the courts the correct institution to defend the rights of all?
What keeps the legislature from perverting the courts towards oppressive goals? If
the independence of the courts is what allows them to focus on the rights of all, then
is there a way to make the legislature independent in the same way, so that every part
of the system is respectful of the rights of the people? Demodexio will come back to
these questions. ah mirá como te la dejo picando
igual creo que nunca mas habla de esto. o por ahi se refiere en conjunto a las demas ideas que tiene.

Libertarians argue that the expansion of Federal power was illegal and progressives igual, nos
re fuimos
argue that the expansion of power did great good. Both views are clearly true. The de tema

expansion of Federal power since 1936 was justified by grossly twisting the plain
meaning of the Constitution, and the expansion of Federal power has clearly been a
good thing for the country, except for the damage that it's done to the legitimacy of
the concept of obeying a written Constitution. Ideally, the USA would have passed a
Constitutional amendment, back in 1933, that would have authorized the expansion
of Federal power. But that was politically impossible then, and it remains politically
impossible now. The agricultural states continue to cling to a nostalgic dream in
which the 1800s never really ended, modern life never became so complex, and

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therefore (they wish to believe) the states can continue to exist as almost independent
sovereign nations. This nostalgic dream has done endless harm to the USA. Or
rather, wanting to hold onto to the old structure of the USA, without doing any work
to shore up the foundations, has left us living in a structure with a dangerously
uncertain stability.

What are the real risks facing the USA? We've reached the point where 5 people on
the Supreme Court can amend the Constitution however they wish. Some of the
dangers have been predicted for decades, yet it was only when Trump was President
that the real dangers became clear. The Supreme Court can allow distortions in the
voting process, it can allow every effort to suppress the vote. In Georgia and Texas
governments lead by Republicans now plan to have only a single voting place in
dense neighborhoods that previously had a dozen voting places -- this is a clearly
biased attempt to suppress the vote in some neighborhoods, but the current Supreme
Court has allowed it. As we said above, the real problem with having an amendment
process that is too difficult is that society eventually develops an unofficial method
that is too easy. And so the USA might well end up in the same situation as Hungary,
with a party aiming at an authoritarian takeover, and with a Court that amends the
Constitution to make that takeover permanent.

So we have just reviewed two examples, Hungary and the USA, in one it was too easy
to change the Constitution, in the other it is too difficult. That raises the question,
what is the correct way to change the Constitution?

I will answer tomorrow, in part II of this essay.

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