America Needs - Transformation (USA - Glen Reynolds)

America needs a transformation: Column

Glenn Harlan Reynolds 3:08 p.m. EDT August 12, 2013

We may need more than a few amendments to make the U.S. into a country that works for everyone.

 

Story Highlights

• A lot of the problem we have now comes from not following the constitution we've got.
• There is sense that there are two sets of rules, one for Washington "insiders" and another for everyone else.
• The structural shifts in our government have empowered insiders and the expense of the citizenry.

So how are things going for America? The economy is stagnant, the government seems to be spying on everyone, the connected are getting "waivers" while the unconnected face the full force of the law, and all sorts of people are unhappy and calling for change. Some
are even calling for constitutional change.

In Mark Levin's new book, The Liberty Amendments: Restoring the American Republic, the attorney and talk-radio host proposes a range of constitutional fixes, ranging from term limits to repeal of the 17th Amendment to a provision -- I really like this one -- moving Tax Day from April 15th to "the day before the date set for elections to federal office," among others.

Nor is Levin the only one calling for sweeping constitutional change. A couple of years ago, Harvard Law School held a conference on holding a new Constitutional Convention -- you can see my keynote on video here -- in which people from the Tea Party right and the MSNBC left got together, and got along surprisingly well. (Like I said, a lot of people are unhappy.) So is it really time to rethink the United States Constitution?

Well, maybe. Proposing amendments is always fun, of course -- my favorite proposal is for a House Of Repeal, a third house of Congress whose only power would be to repeal laws passed by the other two.

Right now, there's nobody in the federal government who has an institutional interest in getting rid of programs. A house made up of people who could run for re-election only on what they've undone would change the dynamic pretty dramatically. And with bloated government and so many criminal laws that even the federal government can't count them all -- literally -- the virtue of something like this seems pretty obvious.

On the other hand, a lot of the problem we have now comes from not following the constitution we've got. We have so many administrative regulations because a core constitutional principle -- that only Congress can legislate -- has been interpreted in ways that allow unelected bureaucrats to adopt regulations carrying the force of law with Congress almost entirely out of the loop.
Overcriminalization at the federal level is a problem because courts have interpreted Congress's powers so broadly that almost anything can now constitute a federal crime. And the debt is skyrocketing because deficit spending separates the pain of taxation from the pleasure of paying off constituencies.

Each of these problems could be addressed by specific constitutional amendments -- many of those in Levin's book, or discussed at the Harvard conference -- but the underlying problem is tougher. One way or another, the country tends to get the kind of government it deserves.

And that gets to what I think is the real problem lying behind all of this enthusiasm for constitutional change: a sense that there are two sets of rules, one for the "insiders" in Washington and their (frequently subsidized, or bailed-out, or protected) corporate allies, and another for everyone else.

It's a situation that has led to comparisons withThe Hunger Games, where the folks in the Capitol City live high while the provinces starve. People get elected to Congress and somehow retire as multimillionaires; they serve for a couple of years at the White House and leave for million-dollar salaries. And wherever they work, they tend to have an inflated opinion of their own importance, and a somewhat contemptuous opinion of ordinary Americans.

You can address this problem with constitutional amendments, and I think that many are worth considering: The structural shifts in our government have indeed empowered insiders and the expense of the citizenry. But underlying these shifts is a deeper problem of values, one that I doubt can be fixed by passing a few amendments. Perhaps, to use the words of a once-promising presidential candidate, we need to "fundamentally transform" America. Into, you know, a country that works for everyone, not just the fat-cats at the controls.

Glenn Harlan Reynolds is professor of law at the University of Tennessee and the author of The New School: How the Information Age 
Will Save American Education from Itself. He blogs at InstaPundit.com.