Skip to content

How to Amend the Constitution, If You Must

By popular demand from the old site, here is my standing list of amendments to the Constitution that wouldn’t suck.

1. Gay Marriage
The Congress shall have the power to establish a uniform rule of marriage, and uniform laws on the validity of public acts, records, and judicial proceedings related to marriage, and any privileges and immunities resulting therefrom.

Rather than imposing a permanent ban on federal or interstate recognition of gay marriage, this amendment would simply give Congress the legislative authority to do so. When the time comes that a majority of Americans in most states accept marriage equality, contrary federal legislation will be easier to reverse than a contrary constitutional amendment.

2. Naturalized Presidents
A foreign-born person who has been for twenty years a citizen of the United States shall be eligible to hold the Office of President.

3. Congressional Succession
Section 1. Congress may by law provide for vacating the seat of a member of the Senate or House of Representatives who is unable to discharge the powers and duties of his office.

Section 2. When vacancies happen in the representation of any State in the House of Representatives, the executive thereof may make temporary appointments until the people fill the vacancies by election as the legislature may direct. No appointed Representative shall be eligible for election to the House of Representatives during the term of the Congress to which he is appointed.

The Sept. 11 attacks revealed the vulnerability of Congress to physical attack; the need to elect new representatives to fill a quorum in the House means that Congress may not be able to exercise its legislative powers in a crisis for up to three months. Other proposals along these lines only trigger in the event of the death of a large number of House members, but that is needlessly complex. Instead, governors should have the power, which they need not exercise in normal times, to appoint a replacement representative who may not stand for permanent election to the seat. In addition, this amendment would deal with the threat of chemical or biological attack — or indeed natural pandemics — by granting Congress the power to vacate seats in the event of incapacity, thus preserving in all instances Congress’s ability to muster a quorum in a matter of days.

4. Expanding Congress, Fixing the Electoral College
Section 1. Representatives shall be apportioned among the several States so that the population of each Representative district is not larger than one-half the number of inhabitants of the least populous State. Each State shall have not less than two Representatives.

Section 2. Each State shall appoint a number of Electors equal to the whole number of Representatives to which the State my be entitled in the Congress.

Section 2 would become irrelevant if Section 1 were ever enacted; were the House of Representatives large enough to give each state at least two seats, the Electoral College would no longer be capable of awarding the presidency to the popular-vote loser. In addition, with a larger Congress, the cost of corruption would rise while the marginal reward would diminish, gerrymandering would be more difficult, and incumbents would be more vulnerable to challengers.

5. Flag Desecration
Section 1. The legislatures of the several states shall have the power to prohibit the physical desecration of the flag of the United States. The physical desecration of the flag of the United States shall not be a felony. The crime of desecration shall consist only in the physical destruction or defacement of the flag of the United States, or the display of a damaged or defaced flag of the United States, without regard to the intent or purpose of the destruction, defacement, or display.

Section 2. Congress shall have the power to prohibit the display, by the federal government or the governments of the several states, of flags, emblems, symbols, or insignia associated with current or past armed insurrection against the United States.

Section 3. Congress shall have the power to prohibit the display of flags, emblems, symbols, or insignia associated with foreign states currently or formerly at war with the United States.

Banning flag desecration is a bad idea, but if it must be done, this is how it should be done: By state laws, with strict limits to their extent and application, and with concomitant federal powers to ban the display of Confederate flags by state and local governments, which is itself a form of desecration of the American flag.