Sunday, March 11, 2012

James Madison: Frequent Constitutional Amendments Are Bad Idea

Frequently referring “constitutional questions to the decisions of the whole society” is a bad idea, wrote James Madison in Number Forty-Nine of the Federalist Papers.
“Every appeal to the people would carry an implication of some defect in the government…,” Madison said.

Much more important, Madison said, is that frequent incremental amendments “would not answer the purpose of maintaining the constitutional equilibrium.”

The first ten amendments to the United States’ Constitution—the Bill of Rights—resulted from a deal to get states to approve the constitution. Since the ten passed, only 17 more amendments have made it to the constitution. Two of those, implementing and removing prohibition, cancelled one another.

I wonder what Madison would think of New Mexico’s constitution.

Our constitution started in 1910 with 21,227 words. By 1949 it had been amended 30 times, according to “Governing New Mexico.” The first amendment passed in November 1911. Before statehood!

These days, one or two amendments seem to pass every general election, meaning every two years. The constitution is up to 36,683 words, according to Word’s count of my copy downloaded from the Secretary of State.

“The desire to protect the document from radical changes,” “Governing” says, motivated the constitutional convention to create onerous amending procedures for four sections which became know as the “unamendables.” Article 19 specifies amendment procedures and then says, Oh by the way, these four sections get special treatment. They are Sections One and Three of Article VII on elective franchise, and Sections Eight and Ten of Article XII on education.

New Mexico First Town Hall and the Constitution

The unamendables became part of my mental constitutional woodwork a few years ago. Recently, a friend pointed out just how strange and inappropriate it is to have two amendment criteria. My friend is correct.

This being lost in the woodwork I think may explain why the talented and totally well-intended folks putting together the coming New Mexico First Town Hall ( failed to incorporate the constitution into the background document provided to participants. They are used to the present situation.

As a theme, the town hall uses these words, “Learning from our past. Planning our future.” The notion of leaving the constitution out of “learning from our past”—even if it wasn’t a mess—is beyond me.

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