It’s Debatable: Should U.S. replace its current Constitution?

This week, Arnold Loewy and Charles Moster debate whether the United States should replace its current Constitution with one similar to that of the European Union. Moster is a former litigation attorney in the Ronald Reagan and George H.W. Bush presidential administrations who has offices in Lubbock, Amarillo, Midland/Odessa, Abilene and Georgetown, and Loewy is the George Killiam Professor of Law at Texas Tech School of Law.

 

Arnold: United we stand

Our debate topic today is whether the United States should scrap its current Constitution and reconstitute itself in the mold of the European Union. Of course, we tried that once with the failed Articles of Confederation. Nonetheless, Charles believes that was then and this is now and that today it would work. Suffice it to say, I disagree.

The first thing that converting us to a European Union-type system would be to change the states’ status from quasi-sovereign to fully sovereign. This presumably means that a state could withdraw from the union whenever it felt like it (e.g. Brexit). I don’t suppose that this will bother Charles all that much since in a previous debate, he argued that states should have the right to secede.

Of course, the United States government as we know it would be relegated to the scrap heap of history. There might still be a person with the title of president, but the office would be very different from what we have now. I doubt that we would retain a Senate and House of Representatives, although perhaps we would maintain some sort of paper tiger government in Washington.

Most importantly, the United States military forces would be no more. Just as the European Union retains no military, each member state would have its own fighting force. Texas might do fairly well should it declare war with Mexico (perhaps a latter day “Remember the Alamo”), but do we really want Wyoming to have to defend itself from outsiders. For that matter, what if Colorado decided it wanted to use its superior forces to conquer Wyoming?

I suppose Texas could enter a joint defense treaty with New Mexico and Arizona to fight Mexican immigration. Heck, maybe they could even build a joint wall with Mexico, though if the truth be known, I would hate to have my tax dollars used for that purpose.

The loss of the United States (as we know it) strength on the world stage frightens me. While I do not necessarily agree with every step President Trump has taken in regard to North Korea, I hate to think of leaving a single state, say Hawaii, in the position of having to defend itself from North Korea. Of course, I suppose that Hawaii could enter a treaty with the other 49 states to defend each other, but we still would not have the unified might of the United States military as we know it.

To be sure, Russia seems to have survived the breakup of the Soviet Union, but I do not believe that we have any one state in our great union equal to Russia in size or strength. But united, we are superior to Russia (at least to the extent that our most prominent government officials are not selling out to them).

The thought of breaking up our country into 50 smaller governmental units connected only by a loose confederation is not appealing to me. I see very little to be gained and much to be lost. Quite frankly, it would be a dangerous experiment whose time has not come.

Charles: Reorganization solves national debt

Let me start off by qualifying our topic of debate. Yes, I advocate reconstituting our government based on the model of the European Union, but I would also borrow features from our original Articles of Confederation, which allowed for the delegation of some functions to a federal instrumentality. Unlike the Articles of Confederation, I would give the newly reconstituted federal government substantial powers but only as to narrow delegated functions such as national defense, treasury and transportation. I would also require the states to fund this limited federal government but abolish the IRS, which was never contemplated by the Constitution as drafted. This would cure the defects in the original Articles of Confederation.

In most critical areas, the U.S. government has not served the people well at all. The massive expansion of the federal bureaucracy commencing at the turn of the 20th century accelerated at a geometric rate under FDR and his New Deal policies. Suffice it to say with a national debt of $20,622,184,000 as of Feb. 2 (or $170,352 owed per taxpayer!), the feds have not been a good steward of our money. We are bankrupt as a nation and cannot continue on this insane path of insolvency. At some point in the near future, the interest payments on the debt will gobble up all available funds for other legitimate government spending.

A model transferring the majority of government services to the states would eliminate the national debt virtually overnight and allow the individual states to better utilize resources for local interests. The typical rejoinder is that our regulatory framework would collapse overnight as the EPA, Department of Education, Department of Commerce, Federal Trade Commission and SEC would be no more. This is ridiculous as every state, including Texas, has its own parallel state agencies which provide the identical functions from securities regulations to banking to environmental control. Most of the funds sent to Washington are wasted, and I know that from my personal experience as an agency attorney under two Republican administrations.

With regard to national defense issues, I agree with Arnold. My caveat to the EU would be to provide for the continuation of a national defense at a federal level. A new governmental framework would need to be established wherein “all” powers would be delegated to the individual states with the exception of a narrow array of functions requiring federal control. National defense would be one such area. I would also opt for the continuation of the Department of Treasury and use of a common currency to facilitate trade in the what I would term the “New American Union” — similar to the Euro. Additionally, the elimination of tariffs and free trade would be important to maintain. It would be a fascinating topic to discuss how the limited federal government would interplay with the new American union sovereign states. Borrowing from the latter ancient Roman republic, it might be possible to elect presidents representing major geographic regions and empower them to act by consensus in matters of national security effecting the new American union. A potential check and balance would be to provide for a shorter election cycle (perhaps two years akin to the members of the House) and ability to recall the presidents by public referendum to assure accountability.

On the flip side, it would be fascinating to watch the competitive forces manifest among the states as they decide how to better attract workers and enhance the lifestyle of their residents. States would be free to enact comprehensive health care or not depending on their priorities and need for labor. I would expect great innovations in the development of new drugs and technologies, aviation and space exploration, and certainly education which should always have been a statewide endeavor.

A bankrupt nation which has usurped virtually every critical function of the original states is not worth preserving in its current form. We need to experiment with governance and to summon our greatest minds to a new constitutional convention to consider these monumental issues.

Arnold: Now we’d have regional goverments?

Well, I am glad to hear that contrary to my worst fears, Charles does not intend to dismantle the Army and make us like Europe in that regard. But as for the rest of his brave new world (or should I say old since he not only wants to go back to something akin to the Articles of Confederation, but to the ancient Roman republic which he described as a failure in our last debate), I have considerable doubts as to the viability of his proposal.

I cannot imagine what his regional presidents would look like. How on earth would we assign a region? Would Texas be paired with New Mexico? Oklahoma? Arizona? Louisiana? Isn’t the division of power between the states and the federal government enough? Are we now going to have three levels of government? State, regional and federal?

Surely it is a pipe dream to believe that these presidents will act with consensus. Let’s assume that there are eight regions (if Charles wants to pick a different number that is fine — it’s his proposal). How on earth can we expect presidents representing eight different regions to reach consensus? Heck, sometimes the current president can’t even reach consensus with himself.

Next I wonder how are we going to ascertain how much each state must contribute to run the federal government under Charles’ pipe dream? Will it be based on population, wealth or something else? Surely it could not be each state contributing the same amount (kind of like the U.S. Senate). I surely cannot imagine Wyoming being expected to contribute as much as California.

We passed the 16th Amendment allowing the income tax for a very good reason. And if we try to implement Charles’ plan for financing the federal government, we would see how important the income tax is as a method of financing the federal government. Not that anybody likes to pay income tax, but I doubt that Charles’ plan will result in significant savings for the taxpayer who will now have to pay vastly increased taxes to the state so that it can take over many of the federal functions plus additional money so that the states can finance the federal government. This is not my idea of efficiency.

The competition among states that Charles thinks would be “fascinating to watch” is precisely the reason that we have a commerce clause. Without the protection of a commerce clause, a race to the bottom is almost inevitable. I could envision a poor state that is experiencing a major decline in industry deciding to allow child labor. Once state A allows child labor which results in the return of industry, perhaps states B,C and D its neighbors will feel compelled to follow suit. But if Congress could (as it currently can) simply say: “No child labor in the United States” that would be the end of it.

I do not mean to say that I am opposed to all forms of state experimentation. I agree with Justice Brandeis that it is a happy incident of federalism that a single state can act as “a little laboratory” in experimenting with new laws. But there have to be limits to this experimentation (e.g. child labor) and Charles’ proposal does not take that into account.

Finally, I do not see how his proposal “would eliminate the national debt virtually overnight.” His proposal would obviously leave the federal government financially bereft except for what is absolutely necessary for its very limited powers. How on earth will it have enough money to pay off $170,352 for every (former) United States taxpayer? The short, but complete answer is that it wouldn’t.

So, while Charles might be willing to scrap our great United States government for a half-baked confederation, I am not.

Charles: It’s an experiment in American democracy

I am reminded of an oft-cited definition of insanity, which is doing the same thing over and over again and expecting a different result. It is not debatable that our nation is insolvent. In fact, while waiting for Arnold to submit his response to my debate content for this column, the Treasury Department reported that the U.S. is set to borrow $1 trillion to meet its spending obligations which is an 84 percent increase over last year. Our great nation just like the Titanic is rapidly descending into a sea of debt. If we continue to kick the can down the road to future generations, our country will run out of money and be unable to carry out any of its functions.

Moreover, Congress has proven itself incapable of addressing the severe debt issues. Part of this problem is caused by the pursuit of partisan interests and inability of reach consensus. However, I believe the major factor which has led to insolvency is systemic. It was not until the passage of the 16th Amendment in 1913 which allowed for the establishment of the IRS that our national debt skyrocketed to its current levels.

Arnold is incorrect that I am touting a potential solution which failed based on the ancient Roman model of multiple presidents. As discussed in the prior column, the fall of Rome resulted from the decline of universal values and decay of the culture itself. I am simply throwing out a suggestion which could be considered within the framework of a new constitutional convention. Obviously, we would want an odd number of regional presidents configured so that consensus could always be reached like the operation of the U.S. Supreme Court.

With regard to the taxation burden of this new American union, various approaches can be debated. It may make the most sense to assess the taxation based on the relative population of particular regions or states. This apportionment formula was proposed in the original constitution before it was repealed and replaced by the 16th Amendment. Critically, the financial obligation would only relate to a narrow array of federal services and thus be less of a financial burden to taxpayers. Keep in mind that the vast federal bureaucracy would be abolished, leading to massive savings.

Finally, I am not advocating a return to child labor or similar abuses of the early industrial revolution. I would suggest that a new Bill of Rights be proposed which would update the original document to safeguard the rights of our citizens and made applicable to the states of the new American union.

The point of all this is to be imaginative and stop polishing the brass on the decks of the Titanic. Let’s open a dialogue and discuss new ways to further perfect the great American experiment in democracy.

 

More

Other Views: Washington could stand a correction of its own

Washington could stand a correction of its own

Read more