If It’s Not Broke...

Bill Neinast


If it's not broke, don't fix it.  That wisdom is frequently overlooked or forgotten.

One who wants to fix something that is not broken is University of Texas Law Professor Sanford Levenson.   He wants to fix the U.S. Constitution and discusses why and how in “Refreshing the Constitution” in the current issue of that school’s magazine.

He notes that the Constitution is frequently treated as a sacred text and that, “Questioning its logic is off the table.  But is this really what the Founding Fathers expected or even intended?  In a word, no.”

The professor’s concern is that the Congress has become so dysfunctional that it  rarely passes any meaningful legislation.  In his opinion, the federal government is now composed of four branches--the House, the Senate, the President, and the Supreme Court.  Each branch can and does nullify actions of the other branches. In his words, “we have a political system that functions to make passing legislation extremely difficult.”

He recommends that the states act under Article V of the Constitution and call for a Convention to revise or rewrite the Constitution.  He envisions such a convention lasting for two years with hearings throughout the country.  He does not, however, recommend or suggest any particular direction for a new Constitution.  He leaves that to the public’s reaction at the various hearings.

Retired Supreme Court Justice Paul Stevens also wants to fix the Constitution. His  latest book is “Six Amendments: How and Why We should Change the Constitution.”

In an interview, Stevens admitted that the book is his expression of sour grapes.  The six amendments he proposes would overturn the effects of court decisions from which he dissented.  Two of the amendments relate to gun ownership and the others abolish the death penalty, make it easier to limit spending on elections, and rein in partisan drawing of electoral districts.

On a personal note, abolishing the death penalty is one of my goals.  Fiddling with the Constitution, however, is not required.  The Congress and state legislatures can do so with simple legislation.  Eighteen states and the District of Columbia have already done so.

Part of Professor Levenson’s motivation for redoing the Constitution is his belief that our present system is not what the Founding Fathers expected or intended.  In my opinion, however, the dysfunction that concerns Levenson results in exactly what those men meeting in Philadelphia several centuries ago intended.  As the arguing among members of Congress and the President blocks the passage of any legislation, we get a limited federal government unable to meddle in the affairs of the states and people.

This belief in a limited federal government was expressed specifically in the Bill of Rights, the first ten Amendments of the Constitution.  The tenth amendment specifies, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The Founding Fathers did not intend to have limited government through dysfunction.  They subconsciously relied on the travel and communication facilities of the time there. Those limited facilities would keep Congressmen and Senators at home with the people and legislatures they were elected to represent.  Without Congress being in session around the clock, the elected representatives  would know and understand what their constituents, not lobbyists, wanted or needed.

An indication that the Constitution is working just as the Founding Fathers planned is in the limited number of amendments of that document.  In the 222 years since the ten amendments known as the Bill of Rights was added in 1791, only 18 amendments have been adopted. 

The 18th Amendment that established prohibition was the only one recognized as a mistake.  The mistake was recognized by its repeal with the 21st Amendment.

Another mistake may be the 17th Amendment adopted in 1913 to have Senators elected by the people.  This may be the only one to directly oppose the beliefs of the Founding Fathers. 

As originally established, Representatives were elected by the people. They were to represent the people.  Senators, however, were elected by the state legislatures and were to represent states’ interest.

Now we have two bodies or chambers competing to represent “the people” and that may be a major factor in the current dysfunction.

Now compare the 18 amendments of the U.S. Constitution with the 483 amendments of the 1876 Texas Constitution.  If the U.S. Constitution is ever considered for a major workover as suggested by Levenson and Stevens, the Texas Constitution would not be a good model to follow.

Two of its provisions, however, would be worthy of consideration for adding to the federal Constitution.  Limiting Congressional sessions to only five months every two years and a requirement for a balanced budget might go a long way to curing a dysfunctional government.

So here’s the perspective. 

In the words of Will Rogers, “The difference between death and taxes is death doesn’t get worse every time Congress meets.”


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