Four Amendments

Bruce Ramsey proposes:

The behavior of Donald Trump and some of his opponents in the 2020 campaign suggest that several changes are needed to the Constitution. Here are four ideas of mine. They are libertarian only in the general sense that they limit the president’s power. My intention is not radical or utopian, but practical — to offer ideas that might have some chance of adoption. They are:

1. Congress may remove the president by a vote of two-thirds of both chambers.
2. Congress may regulate the president’s pardon power by legislation, provided that the president shall not pardon himself or members of his family, and Congress shall have no authority over individual cases.
3. The Supreme Court shall have no more than nine members.
4. The United States shall not go to war unless authorized by a two-thirds vote of both houses of Congress, provided that the president may direct the armed forces to respond to an attack or imminent attack on the United States, its possessions, its officials, its armed forces, its treaty allies or its citizens on the high seas. In such response, acts of war must cease within 30 days absent authorization of two-thirds vote of both houses of Congress, provided that US military forces may defend themselves.

The first proposal is most directly related to Donald Trump. I realize that some libertarians voted for him because they agreed with his economic policy — some of his economic policy — and because he kept the country out of war. I appreciated some of the things he did. But policy is not everything. If all we talk of is policy, we are assuming good character as a given, and it is not. Donald Trump is a man of poor character, a coarse, egocentric, bullying, grandiose and fantastic liar. He was thoroughly unfit to be president of the United States.

Consider a few of the things he did. Trump attempted to suborn the FBI. He tried to get it to call off its investigation of the Russian government’s interference in the 2016 elections, an interference that had benefited him personally. Trump called FBI director James Comey to an intimate dinner at which he demanded personal loyalty. When Trump didn’t get the kind of loyalty he wanted, he fired Comey, whose loyalty was to the institution and the nation.

Donald Trump is a man of poor character, a coarse, egocentric, bullying, grandiose and fantastic liar. He was thoroughly unfit to be president of the United States.

On July 25, 2019, Trump was on a phone call to President Volodymyr Zelenskiy of Ukraine. Trump had temporarily blocked, then authorized, $400 million Congress had voted in military aid for Ukraine. On the call, Trump asked the Ukrainian president to do him a favor — to investigate what former Vice President Joe Biden did in protecting his son Hunter, who had been named a highly paid director of the Ukrainian gas company. When the story got out, Democrats accused Trump of trying to arm-twist a foreign president to dig up dirt on his probable opponent in the 2020 elections. That was the phone call that led to the first impeachment of Trump in December 2019.

What Trump had done was wrong, not because he was besmirching an innocent man, as the Democratic media so confidently asserts, but because Trump was conducting US foreign diplomacy to benefit himself personally. I argued here that Trump’s self-dealing deserved to be exposed and condemned, but didn’t rise to the level of “high crimes and misdemeanors” required for impeachment. In hindsight, I wish the Senate had removed him. A problem of impeachment is that it is a political instrument made in the form of a criminal indictment. That makes it event-driven. The articles of impeachment describe specific transgressions, and in Donald Trump’s case, the problem was wider than that. The problem was the man himself.

This is most clearly shown in his attempt to nullify the 2020 elections. Because of the coronavirus, there was a push for states to expand voting by mail rather than have people standing in queues. Trump declared that voting by mail was an invitation to fraud. He made enough statements warning of a fraudulent election that a reporter asked him whether he would accept the results if he lost. His answer was, “We’ll see.” It was an alarming answer; it was also alarming that the question needed to be asked at all. Then, after the November election, Trump did refuse to accept the results of the election. He declared, and continued to declare to his last day in office, that election fraud had deprived him of a landslide victory.

I argued then that Trump’s self-dealing deserved to be exposed and condemned, but didn’t rise to the level of “high crimes and misdemeanors” required for impeachment. In hindsight, I wish the Senate had removed him.

By all appearances, this was not so. The news — CNN, Fox, BBC, all of them — showed an election quite normal. In a country of 50 states, each handling its own election apparatus, which in some cases differed from county to county, there were bound to be irregularities. But they were minor, most of them piddling — arguments about how many observers were allowed to watch the workers opening ballots, and how many feet away they were required to be. In Pennsylvania, a handful of absentee voters brought suit because in some counties, voters who had spoiled their ballots were allowed to correct them, and the complainants were in counties that didn’t do that. The complainants, who had screwed up their ballots by not following instructions, insisted that their problem be solved by throwing out the entire vote of the citizens of Pennsylvania.

This was one of the many cases filed by President Trump’s attorneys to overturn electoral votes in states he lost. His attorneys did their loyal best. All of their lawsuits failed. They failed quickly, not after some long slog through the courts, because the cases were without merit.

The honorable thing, for the good of the country and its constitutional order, was for President Trump to concede defeat. But he is not an honorable man. On January 2, 2021 — after Joe Biden had been elected president in the Electoral College — Trump called Georgia Secretary of State Brad Raffensperger, that state’s director of elections. In an hour-long conversation full of bluster and bullying, the president said, “I just want to find 11,780 votes.” By asking Raffensperger to “find” votes — in a box in his desk, maybe, or his back pocket — Trump was soliciting election fraud. He was trying to overturn a presidential election that he had lost.

And that wasn’t all. On January 6, 2021, the Senate was meeting to certify the results of the Electoral College. Vice President Mike Pence would be presiding. Trump called in Pence and demanded that he reject the electoral votes of several states. Trump told the Vice President he could either be “a patriot or a pussy.” As with FBI director Comey, the president was demanding unconditional personal loyalty rather than loyalty to the office and the nation.

Trump did refuse to accept the results of the election. He declared, and continued to declare to his last day in office, that election fraud had deprived him of a landslide victory.

When Pence refused to buckle under, Trump egged on a mob of supporters by saying “if you don’t fight like hell you won’t have a country anymore.” Thus inflamed, the mob went on to riot, engaging in violence against police, pushing their way through the doors and windows of the Capitol, trashing senators’ offices and invading the Senate chamber. They shouted threats of violence against the vice president, who had fled. During this riot, the National Guard was ready to act but strangely didn’t. Trump’s duty was to protect the Capitol and the people in it, including his vice president. But the invaders were his people, flying his flags and beating on the cops in his name. They were at the Capitol because Trump told them that his victory had been stolen, and because they believed him. Later he denounced their mayhem, but he did it under pressure, without conviction or grace.

As I write, Trump has been impeached and is up for trial in the Senate even though he is out of office. I hope he is convicted and loses his right to run for any office again. But I am also struck by the inadequacy of the proceedings against him.

The first remedy, offered immediately after the Capitol riot, was removal of the president by the 25th Amendment. That amendment was put into the Constitution to deal with medical incapacity, as was the case for practically a year with President Woodrow Wilson. Because it requires the action of the vice president and a majority of the cabinet — all of them chosen by the president — it is useless as a political tool.

Impeachment-and-trial is the other remedy. The problem, again, is that its similarity to a criminal trial shrinks the decision to a judgment of events. Was the telephone call to the Georgia secretary of state a high crime or misdemeanor? Did Trump’s exhortation to the mob on January 6 meet the legal standard for incitement to violence? Was the event a riot or an insurrection? And all these questions are too narrow.

Thus inflamed, the mob went on to riot, engaging in violence against police, pushing their way through the doors and windows of the Capitol, trashing senators’ offices and invading the Senate chamber.

The real question is whether Donald Trump was fit to be president of the United States. That is a political question. What was needed was a useful was to make a political decision.

I concede that impeachment-and-trial allows for a political decision — but only if the senators disregard the specific articles of impeachment and decide the matter politically. What I am proposing is that Congress be given a mechanism to make an openly political decision to remove a president from office.

My proposal is for two-thirds of both houses to do this for any reason, any time. This dispenses with “high crimes and misdemeanors,” which invites legislators, many of whom are lawyers, to think of this as a criminal proceeding and bubble on about Due Process of Law. Forget that. This is not about that. This is about firing an employee.

The amendment is simple: one sentence. It sets a familiar standard: two-thirds and you’re gone. I don’t know how often it would actually remove a president. Probably not often enough. But I think it would instill a measure of fear in the president to mind what he or she did. And that would be a good thing.

The second proposed amendment, regarding presidential pardons, was suggested by all the handwringing about Trump pardoning himself, though in the event, he never did. Opponents spread the idea that he was selling pardons, and apparently, he never did. But I recall President Bill Clinton making some last-minute pardons that had a bad odor. And there was the matter of President Gerald Ford pardoning former President Nixon.

I don’t know how often it would actually remove a president. Probably not often enough.

I am no expert on this, but whenever the matter of pardons comes up, I keep hearing that the power is unlimited. Reading the Constitution, it does seem so. I think it needs to be limited in some way. No pardons for agents following the president’s direct orders? No pardons that would create an obstruction of justice? I don’t know. I would keep the details of such limits out of the Constitution, and leave it to Congress to define them, and change them as experience required. Of course, Congress would have to have two-thirds of both houses to pass such a law, if the president vetoed it.

The third proposed amendment, limiting the Supreme Court to nine members, is simple and obvious.

During the presidential campaign of 2020, Justice Ruth Bader Ginsburg died, and President Trump nominated Amy Coney Barrett. The Democrats demonized Barrett, and tried to block her confirmation by arguing that it was too close to the election and the Senate should wait until January 2021, when the new Senate — presumably Democrat — was sworn in. The Left made the further threat of appointing extra justices — packing the court — to offset the appointment of Barrett. Maybe a President Bernie Sanders, or a President Elizabeth Warren, would have done this. In one of the early debates, Joe Biden was asked whether he would do it, and he refused to answer. I don’t think people believed he would, and I don’t think now that he will, or that the current Congress would allow him to do it. But maybe a President Kamala Harris would, under a different Congress. I really don’t want to find out.

The fourth proposed amendment has nothing to do with Trump and everything to do with Franklin Roosevelt, Harry Truman, Lyndon Johnson, Richard Nixon, and all the rest of them up through Barack Obama. Essentially, it is an effort to put something like the 1973 War Powers Resolution into the constitution, which would end the practice of presidents declaring that resolution unconstitutional and ignoring it.

The proposed amendment would end the argument over whether Congress’ power to “declare” a war is the same as the power to start one. There is a whole literature on this, and I haven’t read most of it, and everything I say is, of course, arguable. But I have read, carefully, The Powers of War and Peace a 2005 book by John Yoo, formerly a lawyer in the Department of Justice, and since then a professor in the Boalt Hall School of Law at the University of California, Berkeley. Yoo is a defender of executive power. He argues that the power to declare war is the power to define a legal condition, and that the power to make war lies with the commander-in-chief — the president. Yoo argues that Congress’ ability to stop a war is the power not to fund it. He makes this argument skillfully, with many historical references. Theoretically his case makes perfect sense. But I don’t like it; I don’t like where it goes. I have been through enough of these wars (as a spectator) and have never seen a Congress with the backbone to say no to the demand to Support Our Troops. And I think: no, this won’t work. Congress needs to vote on this, with all votes recorded for posterity.

I don’t think now that President Biden will pack the court, or that the current Congress would allow him to do it. But I really don’t want to find out.

And further: the standard should be two-thirds of both houses, rather than the simple majority that been in the Constitution for the past two centuries.

Consider World War I, which was not about any existential threat to the United States. Germany had sunk US merchant ships that were carrying war goods to Germany’s enemies, which should have been expected. Germany had also made a secret offer to entice Mexico into attacking the United States — an offer that in hindsight appears almost comical. And the vote for war in 1917 was 82–6 in the Senate — 93% for war — and 373–50 in the House — 88% for war.

In World War II, after the air attack on Pearl Harbor, the vote for war with Japan was 82–0 in the Senate and 388–1 in the House. (The lone dissenter was Rep. Jeanette Rankin [R-MT], who had also voted no in 1917.)

In Korea, Congress never voted on the war. Truman got an OK for war from the United Nations Security Council when the Russians weren’t there.

In Vietnam, the equivalent of a declaration of war was the Gulf of Tonkin Resolution of 1964. Told that the North Vietnamese had attacked a US Navy ship in international waters — which it wasn’t — the House voted 416–0 and the Senate voted 88–2 to authorize military intervention in Southeast Asia.

In the war to eject Iraqi forces from Kuwait in 1991, the House voted 250–183 (57% for war) and the Senate voted 52–47 (52% for war).

In the Balkans war undertaken by NATO in 1999, Rep. Joe Biden of Delaware introduced a resolution to support US air and missile strikes against Serbia and Montenegro. The vote was 213–213, and therefore failed. President Bill Clinton went on with the attacks anyway.

For the conquest of Iraq of 2003, the authorization for use of military force was passed 296–133 in the House (69% for war) and 77–23 in the Senate (77% for war).

To sum up: two-thirds of both houses would have given us World War I, World War II, Vietnam and Iraq II, but not Iraq I or Kosovo. Korea is a question mark. Two-thirds is not an unreasonable standard.

I have been through enough of these wars (as a spectator) and have never seen a Congress with the backbone to say no to the demand to Support Our Troops.

War is easy to get into — too easy. I think the strongest objection to two-thirds of both houses is that it is not high enough — but I don’t think it’s possible to ask for a bar higher than that. I do note that getting the country into a war generally hasn’t worked out well for the party in power. The Congress may not vote against war, but the people tire of it. Democrats lost heavily in the House elections of 1918 (24 seats), 1942 (45 seats), 1946 (55 seats), 1952 (22 seats) and 1966 (47 seats) after Democratic presidents had led the nation to war. After the second Iraq war, Republicans lost 31 seats in 2006. Politicians should get the message from this history, but they don’t.

Regarding the other parts of the suggested amendment: I am trying to cover all the bases: big wars, little wars, threats of wars, et cetera, remembering also that the basic law should be simple. Congress needs to be involved in war more than it has in the past 75 years, but the president also needs to be able to act without authorization in time of crisis. Each requirement is a problem for the other, and there is no obvious solution. But we need to do better than we’ve done. Two-thirds of both houses would help.

* * *

Stephen Cox responds:

For many years Bruce Ramsey has been an able editor of Liberty and a delightful contributor — and he has also been my good friend. In the current instance, however, I have to say that Bruce has lost his perspective.

He hates Donald Trump. He considers him a boor. I won’t argue about that. But lack of perspective causes Bruce not to notice that this boor brought legal fairness to millions of college students and landowners, worked to ensure that millions of Americans were not thrown out of jobs because of fanatic environmental interventions, saw and appropriately reproved tyranny and aggression abroad, yet also worked to end American military interventions. His bluster gained effective cooperation from Latin American states to end chaos at the border and to create a new trade agreement fully satisfactory to Mexico and Canada. He strongly defended Second Amendment rights. He appointed the first openly gay person to a high position in government. He engineered an effective prison reform. He offered to stabilize DACA residents, in exchange for immigration reform (the Democrats refused). In opposition to the Deep State people within his own party, he identified, very accurately, the Deep State’s invasions of law and liberty.

This means nothing to Bruce. It’s not worth stating. What is worth stating is every charge ever made by a Democratic spokesman. One index of lack of perspective is his idea that it was outrageous for Trump to think that he might possibly, conceivably have been counted out by a suffusion of illegal votes in districts that have been owned for generations by Democratic machines and that have never even been remotely suspected of providing an honest count.

And if he was loyal to the FBI — since when do libertarians find such loyalty touching?

Another index is Bruce’s treatment of the “Russia” business. Let’s remember what the charge really was. The charge was that the election had been thrown to Trump, a Russian stooge, who had romped on a hotel bed in Moscow with two whores whom he paid to piss on the bed, because it had once been used by President Obama. It was a preposterous and wanton charge, fully indicative of the mentality of those who invented, propagated, and refused to brand it for what it was — an indecent attack. James Comey, head of the FBI, knew that the charge was false. But when invited by his boss, President Trump, to say publicly what he thought, he declined. Trump had every right to request Comey’s loyalty in this respect. He merely wanted him to tell the truth. Instead, Comey, a man of revolting self-obsession and self-righteousness, did everything he could to undermine his boss. But Bruce believes that Trump — the victim in this ridiculous and degraded affair — behaved with indecent rudeness toward poor James Comey, “whose loyalty was to the institution and the nation.” If Comey were so loyal to the nation, why didn’t he spare it the nightmare of years of furious quarrels and accusations? And if he was loyal to the FBI — since when do libertarians find such loyalty touching?

In the event, however, the virtually endless investigation backed by the spy agencies and secret police and the Democratic politicians showed, to their shock and horror, that Trump was not guilty. For Bruce, this is another thing not worth mentioning.

Obviously, I could go on like this, running down the list of charges Bruce levels, but who asked me? I’ll go to the constitutional amendments he proposes.

Congress may remove the president by a vote of two-thirds of both chambers.

This proposal arises from Bruce’s dissatisfaction with the Founders’ careful limitations on the impeachment power. They were well acquainted with England’s sorry history of Parliamentary impeachments of people Parliament disliked. They determined that this would not happen here. They insisted that a president be impeached only for “high crimes or misdemeanors.” Bruce’s idea is: “Due Process of Law. Forget that. This is not about that. This is about firing an employee.”

Yes, the president is an employee, but Bruce has mistaken who employs him. It isn’t Congress. It’s the people of the 50 states. That’s an important basis of our system of checks and balances. If the reply is, Congress is also employed by the people, I will ask, Why, then, not have the president elected by Congress? Because that’s just about what Bruce proposes. He wants Congress to be able to unelect presidents until it gets one it likes.

One answer is that the president and Congress are elected in different ways, reflecting different ways of gauging the voters’ will. That’s true, but a better answer is that a president who is always in danger of being thrown out by Congress, not because he did anything wrong, but because Congress, in its enormous wisdom, decides that he’s just not right for the job, is always going to be subservient to Congress. That’s not what is meant by division of powers or checks and balances or limited government.

It isn’t Congress who employs the president. It’s the people of the 50 states.

Consider the fact that, in Bruce’s proposal, the vote to remove the president would be the same as the vote to override one of his vetoes. So why just override the veto? Why not just kick the guy out? Bruce thinks this would instill fear in the president, and he gloats about that. I too would gloat if I didn’t reflect on the obvious problem of who is to instill fear in Congress? Eras of what Woodrow Wilson worshiped as Congressional Power have not been conspicuously favorable to the cause of liberty. If a tyrannical president is joined by a tyrannical Congress, as happened, for instance, in the days of FDR and LBJ, nothing much can be done. But it’s better odds when you have a president and a Congress who are at odds. That’s what the founders were thinking.

By the way, it’s yet another indication of a lack of perspective that Bruce seems to have completely forgotten all the non-Trumps who were, or are, worse than Trump. For boorishness and corruption, try LBJ. Try JFK, for God’s sake. Try the current Democratic leadership, about whom Bruce feels very little apprehension. It has been they, not Trump, who have nourished and proclaimed grand visions of Change in America, almost all of it change that libertarians rightly fear. But no, that’s not a concern, except in one instance, Bruce’s third constitutional proposal:

The Supreme Court shall have no more than nine members.

This, I believe, is the unique instance in which Bruce notices the grand designs of the Democratic Congress — a phrase that should strike fear in the hearts of everyone who believes in limited government. It’s a decent proposal. Do you think the Democratic Congress would ever, conceivably, in your wildest imagination, act on it?

Libertarians should probably welcome the existence of one place in our political domain in which liberty can be given to people for any or even no reason — the power of pardon.

Question: why not say simply that the Court shall have nine members? That would keep Congress from passing a law reducing the membership if by so doing it could prevent the president from filling a vacancy with someone not of the majority party in Congress.

But I think this is a good idea, in abstract, subject to my qualms, stated below, about multiplying constitutional amendments.

So, speaking of multiplying, here is Bruce’s second proposal:

Congress may regulate the president’s pardon power by legislation, provided that the president shall not pardon himself or members of his family, and Congress shall have no authority over individual cases.

I was expecting Bruce to dig up some instance in which Trump had pardoned someone for corrupt reasons, but apparently he couldn’t find one — which says something good about Trump. So what’s the problem? There isn’t any. Libertarians should probably welcome the existence of one place in our political domain in which liberty can be given to people for any or even no reason — the power of pardon. Clinton abused the power. Doubtless other presidents have abused it. So what? On the list of presidential offenses, this is number 878.

To maintain constitutional government, it is necessary not to amend the Constitution all the time. It sets a bad precedent, to say the least. Something that disgusts me a great deal more than abuse of presidential pardons is cruelty to animals. Shall I seek a constitutional amendment ensuring (supposedly) that it won’t happen again? Then shall my neighbors push an amendment to ensure stable funding for cancer research? To ensure that rapists and murderers are appropriately punished? To stipulate the amount of money that shall be used for the maintenance of highways? All those goals are admirable, aren’t they? And you, as a state legislator, will be pilloried if you vote against ratification of an amendment to address them. What! You don’t care about good roads? People die because of bad roads. So pretty soon the Constitution has 347 amendments, and more in waiting. This is the process that Bruce’s pardons amendment would encourage.

I do have what is called a substantive objection. The way in which Congress would get “authority over individual cases” is simply to rule out, temporarily or permanently, the whole class of people, one of whom the president is about to pardon. He wants to pardon the secretary of the treasury? Just pass a law saying he can’t pardon members of the cabinet. Or you could pass a law saying that he can’t pardon anybody, then revoke it whenever you get a president whom Congress likes.

My heart is with Bruce’s final proposal, the antiwar amendment:

The United States shall not go to war unless authorized by a two-thirds vote of both houses of Congress, provided that the president may direct the armed forces to respond to an attack or imminent attack on the United States, its possessions, its officials, its armed forces, its treaty allies or its citizens on the high seas. In such response, acts of war must cease within 30 days absent authorization of two-thirds vote of both houses of Congress, provided that US military forces may defend themselves.

I’m an old-fashioned isolationist, in the way that isolationism used to be understood — not as a religion forbidding any possible crossing of our borders, but as a prudential policy allowing America to strike when it needs to while refraining from entangling alliances, plans, projects, and “commitments.” The constitutional provision that it’s up to Congress to declare war has proven insufficient to keep the United States out of foreign wars, even those unauthorized by Congress. Bruce notices that; hence his proposal. He thinks that requiring a two-thirds vote might do the trick.

That’s what Congress does. It redefines “war.” And that’s what it will keep on doing.

Since World War II — and before it — presidents have undertaken literally countless acts of war. If Congress was going to prevent it, Congress would have prevented it. Senators and representatives are thinking, if they think anything, such thoughts as: “The boobs back home don’t want to see a declaration of war. It upsets them. And who knows, in a society in which there are more laws than people, what legal actions might be triggered by a formal act of war? Of course, I could vote to cut off some military funds, but then people would be furious that ‘the troops aren’t being paid,’ or some such thing. So why not call acts of war something other than acts of war, and then I don’t have to vote on it.”

And that’s what Congress does. It redefines “war.” And that’s what it would keep on doing if Bruce’s amendment were passed.

That’s it. I’ve had my say. I’m grateful to Bruce for bringing these matters up. They are dispiriting in many ways, though interesting to think about.

But say, speaking of a lack of perspective, why aren’t either Bruce or I proposing an amendment to balance the budget? That would be something that would really damage both presidential and congressional tyranny.