6 ms·

We don't have a mechanism to replace the Constitution. Short of getting all 50 states to agree on it (good luck) it's never going to happen without a civil war.

admax88q 7y ago
You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.
- jaywalk 7y ago
  When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want. I do agree that it should be extremely difficult, and it obviously is.
  - bdamm 7y ago
    Amendment process can effectively re-write the constitution, so I view that mechanism as the lowest bar.
mattkrause 7y ago
Aren't amendments basically that? Historically they've been pithy, but there's nothing stopping someone from proposing an Amendment that says "Article 1 of the Constitution is hereby replaced by.... Article 2 is hereby replaced by...."
brobinson 7y ago
38 states are needed to amend, not 50.
- jtbayly 7y ago
  But that doesn't preclude a civil war if the other 12 hate it.
  - snuxoll 7y ago
    And the other 12 would lose in a fight quite quickly, unless the entire US Armed Forces decides to side with them.
    - maximente 7y ago
      probably not, depending on which side CA lands. the western US is probably actually pretty well equipped to stave off the east from invasion. there's, grossly oversimplifying, hella mountains (north) and hella desert (south). not only that, but california feeds a lot of the nation. honestly, the 3 pacific coast states (CA/OR/WA) are probably pretty well equipped to secede and start their own country if they should see fit to do so. massive coastline, tons of food production, hugely powerful economy in cali.
      - kelnos 7y ago
        It still depends on the military. CA is certainly an economic powerhouse, but if the bulk of the military doesn't side with CA, I doubt groups like the National Guard (assuming they don't also support the federal gov't) or private militias (which, let's face it, are children with toys compared to the US military) will be enough to repel the US military, mountains and deserts be damned.
samatman 7y ago
On the contrary, Article V clearly states that it would require legislation on the part of two-thirds of the States, or passage by two-thirds of the House and Senate, and subsequent ratification by three-quarters of the state legislatures. This would convene a Constitutional Convention, which in turn could rapidly pass an Amendment rendering the existing Constitution null and void upon ratification, after which they could turn their attention to creating and ratifying a new Constitution. Not only would this be perfectly legal, I consider it an excellent idea.
- jaywalk 7y ago
  Color me embarrassed. Thanks for pointing this out.
  - CamperBob2 7y ago
    The effect would be the same. We would end up with a country of, by, and for the red states, for better or worse. It would be much better to focus on enforcing the existing Constitution, than to write a new one that would also end up being ignored when it proves the least bit inconvenient to the government. The world is full of "democratic" countries with lofty-sounding constitutions.
    - javagram 7y ago
      3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. In reality the country is divided enough that no wholesale rewriting of the constitution would ever be possible in the current political climate either way, using the amendment mechanism. Hence the importance of using the SCOTUS to reinterpret it one way or another instead...
      - CamperBob2 7y ago
        3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. I strongly disagree with your definition of "red states," given the electoral-vote map from the last Presidential election. In any case, my point is that rewriting the Constitution would have no beneficial effect anyway, because we'd just continue to ignore it.
chmod775 7y ago
> We don't have a mechanism to replace the Constitution. You mean besides Article 5 of said Constitution?
munificent 7y ago
The Constitution places no limit on the scope of amendments, so in theory Congress could pass an amendment that says "The text of the Constitution is replaced with _____."
- virmundi 7y ago
  An interesting question is can you remove the second amendment? “Shall not be infringed” implies any effort to limit the right is blocked.
  - sjy 7y ago
    Of course you can. “Shall not be infringed” would never be interpreted as overriding the explicit amendment procedure in Article V. Most countries have found easy solutions to the paradox of laws that attempt to restrict their own amendment: https://en.wikipedia.org/wiki/Entrenched_clause https://en.wikipedia.org/wiki/Entrenched_clause
- kej 7y ago
  >no limit on the scope of amendments There's one notable limit in that an amendment can't deprive a state of equal Senate representation: >...provided that ...[restrictions on amendments before 1808]; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

admax88q 7y ago

You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.

jaywalk 7y ago
When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want. I do agree that it should be extremely difficult, and it obviously is.
- bdamm 7y ago
  Amendment process can effectively re-write the constitution, so I view that mechanism as the lowest bar.

mattkrause 7y ago

Aren't amendments basically that? Historically they've been pithy, but there's nothing stopping someone from proposing an Amendment that says "Article 1 of the Constitution is hereby replaced by.... Article 2 is hereby replaced by...."

brobinson 7y ago

38 states are needed to amend, not 50.

jtbayly 7y ago
But that doesn't preclude a civil war if the other 12 hate it.
- snuxoll 7y ago
  And the other 12 would lose in a fight quite quickly, unless the entire US Armed Forces decides to side with them.
  - maximente 7y ago
    probably not, depending on which side CA lands. the western US is probably actually pretty well equipped to stave off the east from invasion. there's, grossly oversimplifying, hella mountains (north) and hella desert (south). not only that, but california feeds a lot of the nation. honestly, the 3 pacific coast states (CA/OR/WA) are probably pretty well equipped to secede and start their own country if they should see fit to do so. massive coastline, tons of food production, hugely powerful economy in cali.
    - kelnos 7y ago
      It still depends on the military. CA is certainly an economic powerhouse, but if the bulk of the military doesn't side with CA, I doubt groups like the National Guard (assuming they don't also support the federal gov't) or private militias (which, let's face it, are children with toys compared to the US military) will be enough to repel the US military, mountains and deserts be damned.

samatman 7y ago

On the contrary, Article V clearly states that it would require legislation on the part of two-thirds of the States, or passage by two-thirds of the House and Senate, and subsequent ratification by three-quarters of the state legislatures. This would convene a Constitutional Convention, which in turn could rapidly pass an Amendment rendering the existing Constitution null and void upon ratification, after which they could turn their attention to creating and ratifying a new Constitution. Not only would this be perfectly legal, I consider it an excellent idea.

jaywalk 7y ago
Color me embarrassed. Thanks for pointing this out.
- CamperBob2 7y ago
  The effect would be the same. We would end up with a country of, by, and for the red states, for better or worse. It would be much better to focus on enforcing the existing Constitution, than to write a new one that would also end up being ignored when it proves the least bit inconvenient to the government. The world is full of "democratic" countries with lofty-sounding constitutions.
  - javagram 7y ago
    3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. In reality the country is divided enough that no wholesale rewriting of the constitution would ever be possible in the current political climate either way, using the amendment mechanism. Hence the importance of using the SCOTUS to reinterpret it one way or another instead...
    - CamperBob2 7y ago
      3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. I strongly disagree with your definition of "red states," given the electoral-vote map from the last Presidential election. In any case, my point is that rewriting the Constitution would have no beneficial effect anyway, because we'd just continue to ignore it.

chmod775 7y ago

> We don't have a mechanism to replace the Constitution. You mean besides Article 5 of said Constitution?

munificent 7y ago

The Constitution places no limit on the scope of amendments, so in theory Congress could pass an amendment that says "The text of the Constitution is replaced with _____."

virmundi 7y ago
An interesting question is can you remove the second amendment? “Shall not be infringed” implies any effort to limit the right is blocked.
- sjy 7y ago
  Of course you can. “Shall not be infringed” would never be interpreted as overriding the explicit amendment procedure in Article V. Most countries have found easy solutions to the paradox of laws that attempt to restrict their own amendment: https://en.wikipedia.org/wiki/Entrenched_clause https://en.wikipedia.org/wiki/Entrenched_clause
kej 7y ago
>no limit on the scope of amendments There's one notable limit in that an amendment can't deprive a state of equal Senate representation: >...provided that ...[restrictions on amendments before 1808]; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.