AMENDMENT XXIX

1. All Bills which raise or appropriate money, or which issue or limit the size of the public debt, or which fix the salaries of Officers of the Government of the United States, shall originate in the House of Representatives, and shall not be altered or amended by the Senate.

2. The Senate shall vote on all such money bills within one year, voting by the Yeas and Nays, and the affirmative vote of a majority of the Senators duly chosen and sworn shall cause the bill to be passed. If, after one year, this vote has not been taken, the House may present the money bill to the President of the United States for signature, in like manner as if it had been passed by the Senate.

3. These provisions may be enforced by judicial proceedings.

That’s right: today’s proposal is an Origination Clause! It dictates that “money bills” must come from the House of Representatives, not the Senate.

Now, the Constitution already has one of these. But the current Origination Clause is so old, musty, and irrelevant that you may have forgotten that it even exists:

THE CURRENT ORIGINATION CLAUSE (Article I, Section 7, Clause 1):

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

This Origination Clause failed, and we’ll get to that. But, first: why did the Founders give this special power to the House in the first place?

Let us turn, as we so often will, to the Federalist Papers. Federalist No. 58 considers the balance of power between the House and the Senate. It first notes that the People are represented by the House, which apportions representation (loosely) according to the general concept of “one person, one vote.” Meanwhile, the Senate represents the states, and apportions representation on the basis of “one state, one vote.”

This division between the People’s House and the States’ House is a crucial feature of the Constitution, to which we will return often. In our constitutional union, states (not the national government) are the primary, plenary policy-makers, and they are the immediate sovereigns of virtually all of us (unless you live in D.C., Guam, or one of the other federal territories). As we saw repeatedly during the pandemic, states can exercise vast powers that even our robust national government can’t dream of, like covid lockdowns. States are not mere land, as some like to say (the slogan is “land doesn’t vote, people do”). The Founders actually thought about making an upper house where representation would be based on property values, but rejected it because states, not land, needed representation. Nor are states mere provinces or administrative subdivisions of the National Government. States are the building blocks of Union, the political entities that forged the Constitutional compact in the first place, and which still govern most aspects of our lives today.

The Founding-era controversy over the Virginia Plan vs. the New Jersey is sometimes framed as a mere compromise for political expediency, which we should do away with now that the need has passed, but this fails to recognize the important insights the small-state advocates brought to the table. Their insistence on a bulwark for small states prevented the Virginia Plan from strangling federalism in the crib, and is directly responsible for our system where the states serve as “laboratories of democracy.” Because of state sovereignty, the diverse population of a vast nation can create diverse systems of law to suit their own local needs, instead of one-size-fits-all federal law trying to control 337 million people. We will explore this idea further when we discuss reforming the Senate. (By the by, the other thing the “obsolete compromise” view fails to recognize is that the Great Compromise is still a necessary political expedient. Ian Millhiser can tweet “abolish the Senate” all he wants, but good luck keeping the entire middle of the country in the Union if you do so!)

As crucial as the Great Compromise was, though, it was not without downsides, and Federalist No. 58 is about some of the Great Compromise’s risks:

It may be alledged, perhaps, that the senate would be prompted… to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions…

The Federalist‘s authors are suggesting that a small coalition of small states in the Senate, representing only a small fraction of the overall population of the United States, could band together and prevent just, equitable, and (above all) very popular legislation (in this case, reapportionment legislation) from coming into force. Some of this give-and-take is to be expected, and is indeed by design; the Senate’s equal representation of the small states is precisely intended to give the small states an effective voice against legislation that unjustly steamrolls them or their constituents. Given how easily the high-population states can silence the low-population states without this kind of affirmative action (consider how well-represented small states, small-state residents, and small-state experiences are in, say, Hollywood films or national news media), the low-population states needed a voice, and the Senate gave them one.

But the Founders did not intend for theirs to be an equal voice, and Federalist No. 58 makes that clear: in the matters that most affect the People, the People’s House is supposed to be in the driver’s seat. The Founders valued the States and their voices greatly, but their conception of the People as ultimate sovereign was the cornerstone of their political worldview. So how did the Founders put the House of Reps in the driver’s seat?

Well, one, the House’s sheer superior moral authority:

…it cannot be doubted that the house composed of the greater number of members, when supported by the more powerful states, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses.

But, also, the Founders gave the House the greatest weapon they could imagine to wield against the Senate:

A constitutional and infallible resource, still remains with the larger states, by which they will be able at all times to accomplish their just purposes. The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government. They in a word hold the purse; that powerful instrument by which we behold in the history of the British constitution, an infant and humble representation of the people, gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse, may in fact be regarded as the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

They’re talking about the Origination Clause, a clause so powerful that the Founding Fathers believed it gave the House an “infallible” upper hand in standoffs with the Senate. Indeed, Federalist 58 argues that Senators will be too embarrassed to hold out for long against the House, because the British House of Lords (on which they modeled the Senate) had for the most part capitulated to the House of Commons in a series of conflicts over several centuries:

…Or if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect, that in all cases the smaller the number and the more permanent and conspicuous the station of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of a dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British house of commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal senate or president will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles.

Meanwhile, in the actual Senate that actually exists:

Now, it is not especially fair to Sen. Mitch McConnell that he has become a totem of obstreperous, shameless, two-faced senatorial obstruction. McConnell is nothing special in the “obstreperous, shameless, two-faced obstructionist” department; Harry Reid and Tom Daschle were equally canny operators in their day, and the only reason Chuck Schumer hasn’t yet fully earned the epithet “obstructionist” is because he’s never yet led a Senate majority against a hostile White House and House of Representatives. (As a matter of fact, I’m rather fond of Sen. McConnell, one of the shrewdest generals on today’s political battlefield.) But there is no denying that McConnell is obstreperous, shameless, two-faced, and obstructionist. The House could threaten him and his caucus with money bills for decades and it wouldn’t move one Republican vote. McConnell gave only the tiniest bit of ground, at the last minute, temporarily, on the impending disaster of the debt default.

If I’m right (and I am right) that Schumer, Reid, Daschle, Lott, and the rest of them are/were equally shameless, then that only deepens my critique of the Founders. The Federalist Papers weren’t just talking the Origination Clause up for marketing purposes; they really thought it was going to be powerful. The high-population states considered the Origination Clause a key concession in the Connecticut Compromise. The big states would not have accepted equal suffrage of the states in the Senate–and, thus, the Constitutional Convention would have fallen apart–if the House had not been given this “money power.”

So if the Origination Clause is supposed to give the House a solid, reliable weapon against the Senate, forcing the Senate to yield in close contests, why do I routinely forget it even exists?

Simple: our Origination Clause sucks.

Elbridge Gerry saw it all coming. Mr. Gerry was a Massachusetts delegate to the Constitutional Convention, and the Origination Clause, about which Hamilton and Madison so rapturously wrote, was actually Mr. Gerry’s idea:

Taxation and representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses.

Elbridge Gerry, 13 August 1787

(Fun fact: Mr. Madison, despite his later participation in The Federalist, was not a fan when Gerry’s idea was introduced to the Convention.)

But Gerry’s proposal was much, much stronger than what ended up in the Constitution. His original text was:

All Bills for raising or appropriating money and for fixing the salaries of the Officers of the Government of the United States, shall originate in the first Branch of the Legislature, and shall not be altered or amended by the second Branch.

This is a fairly robust proposal. The House gets to write all the money bills, and the only thing the Senate is allowed to do is say yes or no. No amendments. Just yes, or no. Mr. Gerry’s original text is the basis for Section 1 of today’s proposed amendment.

(The biggest weakness in Gerry’s proposal is one he could not easily have anticipated: future Congresses and courts have construed the phrase “bills for” very, very narrowly, so that most bills that raise government revenue–debt issuances, fines, fees, and so forth–are not considered to “count” as “bills for raising revenue,” because the revenue is “merely incidental.” My text addresses that by changing “for” to “which” and expressly including debt.)

This proposal, arguably, doesn’t even make the House more powerful than the Senate. The Senate enjoys several enormous privileges in which the House does not get to participate. Particularly, the Senate has exclusive power to confirm presidential appointments to the executive branch, exclusive power to confirm judges, and exclusive power to ratify treaties. The House, despite being the more important house, closer to the People, has no corresponding powers of its own… except the Origination Power, which the Founders held in such high esteem, and which has turned out to be such a damp squib in practice.

Instead of Gerry’s text, the Convention eventually passed this instead, as we saw above:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

This text, in practice, has proved totally meaningless.

The Senate writes its own money bills all the time. Then, once it has written a money bill, it finds some useless, completely irrelevant House bill that’s D.O.A. in the Senate–but which technically passed the House. Then the Senate “amends” the House bill by replacing its entire text with the text of the Senate’s new money bill. Under the language of the Origination Clause, this is technically legal (the best kind of legal?); the Origination Clause allows amendments, without limitation.

For example, one of the more notorious cases of this was the passage of the Affordable Care Act. The Senate wanted to write its own version of the ACA, but it was clearly a money bill. So they grabbed a bill called the Service Members Home Ownership Tax Act of 2009, a simple 6-page bill which dealt with homeowner tax credits for veterans, and replaced it with an all-new 2406-page “amendment” that the Senate had written to radically alter taxes and spending throughout the health care sector.

The Origination Clause does not work, it has never worked, and it renders the House of Representatives, the People’s House, the obvious primus inter pares of our entire Constitutional scheme… subordinate to, and obviously weaker than, the institutional oligarchy of the Senate.

Surely the Founding Fathers saw this possibility coming. Indeed, some did. Gerry himself thought that the Origination Clause that actually passed had been gutted of any real effect. Why did they gut such an important clause?

The Constitutional Convention was extremely anxious about the idea of sending unamendable money bills to the Senate. Indeed, John Francis Mercer, a Maryland delegate, “considered the exclusive power of originating money bills as so great an advantage, that it rendered the equality of votes in the Senate ideal and of no consequence.” This led the Convention to strike down Gerry’s original proposal and (eventually) replace it with the weaker one.

It’s important to explain this fear so that we can dismiss it. In Westminster Parliamentary systems, like the one the Founding Fathers had just rebelled against, money bills are extremely special. If the majority party in the lower house (this party is often called “the government” in Parliamentary systems) is unable to pass a money bill, it is called “loss of supply.” The government automatically falls. The Prime Minister must immediately resign and Parliament must hold new elections to resolve the crisis. This makes it, politically, almost impossible for the upper house to vote down a supply bill. And, in the British Constitution (as in Mr. Gerry’s proposal), the upper house can not amend a supply bill, either.

Eventually, the House of Commons figured out that the House of Lords couldn’t vote them down on supply bills, so the Commons started attaching totally irrelevant riders to supply bills — provisions they could not get through the Lords under ordinary circumstances, but which they could force through using a supply bill which the Lords could not practically reject and which they could not legally amend. The Commons then abused this authority to break the power of the Lords. The Founding Fathers (especially the small-state delegates) repeatedly and loudly worried about a strong Origination Clause having this same effect, and they had a point: the Senate was clearly based somewhat on the House of Lords, and look at the House of Lords today. Is it not “ideal and of no consequence,” just as Mercer predicted?

The thing is, our system does not have loss of supply, so none of these incentives have developed in quite the same way. Instead, our Congress just keeps on running after a money bill fails, leading to government shutdowns. We have these pretty routinely, often for precisely the reason the Founders thought would only be caused by a strong Origination Clause: one house gets really attached to a provision that is not actually relevant to the budget and refuses to pass a spending bill until they get their way. The other house refuses to go along with it. The government shuts down. (We’ve done this over Obamacare, DREAMers, and a border wall, among other things, all in the past decade.) Shutting down the government is extremely unpopular, and the voters start trying to figure out which side is to blame. Sooner or later, the voters make up their minds, then that side caves, a bill passes, and the government reopens.

We have these periodic budget crises even with a weak Origination Clause. A stronger Origination Clause would not encourage them any further–how could it? all the dynamics for periodic confrontation are already in place–but a stronger Origination Clause would strengthen the hand of the People’s House somewhat, giving them appropriate tools to counterbalance the awesome powers of the Senate, while putting the purse-strings more firmly in the hands of the People.

My Parliament-favoring friends will object that this proposal does not go far enough. Although I have made money bills unamendable by the Senate, the Senate can still reject them. If the Senate doesn’t like a provision in a money bill, won’t they just reject it and issue instructions to the House to amend, thereby thwarting the whole intent of the clause once again? Should we not remove the Senate’s power to reject the bill altogether? After all, James, you clearly based that “one year deadline” concept on the modern House of Lords’ suspensory veto, which also lasts up to one year. Why not go all the way?

I answer that it is true that the power of origination is not a trump card for the House… but it’s not supposed to be. It’s supposed to give the House the upper hand in negotiations, not unilateral control of the government. As my writing, even just in this article, makes clear, I think the Senate is really important! I think the Westminster parliamentary system is dangerously populist and, if stable, stable in part because of its tendency toward tyranny of the majority. You couldn’t pay me enough money to live under the system that murdered Charlie Gard for funsies or the one that says you have rights until we decide you shouldn’t lol. The U.K. swung wildly from market socialism to neo-liberalism in the span of just a few years in the ’70s and ’80s, while the delicate U.S. system weathered the same global economic storms with (what appeared to me to be) less financial, social, and psychic stress–because our system prevents a bare majority from going too far without minority buy-in, automatically slowing and moderating our major policy shifts. (Our system does concededly have more civil wars, so, y’know, trade-offs.) The Founders rejected a straightforward parliamentary system where the lower house controlled everything, and I think their decision was wise. A powerful Origination Clause is good, but the Senate should still have viable tools for resisting the House.

…while still leaving the House with a clear advantage. Removing the power of amendment does that. It is true that the Senate could obdurately refuse to pass every money bill that includes a provision they dislike. But we have two and a half centuries of experience with riders, poison pills, pork, and logrolling. We know from those experience that everyone in Washington is constantly running political calculus on every bill, trying to decide whether the parts their voters like are good enough to outweigh the parts their voters don’t like. We see daily how the power of amendment, even to force votes on doomed amendments, is a potent political weapon. Let the Senate continue running that calculus… but now without most of their tools in their arsenal. If Senators don’t like it, well, I’m guessing they won’t like it any less than the House doesn’t like being completely cut out of the loop on Supreme Court nominations. It’s about time we finally strengthened the House so the two halves of Congress stand on equal ground, as the Founding Fathers intended.

That explains Section 1 of my proposed amendment, which is the real meat of it. The other two sections are very straightforward, and exist mainly to prevent partisan or senatorial tricks. To remind you, here is my proposed text:

AMENDMENT XXIX

1. All Bills which raise or appropriate money, or which issue or limit the size of the public debt, or which fix the salaries of Officers of the Government of the United States, shall originate in the House of Representatives, and shall not be altered or amended by the Senate.

2. The Senate shall vote on all such money bills within one year, voting by the Yeas and Nays, and the affirmative vote of a majority of the Senators duly chosen and sworn shall cause the bill to be passed. If, after one year, this vote has not been taken, the House may present the money bill to the President of the United States for signature, in like manner as if it had been passed by the Senate.

3. These provisions may be enforced by judicial proceedings.

Section 2 forces the Senate to go on record for all money bills. They cannot pull the trick they often try, where they let a popular bill quietly die in a committee. They cannot delay the bills indefinitely. Nor can a minority of the Senate block a vote forever through the filibuster.

The House holds the purse-strings. The Senate may refuse them, but the Senate may not ignore them. The Senate can delay a bill for, at most, one year. Then there will be an up-or-down vote… or the House can deem the bill passed and send it to the President for signature. (Of course, if the President vetoes it, that makes the House’s position much harder, as it takes two-thirds to overcome a veto rather than a simple majority… but that is another reason to support gelding the veto.)

Section 3 settles a question that has been disputed for many years: if the Senate originates a money bill improperly, but the House does not object and the bill passes into law, may the courts strike down that law for being passed unconstitutionally? Section 3 says yes, the courts must uphold the Constitution over and against the incompetence or chicanery of the House of Representatives. This prevents various partisan political tricks where members of the same political party in the House and Senate conspire to work around the Origination Clause (and set bad Origination Clause precedents) for short-term political advantage. The courts will be watching.

The Origination Clause the Founders gave us was supposed to be a potent weapon. Instead, it’s a dead letter. Let’s restore their design, and strengthen the democratic half of Congress in the process, by amending in a new Origination Clause that is closer to Elbridge Gerry’s original vision.

AMENDMENT XXVIII
A two-thirds majority is not required to override a presidential veto.

As a result of this amendment, the relevant paragraph of Article I, Section 7 would be revised to read as follows:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.

I put it to you that the central problem in the American system of government is that Congress is broken.

Congress is (according to the Constitutional plan) the branch that makes the laws, the branch that sets all non-emergency policies (through laws, through the power of the purse, through its power to issue debt, through its power to declare war), and the branch that exercises the most direct and effective oversight of the other branches (not to mention the other house of Congress!). This is because Congress is the branch that most directly represents the interests and will of the voters, who are the ultimate source of authority for the entire system. All our branches of government are equal, but the Founders also clearly designed Congress as first-among-equals.

Congress is (in reality) the weakest branch, least-among-equals. Most laws are made by the executive branch through the regulatory process, or by the judicial branch through creative “interpretation.” Congress is unable to pass laws of its own, and routinely struggles to have its laws followed when it does. Congress is a squib, a spent force, the fundraising arm of the two-party system, a soundbite theatre, a Twitter trending topic… but it isn’t a legislature, and has not functioned as one for some time.

The power vacuum left behind by Congress’s collapse has been filled by what pretty much everyone now calls The Imperial Presidency. The term was somewhat facetious when it was coined. It grows less facetious every year, as the Presidency grows annually to more closely resemble a monarchy–and not the charmingly impotent Elizabeth II kind! The Supreme Will of the President (exercised through clever technical abuses of overbroad statutes and legal tricks to delay or prevent judicial review) is increasingly the central governing principle of the United States. We’re maybe a generation from the President just donning purple and calling himself senatus princeps, if you know what I mean.

There are many reasons for this, and we will likely return to Congress’s brokenness and our modern Emperor-President many times in this series.

(Gerald Ford and the neo-reactionaries will cry, “No, it’s the imperial bureaucracy!” They have a point. We’ll come to that in future installments. For purposes of the presidential veto’s malodourous effect on the separation of powers, there is no relevant difference–and it’s worth noticing that, just like today, the collapse of the Roman Republic coincided with the exponential expansion of the Roman imperial bureaucracy.)

One important cause of Congress’s ennervation (and the Executive’s consequent empowerment) is the presidential veto.

The Founders conceived of the presidential veto for some charmingly quaint reasons. Federalist #73 (by Alexander Hamilton) explains:

The propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments, has been already suggested and repeated; the insufficiency of a mere parchment delineation of the boundaries of each, has also been remarked upon; and the necessity of furnishing each with constitutional arms for its own defense, has been inferred and proved. From these clear and indubitable principles results the propriety of a negative, either absolute or qualified, in the Executive, upon the acts of the legislative branches. Without the one or the other, the former would be absolutely unable to defend himself against the depredations of the latter. He might gradually be stripped of his authorities by successive resolutions, or annihilated by a single vote.

In other words, the presidential veto power is necessary, because otherwise Congress might gobble up presidential powers, even in violation of the Constitution. Hamilton is writing this, remember, several years before Marbury v. Madison would establish the Supreme Court’s formidable powers to defend the other two branches against attacks by the third.

Furthermore, Hamilton tells us:

But the power in question has a further use. It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.

Early in the Republic, the veto was used in this way: pretty rarely, pretty cautiously, and only to protect the Constitution or the prerogatives of the other branches, not to interpose the President in the legislative process.

Here is how the veto is actually used today:

(1) Sanctifying Abuses of the Law

When the President uses the powers Congress gave him to do something Congress did not intend and actually opposes, Congress often tries to fix it by passing a new law against it. The President, who enjoys exercising those powers Congress is trying to block, vetoes the new law. As long as the President can get the support of at least one-third of either house of Congress, he wins. Congress loses a little of its power to set the laws of the land; the President gains a little.

Headcount-wise, it is easier to impeach and convict the President of the United States than to override a presidential veto. Impeachment requires a majority in the House and two-thirds of the Senate. A veto override requires two-thirds in both. So if you really hate a certain presidential veto, and you’ve got the majority of Congress on your side, but you’re a few votes short of two-thirds in the House, the really smart and ruthless legislative party will impeach and convict instead. Those are the incentives we’ve set up.

(2) Squelching Embarrassments

When the President does something flagrantly illegal, but Congress supports him, Congress occasionally tries to fix it by passing a new law supporting it. The President, however, is embarrassed to admit that he has violated the law, and worries about the bad press he will get for needing to be “bailed out” by Congress, so he announces his intent to veto it and encourages the most loyal members of his own party to vote against the bill. (Sounds weird, but it’s word-for-word what happened with H.R. 2667 in 2013.) This leaves Congress with three options: it can hope someone else sues the President and wins, because Congress generally cannot sue the President; or it can impeach the President and remove him from office; or it can surrender, losing a little of its power to set the laws of the land, while the President gains a little.

(3) Getting Broad Powers While Evading Review

There are a lot of provisions in federal law that allow Congress to cancel certain extraordinary exercises of executive power. For example, the Congressional Review Act allows Congress to, by joint agreement, block problematic executive-branch regulatory laws from going into effect. The National Emergencies Act allows the President to declare national emergencies and take on emergency powers, but also gives Congress the ability to rescind those emergency powers by a joint resolution. The Immigration and Nationality Act gave the President the authority to cancel deportation procedures at his discretion, but gave Congress the power to override that discretion. The War Powers Resolution gives the President the authority to start a war without a Congressional declaration of war (as required by the Constitution), but gives Congress the power to stop any such war on review.

In theory, these provisions all give Congress a way to keep the Imperial Presidency in check, by giving broad and flexible powers to the president but allowing Congress to review and restrain the exercise of those powers.

In practice, however, whenever Congress passes a joint resolution cancelling a presidential action, guess what? The president vetoes it! Then he laughs in Congress’s face. The Supreme Court confirmed in INS v. Chadha (1983) that the presidential veto power applies to all exercises of legislative power, including these Congressional reviews. This ruling was, in my view, the correct legal ruling given our current Constitution. (That’s why I’m saying we should change the Constitution.) Remember when President Trump declared a “national emergency” in order to try to build his border wall? Congress voted to cancel that emergency… but, because they could not break Trump’s veto, it remained in force for the rest of his term.

Eventually, because it was obviously pointless, Congress more or less gave up even trying to disapprove presidential actions. The President gets to keep the broad and flexible powers Congress gave it, but Congress lost the ability to review and restrain those powers (which it was really counting on when it handed those powers over in the first place).

(4) President as Legislator-in-Chief

The Founding Fathers did not foresee the rise of political parties. In fact, they were terrified of political parties, because they knew that strong political parties would break their design of the Constitution. They weren’t wrong!

The Founders expected government officials would be loyal to themselves first, their branches second, and the American people third. A lot of our checks and balances are based on the idea that elected legislators and elected Presidents have few common political interests and are mutually jealous and suspicious of each other.

Political parties spoil this assumption. In fact, the President has strong political ties and shared interests with certain members of Congress, and vice versa. Loyalty to the party and the party agenda comes way ahead of branch loyalty, and sometimes even trumps loyalty to one’s self. (Just look at how Bart Stupak and the Blue Dog Democrats knowingly immolated themselves on the pyre of Obamacare, which was unpopular at the time, was definitely going to cost moderate Democrats their seats, and effectively wiped them out.)

The presidential veto makes him the single most powerful force the entire legislative branch. Wielding the veto, one single man, not even directly elected by the people, can prevent Congress from acting on any legislation, for any reason, until it meets his exacting conditions–or the conditions demanded by his political party. The President is, for the most part, able to dictate laws to the legislative branch… and, since before the beginning of living memory, that’s exactly what the President has done. The impossibly difficult veto overrides were few and far between a century ago… but they have become even fewer now, because the President wields ever-growing power within his party to punish any sitting legislator of his party who dares oppose him. (We’ve had two impeachment trials in the past four years, and we’ll likely have another if Republicans retake the House in 2022, albeit all unsuccessful. The last successful veto override? July 15, 2008, over thirteen years ago.*)

The results? Obvious: it is impossible to pass major domestic legislation in this country without a “trifecta”: single-party control of the House, the Senate, and, above all, the White House. This happens once a decade or so. (The other eighty percent of the time is spent in unbroken legislative gridlock.) The President then supervises members of his party in Congress in crafting a bill that is acceptable to “his” majorities in both houses without compromising his own re-election chances. Do I really need to attach links to sources for this, or have you all paid attention to at least one major piece of domestic legislation on at least one occasion in the past twenty years and therefore know how this works?

This assertion of control over the legislative process is, by far, the most important and common use of the veto today. (It is almost never actually exercised; an official White House veto threat is usually enough.) What a sad inversion! The Founders were afraid that, without the veto power, the Congress would swallow the executive branch and “the legislative and executive powers might speedily come to be blended in the same hands.” But, thanks in part to the veto power, that’s precisely where we’ve arrived… but with a monarchical presidency blending the powers, not the democratic-republican Congress!

(5) Ever-Deepening, Self-Sustaining Gridlock

The presidential election then, predictably, devolves into an extended debate about domestic policy… which is something the President, in our system, should not have any significant authority over in the first place, nor even any opinions save what he reports to Congress in his annual State of the Union letter (not speech) about how to improve the efficient functioning of the People’s government established by Congress. Since the presidential election ends up being about legislation rather than competence and good judgment (which is what presidential elections are supposed to be about), we end up with deep partisan polarization around whoever happens to President… which makes bipartisan deal-cutting even more difficult, because any bipartisan deal has to be made, first and foremost, with that president, the legislator-in-chief, and the despised enemy of the opposition’s entire voting base. What do you get? Gridlock! (And a lot of italics for emphasis.)

Rather than the People voting for Congress to enact an agenda and for a President to competently administer the government, the People vote for a President to enact an agenda, Sir Humphrey Appleby administers the government, and Congress sends out fundraising emails telling you that they need YOUR HELP TO STOP THE [opposition party’s] ATTACK ON GRANDMAS AND FREEDOM ITSELF. The People become demoralized and frustrated when this convoluted, wasteful system–which is essentially unworkable even at a small scale, but absolutely unworkable given our titanic federal government–fails to work and does not produce the results they voted for.

The veto does little good and much evil. Both parties can point to one or two cases where the veto delayed legislation they opposed for several years, but both parties can also point to dozens of cases where even a merely threatened veto strangled good legislation in its crib. So get rid of it!

The Good Parts of the Presidential Veto

AMENDMENT XXVIII
A two-thirds majority is not required to override a presidential veto.

You probably noticed that my proposed amendment does not actually get rid of the veto. All it did was get rid of the two-thirds override requirement. Everything bad about the veto comes from the fact that Congress has to come up with extra votes in order to ignore it. If Congress could simply vote again to bypass a veto, the veto is no longer a problem.

But why should it have to go through that rigmarole? The process set out by the Presentment Clause requires Congress to formally deliver a bill to the President, who then has ten days to veto it, which bounces it back to Congress, which then needs to schedule votes in both houses… the whole affair could easily take two weeks (allowing, among other things, pocket vetoes). Knocking out the two-thirds requirement makes this whole creaky, time-consuming process redundant, doesn’t it?

I don’t think so. The Founders were right, after all, about this: “faction, precipitancy, [and] any impulse unfriendly to the public good” may occasionally overtake Congress, especially in moments of great fervor and hurry. The Presentment Clause provides a cooling-off period before a passed bill becomes a law. The Veto Clause–even after my amendment gelds it–will still allow the President to send a bill back to Congress with objections, essentially saying, “Are you absolutely sure?” Overriding that veto will no longer be an impossible task for the President’s opponents… but it will force them to think a bit about whether they are really sure this legislation is a good idea.

This is often useful. Very often, an executive will recognize problems with implementing a bill that the legislators didn’t foresee, or didn’t fully understand. The executive’s warning can lead them to make useful changes, or simply reconsider a possibly-rash course of action, even if the veto is not binding. You can see this in cases around the country, where an executive veto plus a few days’ thought caused bills originally passed by veto-proof majorities to suddenly lose that support. I think this serves as a useful check on the legislative branch, in most of the ways the Founders expected… but without centralizing legislative power within the person of the President.

This “are you absolutely sure?” function is considered useful enough in England that it is the primary function of the House of Lords. Anything the House of Commons wants to become law will become law. The Lords’ sole function is to scrutinize each bill the Commons passes and offer advice on how the Commons can make it better (or why the Commons should get rid of it). They have explicit powers to delay legislation. And they can force the Commons to reconsider legislation. But they cannot block legislation outright. This has served both the Lords and the United Kingdom pretty well, which is why I’d like to see it continue in the United States.

For that reason, I think we should get rid of the two-thirds override requirement, but otherwise keep the presidential veto. Don’t erase it. Just geld it.

*UPDATE 4 October 2021: This article originally stated that the last veto override occurred in 2008. While veto overrides are very rare, they aren’t quite that rare. President Trump and Obama suffered one successful override apiece, in 2016 and 2021, respectively. The error was entirely mine.

Let’s recklessly start another series! Worthy Reads is going well, but I don’t want the blog to be taken over by my clippings from other blogs, so I’ve been saving up Worthy Reads for months without writing anything else. It’s time to fix that. In each entry of this series, I’ll propose an amendment to the U.S. Constitution for your consideration.

Except for this entry. Today’s entry is an introduction.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.

James Madison

James Madison famously believed that the Constitution required no Bill of Rights, because its fundamental structure was enough to secure the rights of the people. I think history has proved him wrong about that — but not entirely wrong. The structure of our government can, to a tremendous extent, shape its actions towards (or away from) the common good. By many measures, the most generous and popular Bill of Rights in the history of the world was contained in the Constitution of the Soviet Union… but the Soviet Union was structured in such a way that nothing its Bill of Rights said actually mattered or was in any way protected.

The fundamental insight of the U.S. Constitution, of Madison’s Constitution, is that the government serves the People best when it has some accountability to them (no dictatorships), but is not subject to the mob’s whim (no democracies), and when it forces competing interests to police one another and make compromises rather than allowing any single force or party to control all the levers of power at once (which means no parliament).

Thus Madison and the Founders gave us the best system of government yet devised: an elected republic, where the common people and their popular will were set against the aristocracy and institutional interests (the House vs the Senate); different states against one another (the Senate within itself); different population centers against one another (the House within itself); with the legislative and executive branches all at each other’s throats, jealously guarding their own power and prerogatives; as the judiciary refereed by common consent of the political branches. We also have a federal government with limited powers, locked in an eternal tug-of-war with fifty (or more) states, most of whom have broader powers than the federal government, but without the military or economic power to fully exercise it.

Or, at least, that was the idea.

The American government has failed in several key ways. The legal system we have is not the legal system the Founders envisioned. It’s not even close:

Congress (Article I) is a bicameral ATM that dispenses money created by the Federal Reserve, a quasi-governmental organization of private banks that everyone agrees must never be the subject of direct government intervention. A lot, and I mean a lot, of laws are passed without being read by the Congresscritters voting for and against them.

This is ultimately relatively unimportant because the President (Article II) is the Head of State and sort of the Head of Government, and has a Cabinet of Ministers with whom he isn’t supposed to talk too much for fear of having some influence on their behavior. Those Ministers, whom he appoints with Congressional approval, go on to make the laws described above, and to enforce the laws, and sometimes not, and sometimes run roughshod over the people because they can. This is only the President’s fault if he belongs to a party or belief unpopular with the aristocracy, more on this below, and is otherwise beyond his control because he’s not supposed to politicize his own Branch and anyway the thing’s too big.

Article III (the judiciary) writes amendments to the Constitution, beginning with the one allowing them to write Amendments ex nihilo and on their own, and decides national policy on issues of incredible importance under the guise of resolving cases and controversies. The Judiciary also decides on the relative balance of power of the federal and state governments, the limits of the other branches’ power, and whether actions undertaken by the other branches are acceptable enough to stand. Thus, the only unelected branch, other than apparently Article IIA, has the most direct and only unchecked decision on national lawmaking of all.

The President can go to war without Congress agreeing, or make treaties-that-last-as-long-as-his-Presidency without Congress agreeing, or refuse to enforce laws, or create whole new legal programs, and Congress cannot refuse to fund any of it because reasons. Additionally, the President cannot cancel any of the laws his Branch makes, even if directly in violation of the Constitution, unless Article III signs off or Article I signs off (and Article III signs off).

Thomas H. Crown, 2014

(Curtis Yarvin makes a similar point, but even more brutally, in his elucidation of the “ritual Constitution” and the “descriptive Constitution.”) UPDATE 18 June 2025: Turns out I did my own version of this in 2018, entitled simply, “The Constitution of the United States of America”. Naturally, I consider mine the best.

Partly (largely) this is our elected officials’ fault. A lot of this stuff happened because Congress wrote and passed bad laws, because they seemed like a good idea at the time, and now the laws are so thick and interdependent that pulling some of the bad laws down would be like pulling out the center brick in a Jenga tower. That’s an understandable fear, but inadequate to our predicament. It has allowed the Deep State they constructed to wrest the reins of governance away from them.

(SIDEBAR: People get uncomfortable about “Deep State” talk, because it sounds conspiratorial. This is easily cured. The Deep State is the subject of Yes, Minister and its sequel series Yes, Prime Minister, a popular British sitcom from the 1980s and Margaret Thatcher’s favorite program. Whenever you hear the phrase, “the Deep State,” replace it in your head with “Sir Humphrey Appleby” until the true nature of the Deep State has been drilled into your head enough that the replacement is no longer necessary.)

Partly this is our fault. We have in some ways betrayed the system we were given, especially in our long careless descent down the roads to democracy and tyranny (they’re really the same road). We lack the moral virtue and civic energy that the Founding generation felt was essential to successful republican governance; we belong to a shockingly supine and politically dull-witted century, as did our parents and our grandparents. (Blame radio, TV, and video games, I guess, in that chronological order.) We don’t teach civics; when we do teach civics, we teach them badly; and the current effective political control of America’s classrooms by a single partisan side (the Left) makes the teaching of political theory fraught anyway.

But also, partly, this is the Constitution’s fault. The Constitution has a number of mechanisms that do not function correctly. The government of mutual checks and balances they envisioned, therefore, has more or less dissolved into a mess. Some of these mechanisms never worked and were never going to work. Some of them worked for a while, then stopped working. Some of them were sabotaged in unexpected ways. Many of them failed because the Founders failed to account for the inevitable rise of political parties. Now, I love our Constitution. I love James Madison. I think the American system of government is an all-time great. The Founders were great men… but they were not angels. Geniuses… but not fortune-tellers. It is neither surprising that they failed to foresee every detail of how their incredible document would play out in reality, nor a betrayal to point out the few breakdowns and propose fixes. Hence this series.

I take as my starting point that amending the Bill of Rights to settle important substantive questions like “the national debt” or “abortion” is simultaneously impossible, pointless, and boring. It’s impossible because these are deeply divisive issues (that’s why people are trying to settle them by amendment), and you need about 85%+ public support to ratify a constitutional amendment. It’s pointless because, if you could ever get that much public support for your divisive policy question, you’d no longer need a constitutional amendment, because you’d have won the argument and all the relevant laws already. It’s boring because it’s just an extension of substantive political debates we already have all day every day. (Boring is not actually a bad thing for government–I’m not here to insult the 20th Amendment–but boring is bad for blogging.) The only time you can actually usefully add to the Bill of Rights is when you’ve just won a civil war and you can force your vanquished enemy to ratify your views at the point of a gun.

As another starting point, I generally reject constitutional amendments that rely heavily on judicial interpretation to be given effect, or which effectively hand legislative power to the judiciary. Everyone knows that writing, “Racist policies are unconstitutional” into the Constitution wouldn’t actually ban “racist policies”; it would merely ban whatever a judge (or entrenched bureaucrat) will label a “racist policy,” and we all know that judges (and bureaucrats) are fallible on their best days and downright evil on their worst, because they’re human. Everyone knows that handing the essential policy-making power over to them flies in the face of the separation of powers. Whether you’re more scared of conservative judges or progressive judges, we’re all scared of judges of some stripe or another, and we’d have to be pretty stupid to give them even more power.

Nevertheless, people love doing these two things. The New York Times recently ran a feature where they asked prominent law-and-politics people to propose amendments. All but one of these proposals (including one I really liked, by Xan Desanctis) was either “constitutionalizing a divisive policy argument” or “giving judges free rein to set policy,” sometimes both at the same time!

The National Constitution Center did a similar thing, except they let their teams rewrite the whole Constitution. Result? The majority of the work turned in by two of the three teams was this same unrealistic partisan score-settling, with some healthy judge-worship on the side.

Oh, well. Human nature, I guess.

This series will not have any of those. I will not pitch you a conservative Personhood Amendment, nor a progressive narrowing of the First Amendment. We’re going to try and be like James Madison, fixing the system in conspicuously non-partisan ways, so that the men (not angels) who run our government are nudged toward wisely and justly governing its subjects without specific directives from us, the Constitution writers, on what that means.

Let’s roll! First post tomorrow: “Geld the Veto.”

UPDATE: Read the rest of the series in my Roundup for Some Constitutional Amendments.