Actually, I very much disagree. This would require a new constitutional committee of style to produce a new version of the constitution with every amendment passed. Hence, ratification of each amendment is really ratifying a new version of the Constitution. Amendments would have to specify just what portions of the previous version they changed, down to precise clauses.
Yes, that would indeed be necessary. But I don't think this would put a significantly higher workload on the Congress. If you look at OTL ratified Amendments, they are typically rather direct in language and scope (although exceptions exist, such as the last clausles of the XIV Amendment) and if directly incorporated, they would either go to be new clausles in the BoR section if they grant new civil rights (e.g. the XIII, first clausle of the XIV, XV, XIX) or go to replace or add whole clausles in Article I or II (e.g. the XVI on income tax, the XVII on direct elections of senators, the XXV on presidential inability). It seems like selecting a place for new text in the original document would be rather straightforward.
While on the one hand this does make interpretation easier, it limits the scope of the text. One of the aspects of the US Constitution that makes it last is that it is vague; it allows for enough interpretation to meet changing circumstances. Furthermore, direct incorporation would probably lead to a Constitution that's extremely technical; part of the genius of the US Constitution is that it's short, written in non-technical language, and easily accessible to the entire population.
I fail to see why direct incorporation would make the Constitution much more technical and narrow-worded than it is OTL. What makes the Amendments remain sufficiently broad and non technical in langauge is that there is the precedent of the original text, and that the amendment is a complex and multi-step process. Amendment attempts that are too narrow-worded or technical would die in the ratification process, in all likelihood. I really fail to see why direct incorporation would move the Congress to use a different kind of approach than the OTL footnotes.
The very fact that you can fit an easy to read copy in your coat pocket make the US Constitution a symbol of the USA and of popular sovereignty.
Sticking the text of the XIV or the XXV in the midst of the original document makes it no less so. So far, the Amendments have gone rather technical only when it was really vital to do so, e.g. tinkering with the details of presidential succession.
Furthermore, precedent and history are crucial to understanding the Constitution. The fact that any version of the US Constitution always incoporates aspects of now defunct language points to the need to consider that history. To some extent this does complicate reading the Constitution (and sacrifice the simplicity I cite above), but the balance between accessibility and complexity is usually appriately struck by with italicized text and footnotes. One want's the Constitution to be accessible, but not simplistic ab reductio.
Precedent and history are important, but direct incorporation strikes a nice balance between the prestige of history, given the load of the mostly unchanged text and the vitality shown by the new bits that are added or changed to keep up with changed circumstances. The simplicity and accessibility factors you cite are very important, and the continuing success of the Constitution is also linked to its vague text that leaves ample margin to adaptable interpretation. However, IMO that is due to three factors: the excellent skill of the Supreme Court to provide interpretation, reducing the need for actual changes, the complexity of the ratification process, which kills hasty changes, and the precedent of the original language. none of these factors would be changed by the lack of obsolete text showing that the original document once sanctioned slavery, or the framers picked a faulty method for electing the President or did not trust the people with electing their senators.
This even more so if we consider that our optimized const. would already incorporate the first 11-12 Amendments and the 27th in the original text, which almost halves their number, and its optimized nature would make a number of ATL ones unnecessary.
That's one way to do things, but then the Constitution doesn't really have a Bill of Rights, does it. Given the concerns of George Mason and the template of the Virigina Declaration of Rights, I think there will be pressure to do create a new Article that gathers all the rights together.
Well, I do understand you concern, and the noticeability of the BoR in the integral text of the Const. may be an important concern. So I would be inclined to agree with you. I am just be mindful that there are several provisions of the OTL text that are as much as fundamental "rights" as the ones found in the BoR. And those are scattered in the text, e.g. in Article I section 9, or Article IV section 2. I am thinking of stuff like:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
(Article I, section 9)
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
(Article IV, section 2)
So what are we going to do: put the BoR in its own new article, and leave these in the original places, or move these around, too ?
Furthermore, having a handy list of Rights (rather than having them scattered through the document) is a part of the idea of Bill of Rights: that the population should have a short, concise and authoritative list of what their rights are. This is more in line with the practice of state constitutions, which usually have a separate section that expressly lists protected rights.
Well, I suppose it could be done. Even if I notice that putting the BoR at the end of Article I, section 9 does create such a list, and the Constitution is short and simple-worded enough that finding the BoR list is simple enough whether you have them in their own article or a their own section of another Article.
Accordingly, I think the Framers would collect some of the more important provisions of the Constitution--those they considered essential--and incorporate them into a new Article of the Constitution. I would imagine most of the Rights which have to do with personal guarantees would be incorporated here.
Ok, I suppose it could be done, but where would you put such an article ? It would still end up in the middle of the text, I suppose after Article III or IV (it would be the new Article IV or V) since putting it at the very end after the amendment and ratification procedures would look rather odd.
Hence, remove writs of habeas corpus from Article I and include it here. The rest are more procedural (i.e. bills of attainder, ex post facto, ban of titles of nobility).
Argh. No, on this I radically disagree. Forbiddance of bill of attainder, ex post facto laws and discrimination against citizens of other states are as fundamental garantees of civil rights as freedom of speech and trial by jury. Ex post facto laws make criminal justice as much as tyrannical as an unfair trial or cruel punishments.
Pretty much only the 1st Amendment specifically mentions a denial of power to Congress; the rest are more general. I'd imagine the language of the first amendment might thus be changed. Accordingly, the protection offered by it might increase a tad.
Hmm, a stronger wording of the First ? This looks like very, very interesting. Please post what are you thinking of. I'm all ears and eyes. Just we have to be mindful that a really stronger protection here might well need to be reflected in Madison's Amendment on the states (and the clausle on territorial government).
Anyway, if we start meddling with the BoR, I would have some adjustments of mine to propose. E.g. I would deem a rather important improvement to reword the 8th to read:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and excessive punishments inflicted.
Removing the "unusual" provision would close the current loophole that makes whatever abysmally unfair punishment constitutional as long as a sufficient numner of states mandates it.
Well, technically all the BoR is a denial of power to Congress, hence the choice of putting it in Article I, Section 9, just like Madison' Amendment and the XIV are a denial of power to the states. But I suppose it could be done this way, too.
However, setting up a new article for citizens' rights require going through the Const's text with a fine comb and picking up all the stuff that looks like a right. Tentatively, I propose the following as the content of the new article:
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
No Bill of Attainder or ex post facto Law shall be passed.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and excessive punishments inflicted.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Rights protected by the constitutions of the several States, including their domestic institutions and privileges, are not to be infringed by this Constitution or any law of the United States.
No State shall violate the equal rights of conscience nor the freedom of speech or of the press nor the trial by jury in criminal cases nor shall any state deprive a person of life, liberty, or property, without due process of law.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Additionally, the 10th Amendment, powers reserved to the states, and our revision to it, would occur in OTL Article IV, which would become TTL's Article V. Article IV would be the Bill of Rights.
Possibly, but in the framers' minds, at least pur "domestic institutions" clausle would look like a civil rights garantee, too, as well as Amend 10 (IMO these two provisions look best as separate, if consecutive, clausles. Keeps the text simpler). So IMO it works best if you stuff it all together, as in my above list.
Well, that's one possible guide, but not really definitive, since the Confederate Framers had their own ideas about things.
Indeed. I've just used them as a possible example of how to incorporate the BoR in the text of the constitution, and as a source of possible good ideas for genuine efficiency improvements as they may result from in-period hindsight (or ITTLs, prophetic insight on the part of the 1787 framers).
There were several other innovations of them, such as making slaveholding the most ironclad "right" of the constitution, or forbidding protectionist tariffs or expenses for infrastructure improvements or denying voting rights to non-citizens, which look like the Southerners venting off their own pet peeves, and not a genuine efficiency improvement of the political process or the nation's welfare or something the framers as a whole would agree a compromise upon. So I left them strictly alone. By the way, by looking at their own constitution, the lie is put to the confederate apologists' claim that their own revolution was to safeguard states' rights and not to safeguard slavery. Very few additional rights are given to states, whileas you find a truckload of new clausles making slavery sacrosanct.
The only other innovation of them that has questionable merit is a Presidential six-year one-term limit, but term limits to Presidents in 1787 opens so big a can of worms (or better, butterflies) that I'd prefer to leave discussion of that when we have pretty much exausted most other topics.
There are some other sources. Larry Sabato has some ideas about a very different Constitution, but they aren't really germane to a differen 1787 Constitution (except for the represenation guarantee).
Hmm, I don't have the actual book, but I'm presently reviewing the shorthand list his proposed changes on wikipedia. His proposals certainly deserve further reflection on my part, and further discussion from both of us, but indeed several ideas of him, while very useful would simply look too anachronistic in 1787.
Anyway, to make a very cursory review for now :
Expand the Senate to 136 members to be more representative: Grant the 10 most populous states 2 additional Senators, the 15 next most populous states 1 additional Senator, and the District of Columbia 1 Senator.
The 1787 framers wouldn't likely touch this with a 10-foot lead pole. Equal number of Senators was a cornerstone of the Great Compromise.
Appoint all former Presidents and Vice Presidents to the new office of “National Senator.”
Hmm, this may have a good precedent in the Roman Senate, so it may be something that would occur to the classic-minded Framers. But we need more detail on the workings. How much would the term of a national senator would last ? the usual six years ?
Mandate non-partisan redistricting for House elections to enhance electoral competition.
An anti-gerrymandering provision. We are already concocting something about it, and it's something the Framers might think of, given the "rotten boroughs" problem of the British Parliament. We are already working on this.
Lengthen House terms to 3 years (from 2) and set Senate terms to coincide with all Presidential elections, so the entire House and Senate would be elected at the same time as the President.
Hmm, I'm doubtful on this. It would contrast the framers' intent to slow the pace radical political change would sweep through the government. Your opinion ?
Expand the size of the House to approximately 1,000 members (from current 435), so House members can be closer to their constituents, and to level the playing field in House elections.
Hmm, a clausle that gives an upper size limit to the population of districts and/or mandates roughly equal population size in districts ? This is quite interesting. Not something that would be an immediate concern to the FF of a sparsely populated country, but since they are going to have excellent foresight, this could occur to them as part of making district redistribution fair. So this ought to become part of the representation clausle. We only need to be mindful that in this kind of TLs, the USA is going to become way bigger than OTL (at the very least, pretty much all of North America, and quite possibly South America, Australia, etc.) so the House needs to become manageable. The biggest working OTL legislature is about 600-700 members.
Establish term limits in the House and Senate to restore the Founders’ principle of frequent rotation in office.
Quite possible, but this really needs to be discussed together with Presidential term limits.
Add a Balanced Budget Amendment to encourage fiscal fairness to future generations.
A very worthy concern, and one that would give a big efficiency boost to the constitution, but we are already tackling some of that issue with our own fiscal responsibility procedure. True, that won't check the case of Congress and President working together to expand the deficit. This is mainly a modern concern (the USA didn't got a deficit till the 20th Century, IIRC) but it is also something that might come to the attention of fiscally-minded, foresighted framers. Do you think we should tackle the issue now ?
Create a Continuity of Government procedure to provide for replacement Senators and Congresspeople in the event of extensive deaths or incapacitation.
This only becomes a vital concern with the invention of WMDs. I have difficulty envisaging how this could become a concern for the framers. It would require them being worried about a successful invasion that captures most of the government (although, this almost happened in the War of 1812).
Establish a new 6-year, 1-time Presidential term with the option for the President to seek 2 additional years in an up/down referendum of the American people.
Presidential term limits, that eternally-controversial topic. Oh well, if we really need to tackle that issue now, my own proposal is for a six-year term with the prohibition of
consecutive reelection (so as not to deprive the country of the option to seek the expertise of elder statesmen if the need arise). Likewise, any hard limit to congressional terms should only forbid
consecutive reelections. That breaks the power advantage of the incumbent, but leaving the nation the freedom of recalling expert statesmen is very useful.
Limit some Presidential war-making powers and expand Congress’s oversight of war-making.
This is another concern that only became real in modern times. All US wars in the first century and half were fought after a Congressional DoW, and admittedly, all major US wars have been fought after Congressional approvation, effectively equivalent to a DoW in all but name. The most that could be done about it is to constitutionalize the War Power Act requirement that the President needs Congressional approvation to commit US troops in a long-term engagement. Any more than that and it would destroy the President's power to react effectively to sudden threats. It is not the constitution's fault that the Congress may lack the spine to force the President to pull the plug on hopeless or unpopular military commitments.
Give the President a line-item veto.
We have already covered that.
Allow men and women not born in the U.S. to run for President or Vice President after having been a citizen for 20 years.
That's wholly doable. That's the kind of foresight that could have easily occurred to the Framers.
Eliminate lifetime tenure for federal judges in favor of non-renewable 15-year terms for all federal judges.
Grant Congress the power to set a mandatory retirement age for all federal judges.
Apparently not a bad idea, but I admit I lack expertise on this issue. Your opinion ?
Expand the size of the Supreme Court from 9 to 12 to be more representative.
Give federal judges guaranteed cost of living increases so pay is never an issue.
Thees two don't need any change in the constitution.
Write a new constitutional article specifically for the politics of the American system.
Adopt a regional, staggered lottery system, over 4 months, for Presidential party nominations to avoid the destructive front-loading of primaries.
Totally anachronistic. Primaries didn't even exist as a concept in 1787.
Mend the Electoral College by granting more populated states additional electors, to preserve the benefits of the College while minimizing the chances a President will win without a majority of the popular vote.
This is tricky, given that it impinges on the integrity of the Connecticut Compromise, but it might be wholly doable. It would probably require that several mini-states belong in the original row.
Reform campaign financing by preventing wealthy candidates from financing their campaigns, and by mandating partial public financing for House and Senate campaigns.
Another wholly anachronistic provision.
Adopt an automatic registration system for all qualified American citizens to guarantee their right to vote is not abridged by bureaucratic requirements.
Hmm, this might on a stretch be part of equal representation, but how to word the issue in a form recognizable to 1787 people ?
Create a Constitutional requirement that all able-bodied young Americans devote at least 2 years of their lives in service to the country.
No. In the Framers' mind, this would be sanctioning military draft, something abhorrent in their experience.
I'd consult the Anti-Federalists as well (there are a couple different collections of Anti-Federalist writings);
Kindly point me up to sources of thse that are accessible online, or post what you would like as genuine worthy ideas of theirs ?
also, there've been a number of different proposal made to amendment the Constitution OTL.
Hmm, several of these concern stuff that we have been discussing or might just start to, such as line-item veto, fiscal responsibility, balanced budget, presidential and congressional term limits. etc. Much of the remaining stuff has been just banner-waving in the culture wars, or wholly anachronistic in 1787 (e.g. child labor, the ERA).
Now, there are some glaring omissions in the Constitution whose addition would be a genuine improvement.
E.g. I've always thought that the original document could have been much improved by adding to the BoR the essential provisions of the XIV Amendment
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Now, to a degree we have already incorporated part of it (the due process) in the expanded form of Madison's Amendment, but it would be very nice if we could find a way to add the "privileges and immunities" and "equal process" garantees to the BoR (although the latter would likely need a rewording so that it does not apply to slaves).
Moreover, I'm always thought that the Constitution would be much improved if the BoR would contain an explict protection of privacy. I find myself struggling to provide a wording that would protect that and 1787 people would acknowledge as a worthy concern.
I've made a list of some defects we haven't touched on just yet.
By all means, please post them straightforward.
Well taking away complusory taxation isn't all that looney in 1787; that a country / states that had just fought a very bloody, expensive (both from the colonies point of view, per capita) war to prevent taxation would not less than ten years after winning its independence seek to impose taxes on itself is not an easily deducible development.
Nonetheless, the fact the framers saw fit to grant Congress a very broad power to tax shows how vital to the well-functioning of government they acknowledged it (esp, after the experience of the Articles of Confederation). Tax resistance has been a long-standing undercurrent of the fringes of American political thought, but I really don't see the issue ever getting enough momentum as to put a serious block in the ratification process. Notice how easily the newborn federal government dispersed the Whiskey Rebellion.
The vote to ratify in several key states -- Virginia and New York -- was very close.
In all likelihood, incorporating the BoR will make them rather more favourable to ratification, as the main objection is taken away.
They will want some kind of indiciation that their concerns are being dealt with; the process of proposing the Bill of Rights provided just that OTL.
This assumes that their objections to the Constitution are still so substantial that they would still want some changes be made as the price of their ratification, even if the BoR concern is already satisfied. I'm quite doubtful of that. Which would such concerns and changes be ?
I'll grant that for the 11th Amendment, but not for the 12th. The mistake made in creating the process of Presidential and Vice-Presidential selection wasn't just technical: it was that the Founders had no experience with the operation of political parties nor of the role of parties in successful democracies / represenative governments.
True, however, it's far from impossible for them to become aware of the danger of putting together a mutually-hostile P and VP in the same Administration. They might hearken to the experience of Ancient Greece and Rome. E.g. one of them might compare it to "putting Caesar and Silla in the same government".
The process as initially outlined is an attempt to organize an American political system that the Framers expected would remain focused on individual states. In the abscence of a great man like Washington, the system expects that there wouldn't have been consensus among the states as to the choice of President. Hence, they each get two votes, one to waste on a favorite son, one to chose their favorite non-resident of their state. That's not two (or more) coalitions of ideas and interests contesting the election in order to forward its policies and agenda in governance and law. In many ways, it's more like a system the Ancient Greeks or Roman might have used. The Framers didn't think the VP would be the 'opponent' of the President, just the next most popular, most well-liked, most influential figure. This change is reflected in the fact that in the original version, not only is the Vice-President the runner up, but the House selects from the top 5 candidates, not the top 3.
This is all true, but I would point out that you can still envisage this kind of system, but also be mindful of the risk of electing mutually-hostile influential figures, even in the lack of a true party system. Creating independent scrutinies for P and VP still allows the selection of the next most popular and influential figure as VP, but ensures you don't elect two sworn enemies. And this may occur even in the lack of parties. You indeed sacrifice a bit of the opportunity to waste a vote on a favorite son, but you are garanteed a more efficient government, even if ytou lack parties. So I deem they would have chosen the separate ballot, if just the thought of the issue had occurred to them.
or that they stumble into a better arrangement by accident. I'd take the latter route -- the question is how the stumbling might come about.
See my point above, they could have just thought that " we must not elect Caesar and Pompeus together".
I'd also argue that even the system for deadlocked elections created by the 12th Amendment isn't sound. The difficulty and unpredicatablity posed by the House electing by states -- and the inability to form anything like a co-alition -- has provided a singnificant incentive to extraconstitutional practices.
You are right that such a system isn't very efficient. However, just like the Electoral College, it was a serious nod to states' rights.
Hmm, tentatively, how about we strike the House electing by states, and we create a double majority:
But in choosing the President, a quorum for this purpose shall consist of two-thirds of the whole number of Representatives from two-thirds of the states, and a majority of the whole number from a majority of all the states shall be necessary to a choice.
Depending on the phrasing, it might go in my proposed Article IV. If it has the air of a right--i.e. a vague guarantee--this should be the case; if it spells out a mechanism, it should go where you suggest.
I'd imagine the phrasing should be something like this: "The manner of election of the Representatives of the people of the United States shall not violate fair and equitable practices and should in all cases endeavor to express the free choice of the respective community of electors."
A nice wording. I suppose this would also be easily interpreted as to mandate districts roughly equal in size. Do you think it would also be strong enough as to mandate automatic registration of voters, and to forbid disenfranchisement of felons ?
Tentatively, IMO it looks more like a garantee on electoral fairness than a civil right, so I'd put it in Article I. But I'm open to contrary arguments.
Six for Quebec? Seems a bit high. Also, the names are liable to be very different here, depending on the exact method of conquest of Canada. Umbric Man has a TL going with 2 different Canadian states.
That's quite right, but for simplicity I was assuming here that the Canadian colonies simply join the bandwagon of the Revolution since 1775. As for Quebec, I was giving them as many representatives as New York.
I haven't read Big Tex's TL, but it seems to me very iffy. Do such states retain the minimum representation in the Senate and the House? Such a method violates the symmetry in the respective weights of the states in electing the President and in forming the Congress. I would have to imagine that such islands would be ammenable to forming groupings in order to form states. Furthermore, how much smaller is the smallest of them than Rhode Island?
Well, in his TL all the British North American colonies join the Revolution from the start, and so they lobby to enter the Union each island as a separate state. That means:
Original Colonies
1. Quebec
2. Nova Scotia
3. St. John's Island (OTL Prince Edward Island)
4. Newfoundland
5. Massachusets
6. New Hampshire
7. Rhode Island
8. Connecitcut
9. New York
10. Pennsylvania
11. Delaware
12. Maryland
13. Virginia
14. North Carolina
15. South Carolina
16. Georgia
17. East Florida
18. West Florida
19. New Jersey
20. The Bahamas
21. St. Lucia
22. St. Kitts
23. Jamaica
24. Honduras (British Honduras, OTL Belize)
25. Barbados
26. Nevis
27. St. Vincent and Grenadines
28. Montserrat
29. Antigua
30. Anguilla
31. Mosquito Coast (Includes the Bay Islands)
32. Virgin Islands
33. Cayman Islands
34. Dominica
35. Grenada
36. Rupert's Land
37. Tobago
38. Barbuda
Now, in any Ameriwank TL where the USA manage to include most of the above in the 1783 row, we have a problem about the undue influence of micro-states on the Electoral College (and the Senate, too, but that's probably unavoidable). Of course, that could be avoided if you could persuade the Caribbean island microstates to from groupings of properly-sized states, but what is more feasible, to do so or to make exceptions to state equality ? I dunno. But the problem exists in any TL where Ameriwank conquers the Caribbean before the Constitutional Convention.
And so charter will be.
Perhaps the following:
Congress shall have power...to charter agencies and institutions, including a National Bank, independent of the executive of the United States, provided that the purpose and activities of such agencies conform with the powers delegated by this Constitution to Congress and do not encroach upon the responsibilites of the Executive of the United States. The establishment of such institutions shall require a three-fifths vote in both Houses of Coungress. The charter of such institutions shall specify a term the institution. The principal officers of such institutions shall serve a term specified in the institution's charter, shall be selected by the Senate upon nomination by the President of the United States, and shall by removed by impeachment by the Congress of the United States, death, or find of permanent disability by a majority vote of the President, Vice-President, and Principal officers of the Executive Departments confirmed by Congress.
This requires, however, having a more detailed assessment of what the Executive is and how Executive Departments are created. Furthremore, it could very easily be taken to far: for example, is the Post Office such a Department?
Perhaps just this: "Congress shall have power to establish agencies and institutions, including a National Bank, in order to carry out its delegated powers. Chartering such institutions shall require a three-fifths vote of both Houses of Congress."
The latter wording seems more proper for the generally borad provisions of the Constitution. But I would really add some bulwark for the executive.
Hmm, what about a really general provision that covers both independent agencies and executive departments, and mandates co-decision between legislative and executive, so the political process can sort out what is what ?
"
Congress shall have power to charter independent agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such agencies, institutions, or departments shall require a three-fifths vote of both Houses of Congress and the assent of the President. The charter of the independent agencies and institutions shall specify a term to them ".
Creating a pocket veto exception ensures that the responsibilities of the President cannot be easily usurped. However, it might even theoretically work without the absolute veto, just the ordinary veto, so:
"
Congress shall have power to charter agencies and institutions, including a National Bank, in order to carry out its delegated powers, and establish Executive Departments, in order to fulfill the responsibilities of the Executive of the United States. Chartering or Establishing such agencies, institutions, or departments shall require a three-fifths vote of both Houses of Congress. The charter of the independent agencies and institutions shall specify a term to them".
What do you prefer ?
Anyway, the main difference between agencies and departments shall become that the former are not subject to the President's power of firing, only Congressional impeachment. But the wording about their nominees rather belong in Article II.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,
heads of independent Agencies, Institutions, and Executive Departments, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of
Agencies, Institutions, or Departments.
The clausle about the Presidential power of firing shall clarify the nature of the independent agencies, thus striking their main difference with Executive Departments.
The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Departments may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor. The principal officers of independent agencies and institutions shall serve a term specified in the charter of the agency or institution, except in cases of impeachment. Congress may by Law vest the removal of the other civil officers in such agencies and institutions, as they think proper, in the President, in the Courts of Law, or in the Heads of their Agencies or Institutions, when the officers' services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct, or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor .
Well, I suppose if Hamilton wanted it, we might allow it.
Yes, he wanted it as much as he wanted a protectionist tariff and a national bank. Both the tariff and the subsidies were equal parts of his master plan to create and American manufacturing industry. Check his "Report on Manufacturers" to Congress.
However, I think he was misguided in supposing it a useful tool of policy. It seems to me like an excuse for state interference and pork barrel.
Well, it would make some New Deal programs less contentious. Not all subsidies to industry need to be wasteful. In modern times, this would cover subsidies to research, too. This would also probably cover things like relief from natural disasters.
And we are putting a lot of anti-pork-barrel checks in this improved Constitution, anyway.
I kind of like the idea of the oath: it's really no different than having various Cabinet Secretaries testify before a Congressional Committee, when they also must take an oath. I suppose the difference is that you imainge Congress granting them a formal "seat"; I had merely envisioned floor privileges. Also, the phrase "request and require" I thought important to denote Congressional authority to compel testimony. It's the same phrase used in military orders.
Indeed I thought of this provision giving Cabinet Secretaries a full non-voting seat in the House, albeit limited to discussing things related to their Department. I envision them being able both to address the whole House, and testify before its Committees. That's why I thought of the oath as a bit odd, when they speak in the House. It seems to me a bit too humiliating for heads of Departments, to take an Oath before they can speak, even under a theroy of congressional supremacy. OTL, the oath is requires becasue they are assimilated to any other congressional testimony. What about we keep the whole "request and require" phrase, as a hallmark of Congressional authority, and we drop the oath ?
But Congress may, by law, grant to the principal officer in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.
A thought: should this provision cover the heads of independent agencies, too ?
If so, it becomes
But Congress may, by law, grant to the principal officer in each of the Independent Agencies and Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his agency or department. When any such officer shall enter onto the floor of either House, Congress shall have authority to request and require him to provide information appertaining to his agency or department, save that on the advice of the President issues of sensitive import to the security of the United States shall be discussed only in closed session of Congress.
I'd imagined that it simply became traditional. Furthermore, delivering "information on the State of the Union" and doing so in person to a Joint-Session of Congress are very different. The Constitution requires the former, not the latter. Since Wilson (and before Jefferson) the State of the Union was a floor speech, but it hasn't always been.
Hmm, I really doubt any such tradition would take root. I can see early Presidents protesting that they already took an Oath when entering the office, and that suffices, thank you very much.
Again, Cabinet officers do this all the time when they go before a committee. All they'd be saying is "I swear to tell the truth, the whole truth, and nothing but the truth."
That because OTL they don't have flooe privileges, so they have to be treated like any other congressional testimony. I assume that if the Congress really cares, they can write the Oath requirement in the legislation creating the non-voting seat and the floor privileges, but there is already going to be the "request and require" provision to establish congressional supremacy, why should Framers be so much worried that Secretaries are going to lie to Congress to write an Oath requirement in the very Constitution ?
I agree. This seems very strange. I'm not even 100% sure of the supermajority clause: it grants a lot of authority to the Executive. A "small government" President, like Jefferson, could easily force a shut down without a Congressional majority. In such an instance, it would be easier to impeach (but not to convict) a sitting President than to increase the budget over his (or his Cabinet officers) advice.
Three-fifths isn't such a difficult supermajority to achieve, if the Congress really cares about some program over the President's objections.
Plus who gets to request a budget for the "Independent Agencies"?
Good catch.
Now, about the budget of the Independent Agencies, the issue is whether we (and the Framers) think that as a rule there would be sufficient cooperation between these agencies and the President as to submit them to the Presidential power of fiscal restraint, or if it would be better to make them budgetary independent. Therefore, I propose you two wordings:
Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of agencies, institutions, and departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the United States.
OR
Congress shall appropriate no money from the Treasury except by a vote of three-fifths of both Houses, unless it be asked and estimated for by some one of the heads of departments and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies and those of its institutions and agencies; or for the payment of claims against the United States.
No wording is perfect: the former creates the risk of the President purposefully trying to starve an agency he doesn't like by withholding his budget from Congress, which would require the supermajority to fund. The latter gives an easy-spending Congress a huge loophole to exploit. All in all, I would deem the former wording preferable. Make the agency's budget be requested by agency's head and transmitted through the President to Congress, and use the 3/5 supermajority in the case there is political conflict between the Agency and the President.