How to tie ourselves to the mast: The Persistent Charter
Here I propose a new type of US Federal enactment: The Persistent Charter.
It lives above statues and below constitutional amendments in both the superiority of force and how long it takes to enact/repeal. It would give the federal government a new way to tie itself to the mast, reducing uncertainty and smoothing out bumps in the positive law landscape.
The problem
People and economies are amazingly able to adapt to change, but there are limits. But many adaptations take time and money, and people will not make those adaptations unless they have a reasonable expectation that those adaptations will be worth it.
The farther into the future you can make predictions and the more confident you are about those predictions, the more time and money you will be willing to spend on making adaptations suitable for that future, and the more of those adaptations you can make the better off you will be if that future ultimately arrives.
The US system of government can be very unpredictable. Statutes and executive actions are basically whims and can be enacted almost instantly… and can be reversed just as quickly. Yikes.
Constitutional amendments on the other hand directly modify the operating structure of the government, so are risky at a meta level. You could, for example, enact a constitutional amendment that eliminates the ability enact new constitutional amendments and brick the system. Yikes.
The solution
A Persistent Charter would have supremacy over all statutes, and the constitution (as amended) would have supremacy over all Persistent Charters.
Once enacted, you could reasonably depend on a Persistent Charter being the law of the land for a minimum amount of time except under truly exceptional circumstances.
Mechanics
Require a supermajority in the legislature to pass. The ensures that there is broad support across constituencies.
Require passing in multiple, consecutive sessions of the legislature to enact. This insures that there is broad support across time and election cycles.
Require active presidential signing on each cycle. This ensures that there is continuous, positive executive support. Probably no veto override path.
I do not know the optimal values for how much supermajority or how many consecutive sessions, but I think 3/5 and 3 are a good place to start the debate.
HOWTO
It would require a constitutional amendment to create Persistent Charters. We can do this. See draft amendment below.
Failsafe
If something went wrong with a Persistent Charter, you could always effectively repeal it using a Constitutional Amendment, but since that process is very hard you can still have reasonable confidence that a Persistent Charter will likely be persistent.
New Hierarchy of enactments
| Rank | Type of Enactment | Who Makes It | Typical Time to Enact / Repeal |
|---|---|---|---|
| 1 | U.S. Constitution & Amendments | Proposed by a ⅔ vote of each chamber or an Article V convention; ratified by ¾ of the states | Fastest ratification (26th Amend.) was 100 days; most finish in 1–2 years, while the 27th Amendment took 202 years. Repeal requires another amendment, so the timeline is identical. |
| 2 | Persistent Charter (new category) | Super-majority of 3/5 of both houses in three consecutive sessions, signed by the President each time | Cannot finish in less than about 2–3 years. Undoing it demands the same three-session super-majority, so repeal is equally arduous. |
| 3 | Federal Statute (Act of Congress) | Simple majority in House & Senate; President signs (or veto overridden by ⅔ of each chamber) | Emergency bills can pass in days, but most take weeks to months. Congress repeals or revises by passing another statute under the same procedure. |
Proposed Amendment
Many thanks to o3 for all the hard word that went into drafting this amendment.
Amendment XXVIII
(proposed by Congress, ______ 20__, ratified by the legislatures of three-fourths of the several States, ______ 20__)
Section 1. Creation and Legal Status
- Persistent Charters are hereby established as a form of Federal enactment that shall have binding force throughout the United States and all territories thereof.
- Each Persistent Charter shall possess higher authority than any statute, treaty, executive order, or regulation, and lower authority than this Constitution or any amendment hereto.
Section 2. Mode of Enactment
A Persistent Charter shall become law only if:
- Identical text is approved in each of three consecutive regular sessions of both the House of Representatives and the Senate by a vote of at least three-fifths of the Members present and voting in each Chamber; and
- The President of the United States signs the measure within ten days (Sundays excepted) following each approval.
- The Archivist of the United States, upon receiving the third such approval and signature (or veto override), certifies the Charter and causes it to be published in the Statutes at Large and the Code of Laws of the United States within thirty days.
Section 3. Persistence and Repeal
No provision of a Persistent Charter may be amended or repealed except by Another Persistent Charter enacted under the procedure set forth in Section 2.
Section 4. Judicial Review
Courts of the United States shall give full effect to Persistent Charters and shall resolve conflicts of law in accordance with the hierarchy stated in Section 1. Questions regarding the validity of a Charter’s enactment procedure shall be justiciable.
Section 5. Implementation
Congress may enact legislation, consistent with this Amendment, to carry out its purposes, including provisions for public notice, record-keeping, and time-computations related to the “session” requirement.
Postscript – The Government Microkernel
The current constitution is a hodgepodge of rules, meta-rules, meta-meta-rules, and cruft.
What we really need is a government microkernel. This is the minimum set of meta-meta-rules about how to make meta-rules.
If you do a good job designing the microkernel, then you should never need to change it. All other changes you might want to make should be possible within the structure of the static microkernel. And it should be non-brickable – that is, you should never be able to do something within the context of the microkernel that permanently breaks it.
What does a government microkernel look like? What properties must it have? What properties must it not have? Is it even possible to create a microkernel that does not itself embody some influence over the meta-rules and rules it allows/encourages? We, the people, want to know!
Possible simplification: Sticky Statutes!
The legislature can bring back up any statute enacted in the previous session for a “confirmation vote”. If the statute passes again and is signed by the president again, then its “confirmation count” is incremented by one.
Any new statute that repeals or modifies an existing statute must have at least as many confirmations as the statute it is modifying.
I could imagine some statutes that we care a lot about getting routinely brought back in EVERY new session to further lock them in. Maybe the microkernel i just the description of this process and there is no constitution or constitutional amendments – just a body of statues of varying levels of stickiness and the base of very sticky ones form a defacto constitution? But what if the universe changes and there are some sticky statues that are very well dug in, how can the system react quickly? Maybe you just have to be very very careful about the very sticky ones to make sure they truly are universal?