“Every constitution requires change occasionally,” Michael B. Rappaport, professor of law at the University of San Diego, writes in “Renewing Federalism by Reforming Article V: Defects in the Constitutional Amendment Process and a Reform Proposal” (Policy Analysis no. 691). Unfortunately, the amendment method laid out in Article V of the U.S. Constitution suffers from a significant defect. In his analysis, Rappaport examines the roots of Article V, noting in particular that the national convention method — which allows state legislatures to bypass Congress — was put in place “to prevent a single government entity from having a veto over the passage of an amendment.” This mechanism, however, has never been used because, simply put, it doesn’t work. Rappaport explores the various problems with the national convention method, noting that they each stem from uncertainty — ” uncertainty about what the law requires and uncertainty about the actions of the relevant political actors.” The resulting overreliance on the congressional approval method has had an enormous impact on an already far‐too‐centralized government. “Thus, the increasingly nationalist character of our constitutional charter may not be the result of modern values or circumstances, but an artifact of a distorted amendment procedure,” he writes. Rappaport offers a reform to correct the defect and identifies a realistic path for enacting that reform. By returning power to the states, he hopes to deprive Congress of the effective veto power it currently holds over the amendment process, thereby “helping to restore the federalist character of our Constitution.”
Fair Credit after 40 Years
“Everyone is a potential victim of an inaccurate credit report,” Sen. William Proxmire (D-WI) declared on January 31, 1969, marking the introduction of the Fair Credit Reporting Act (FCRA). While the bill was intended to address the many information issues stemming from credit bureaus at the time, those problems have only multiplied in the 40 years since it became law. In “Reputation under Regulation: The Fair Credit Reporting Act at 40 and Lessons for the Internet Privacy Debate” (Policy Analysis no. 690), Jim Harper, Cato’s director of information policy studies, explains why federal regulation has failed to provide credit reporting that is accurate, responsive, and confidential. Reputation systems such as credit reporting are “complex social mechanism[s],” Harper writes, with a number of “conflicting values that drive them” — including “identification issues, contested notions of relevance, and the surprisingly difficult problem of arriving at ‘fairness.’” Regulators are ill‐equipped to make such value‐laden judgments, and instead implement rules that have “protected the credit reporting industry from competition, denying consumers the benefits of innovation.” Harper outlines the list of abuses that initially led to the FCRA and examines why contemporary complaints closely mirror them. The experience over the last four decades suggests not only the difficulty in establishing a credit reporting system, but also “a caution about regulating our information economy top‐down.” “Deviating from our nation’s founding principles of freedom is as much a mistake in the information arena as in any other,” Harper concludes.