The Only Way to Save America: Constitutional Amendments and the Convention Idea
I. The Grave Dangers We Face
Across the nation, voters are furious with “gridlock” in Washington, D.C. One of the few things most Americans agree on, despite our sharp political divides, is that there are deep problems with our federal system, starting with a nebulous sense that the legislature and some administrative offices are bought or corrupt. Thus people turn to more radical or “populist” candidates who talk about this corruption and promise to fix it: for example, people flocked to Donald Trump and Bernie Sanders during the primaries in part because Trump and Sanders portrayed themselves as determined to overcome “the Washington establishment” and “Wall Street” (whatever exactly these phrases mean). But neither they nor their opponents carefully defined the procedural problems that are making the federal government ineffective in promoting economic opportunity across the country, or in improving education and responsible citizenship, or boosting civic solidarity and defending social justice here and abroad. They never discussed specific constitutional fixes to the underlying problems; thus their supporters did not learn from their leaders about the true roots of the problems that are so angering and upsetting them, and the illusion persists that the solution is just to elect better people who owe no favors to lobbyists – even if that is only because they are billionaires.
On the contrary, objective research on the matter shows that most politicians are not directly controlled by bribes from donors (see, for example, Lawrence Lessig’s Republic, Lost and Mann and Ornstein’s It’s Even Worse than it Looks). The problem is instead that our current election procedures and election finance laws promote a culture of friendship and informal interdependencies among legislators and the donor class. And this is only one part of a much broader set of structural problems, most of which can only be fixed by constitutional amendments. It has been over a hundred years now since substantive constitutional reforms were made to our system, such as the vote for women and direct election of senators: we are desperately overdue for a major a constitutional overhaul. We replace factory equipment within 20 years or less; parts of our basic legal capital can certainly rust through in 50 years or less. Other advanced democratic nations have made large structural reforms since World War II, whereas we relied on the Civil Rights Act and Voting Rights Act, which are only statutes that can and have been weakened by later laws and court decisions. Even for the equal status of women we rely on Supreme Court precedent that the Court could overturn.1This predicament is partly due to our constitution being harder to amend than the basic law of any other advanced democratic nation on Earth, which suggests that among other things, we might consider amending the amendment clauses themselves – e.g. to require ratification only by two-thirds of the states and approval by three-fifths of both chambers when the amendment originates in Congress.
People are naturally worried about opening up constitutional change, especially in an era of political extremism. But I will argue that no other remedy can begin to cure the roots of our political diseases. Without constitutional reform, our system will grow increasingly dysfunctional: voters will get more and more frustrated that the party they put in power cannot get much done; such voters then either become alienated (checking out, not voting) or turn to ever-crazier outsiders in hope that they can be more effective, only to see the cycle repeat. “Coastal liberals” and “conservatives” (libertarian, evangelical, or otherwise) in our nation’s interior will grow farther apart, as their political leaders increasingly try to appeal to their base by demonizing the opposing group, and focus more on blocking their opponent’s agenda rather than moving any bipartisan bills forward. As a result, compromise on large national problems such as trade policy, religious freedoms, finding ways to pay back our enormous federal debt, or how to normalize the status of 11 million plus “illegal” or “undocumented” immigrants will become even more unfeasible. Unless we have the courage to address the ultimate sources of the dysfunction that is rotting out the heart of our democracy, we will leave our nation in much worse shape for our children and grandchildren. Who would sit idle, knowing that termites were eating the main beams of the house in which their children sleep? Refusal to move constitutional reform, then, is a betrayal of our deepest values.
America’s fate also matters for the whole world: since the Civil War, the United States has been a leading symbol and defender of the value of democratic rights and processes, helping to spread these norms across the globe. If our citizens grow increasingly ignorant, divided, and uncooperative while our system produces more irrational results, the promoters of nationalist despotism in Moscow, Beijing, and Tehran will see their stars rise even higher. As a result, people across the world will suffer under resurgent military and theocratic dictatorships. The stakes are too high to assume that it’s best to ‘play it safe’ and ‘leave the constitution alone,’ as people often say, as if it is okay to keep trying to do the best we can within our current model. Continuing to ‘muddle through’ this way is irresponsible when our political system is already at the trainwreck stage, and only more fundamental reforms can meet our nation’s needs.
II. The Solution: A Series of Constitutional Amendments Focused on Process
Most Americans realize that something is deeply amiss; but few understand that the fundamental problems with our federal system are structural: no President or political party can solve them simply by winning an election anymore. Even holding the Presidency and both houses of Congress with a filibuster-proof majority, which is almost impossible, is not enough to break through gridlock, given the power of major lobbies and special interests.2Note that when Obama had 60 senators supposedly on his side in 2009 before the untimely death of Edward Kennedy, having only just enough to break a filibuster meant that each single senator was crucial – and thus every one of them could, and some did, engage in brinksmanlike struggles over a key piece of legislation like Obama-Ccare, holding it hostage until they could extract unrelated goodies and pork-barrel benefits. To avoid this scenario, a President would probably need at least 62 or 63 senators, which seems unlikely to happen in any election soon. Our federal government will never work well (or even well enough) again until a vital set of basic structural reforms are passed that require constitutional amendments, including at least
- ending the filibuster in the Senate, which currently enforces even more extreme minority rule.
- direct election of the President with automatic runoff to enable third parties without spoilers.
- a fair national primary system with rotating dates for all states.
- campaign finance and lobby limits (rejecting money = speech, corporate speech = personal)
- an impartial redestricting system ending gerrymanders that protect safe seats and create minority rule in the House of Representatives.
- two senators for the District of Columbia, and one for all other US Protectorates, together with House members proportionate to their populations.
- statehood for Puerto Rico, as a majority of their voters have requested in 2012.
- reasonable deadlines for mandatory Senate votes on Presidential appointees at all levels.
- an option for federal courts to refer a law back to Congress for mandatory reconsideration
- agenda liberalization to prevent House leaders from blocking votes on legislation enjoying strong bipartisan majorities.
- a requirement that every high school student take at least one semester of Civics covering the federal budget and basic tax law in the last 50 years, along with elementary macroeconomics.
Fixing Our Elections
Let’s look at a few of these amendments in a little more detail. During the bitter 2016 election, many people expressed anger at Hillary Clinton for taking large campaign donations even though that is what our system has required for decades – unless, that is, one has hundreds of millions in cash to fund one’s own presidential campaign. Similarly, our federal legislators are largely forced to raise money the way they do. For decades since the 1970s, campaign finance laws such as the compromise McCain -Feingold bill tried to limit this system; but the Supreme Court’s Citizen’s United decision (following the older Buckley v. Valeo precedent) gutted what remained of these limits. As a result, it is even clearer now that the only viable fix is a constitutional amendment that directly overturns Citizens United:
1. Freedom of political speech in the United States shall be interpreted to make possible limits on the political power that can be wielded through monetary power. (i) Paid political advertising is subject to legal limitation in the interests of limiting inequality in political voice or influence among citizens. (ii) For-profit corporations and non-profits that spend more than 10% of their budgets on lobbying do not enjoy the same free speech protections as individuals under the First Amendment. (iii) No one who works for a registered federal lobby can be elected to the House or Senate or hold any federal office for a period of ten years after their employment as a lobbyist; and no federal legislator or officer may work as a lobbyist for any corporation for ten years after their federal service. (iv) Congressional elections and the Presidential election shall be largely voter-financed through public funds that are made available to every candidate showing the support of 10% or more of their electorate at the primary and general election stages. (v) Federal salaries must be commensurate with those paid to comparable private-sector jobs, and with the need to support two residences (in the home state and Washington, D.C.) for legislators. (vi) And Congress shall amend the laws governing the Federal Election Commission accordingly.
While the details can be debated or altered, an amendment of this breadth and depth would work a revolution in American politics: it would end the plutocracy that has developed within our federal government, opening up federal offices to people with great ideas who only have modest means and family connections. We would no longer see a Senate made up mostly of multi-millionaires and a House boasting a majority of lawyers. Most fundamentally, it would direct our courts to stop equating money with speech and equating corporate speech with speech by real human persons. It would thus create a framework in which effective statutory campaign finance laws become possible. And although boosting the salaries of federal legislators would be controversial, the argument for it goes back to our founding fathers who saw that we would need legislators who are beholden only to the public rather than relying on monied interests to make their living.
Americans are also increasingly frustrated with the main parties and drawn to third-party candidates; but these interests are stymied by the endemic problem that such candidates can end up as “spoilers.” While Libertarian and Green candidates did not ultimately turn the election of 2016, as they did the election of 2000, they easily could have done so – and without changes, we will see spoilers in future Presidential elections, as well as in Congressional races. Republicans should be especially concerned here: without Ross Perot, Bill Clinton might never have been President. More fundamentally, a system that prevents third parties cuts off one of the main routes through which parties can develop to better serve public interests and citizens can learn from experimenting with alternative party candidates. Moreover, it is a stupid problem to have when there is such a simple and effective fix for it, namely the “automatic runoff system” (which works well in Australia for example). It works by allowing you, the voter, to rank your picks if you wish to: if your top choice candidate does not place among the top two finishers in the first round, the voting system then reassigns your vote to your second choice (if any) – or to your third choice, and on down – until one of them is among the top two first-round finishers. Thus for example, a voter in Florida in 2000 could have ranked Ralph Nader first and Al Gore second, or Pat Buchanan first and George W. Bush second; their computerized votes would then have gone to Gore or Bush respectively, but their support for a third party candidate would still have been registered in the first round. In such a system, third parties can rise to the point where they might finish among the top two without acting as spoilers during the rise. This is exactly like holding an actual runoff election (as France does, and thus Louisiana too) without all the extra trouble and cost: the secure computer system does the reallocation for you, if you ask it to. Thus we have an amendment that should be fairly uncontroversial:
2. In the general election to seats in the House, Senate, and Presidency, the federal government shall provide a secure automatic runoff system.3 It is certainly true that this would require computerized voting systems that are unhackable, or protected by multiple backups. But it is not hard to write laws that require a purely mechanical calculation of the number of votes cast at each polling station, for example, that can be checked against computerized totals; and other fail-safes can also be instituted. The bigger challenge is to make sure that foreign governments are deterred from interfering in our elections either by hacking or fake news, manipulation of candidates by blackmail, etc. That probably requires a very tough set of promised countermeasures to hacking that is aimed at election-manipulation (such as conventional military responses that are required by law when such hacking is confirmed).
But there are several other problems in our election system that involve more divisive issues of fairness that have to be faced and overcome if we are to have a democratically accountable federal government. Our primary election system, for example, is a mess; it drives parties towards the most extreme wings of their base, which has massive effects on our national well-being: it has made compromise increasingly harder and produced an atmosphere so poisonous that we cannot even rally a unified response to foreign attempts to influence our election by hacking. Yet we allow these primaries to be run by private party bosses without uniform national legal standards. Worst of all, the primary system gives enormous unjustifiable advantages to early voting states like Iowa, New Hampshire, and South Carolina that have no legitimate claim to such huge extra electoral influence. We also have antiquated voting systems in several states which make recounts very difficult when needed, and that can even affect the outcome of elections (as may have happened in 2000). Voter ID and registration has also become a divisive issue subject to cynical manipulation by the parties for mere strategic advantage: while many Republicans now harbor unfounded fears that millions of unregistered people are voting (because voter rolls are imperfectly updated), Democrats believe that voter ID requirements and limitations on polling places and dates are simply designed to discourage poorer and minority voters who tend to lean Democrat. This is a disaster for our nation: people on both sides should come together to promote a system that is both maximally inclusive and secure. A national voter ID system with uniform standards across the nation and multiple methods of registration and voting is a promising compromise that meets both goals. Solving these deep problems requires several amendments:
3. A fair national primary system with rotating dates for all states – for example, five primary election dates in each Presidential election, with 10 states voting on each date; the five groups would rotate so that each group of 10 states gets to vote in the first primary during every fifth Presidential election.
4. Election day should be a national holiday, with a minimum of two early voting dates mandated for each state (not more than two weeks before Election Day); every state should provide the same vote-by-mail opportunity; and no one should have to wait longer than one hour to vote on Election day.
5. A national photo ID card should be issued to every voter based on a uniform federal registration, with the option of online registration confirmed by document presentation at the first time of voting following online registration. This system should include processes to automatically move the voter’s place of registration once they have moved to another district, with notices issued in time for the next election cycle; it should also include automatic removal when the voter is deceased. The actual voting system and vote counting methods, including recount norms, should be set by one single federal standard for all states.
These reforms would undo the worst offenses of the Gore v Bush decision by the Supreme Court in Nov. 2000, which left voting systems entirely up to state governments without safeguards necessary to ensure democratic rights, equality of political opportunity, and fairness. That short decision was one of the most egregious in American history, perhaps third only to Dred Scott and Plessy: it implied that state governments could allocate their electors however they liked, no matter what the will of their people. This is not 1787: our Constitution should ensure that our nation is really a full democracy, rather than merely a republic controlled by any whim whatsoever of state legislators.
The Electoral College is another massively unjust and destabilizing relic of long-outdated states’ rights fears. There have been numerous attempts to get rid of it, including (as noted) an amendment supported by Richard Nixon in 1969 that almost cleared Congress but for four votes in the Senate (see the work of John Feerick in particular on this topic). Because our amendment process is so difficult, this antiquated and anti-democratic system remains: thus two of the last five Presidential elections have been won by a candidate who lost the national popular vote to an opponent who gained an outright majority of that popular vote. That is anti-populist if anything is. Although none of our political leaders stepped up to do anything about it after the debacle in Nov. 2000, the Electoral College system is grossly unjust, giving greater weight to small-population states that already have extraordinary amounts of extra weight in the federal Senate to protect their interests. Wyoming, Vermont, Alaska, and North Dakota do not need this extra weight in the Presidential election, which is especially unfair in relation to other small states that are just a bit larger (such as New Hampshire, Idaho, Nebraska, and West Virginia). How would you feel in New Hampshire with four electoral votes to represent a population that is twice the size of Wyoming’s, with its three electors?
This Electoral College system is infamous for concentrating virtually all attention on a few “swing states” (such as Ohio, Florida, and sometimes Pennsylvania in recent elections). It also leaves the votes of Republicans in California and New York, and Democrats in Kansas or Texas, “wasted” because the candidate who wins a bare majority in these non-swing states takes all their electoral votes. This demotivates many voters, suppressing participation, and leads candidates to spend far more of their time on swing states (and on issues that matter to swing state voters, sometimes to the detriment of much larger states). A straight national majority vote for the President would lead to a far more competitive campaign across the entire nation; in a close election, every state would matter (of course candidates would spend more time in larger cities, but they already do this now – just in swing state cities). When combined with an automatic runoff, this national popular vote for President would lead to far greater participation rates, and thus probably voter engagement with issues. Thus we have the following amendment:
6. Direct election of the President and Vice President by national popular vote, with an automatic runoff when no candidate receives more than 50% of the vote in the first round.
Of course, after two Republicans Presidents have been elected by national minorities in the last 16 years, this reform will appear partisan to some: some Republicans may be tempted to assume that it is simply in their strategic interest to maintain the Electoral College, despite its gross unfairness to most Americans. However, even ignoring the question of basic democratic justice, they would be incorrect. John Kerry would have won the 2004 election with a minority of the popular vote if just 150,000 votes had changed in Ohio, and Republicans could easily find themselves in this position again. Moreover, if large-population states like Texas start to vote more Democratic in coming decades, Republican strategists will live to regret keeping the Electoral College: for they will find that Democrats taking all electoral votes in CA, NY, and TX are usually unstoppable (especially if they start to win Georgia as well). Moreover, because the Electoral College system leaves so much power in the hands of state governments that can literally do whatever they want with their Electors irrespective of voters’ wishes, it opens the possibility of crises that (at best) throw the Presidential election into the House of Representatives. More importantly, the question should not be decided on strategic grounds at all, for it is a matter of basic justice – so basic, in fact, that if small-population states try to block an amendment to abolish the Electoral College, large states might be justified in fighting them by almost any means necessary, including refusing to participate in national elections, cutting all economic relations, and so on. We cannot expect to maintain a basic social contract and respect for the rule of law throughout our nation if a minority is determined at all costs to maintain domination over a majority without any justification other than their own advantages and gain: for that is simply tyranny, and it may justly be fought.
Making Congress More Democratically Representative and Functional
An almost equally deep challenge to basic democratic justice is the rise of ever-more extreme gerrymandering by both major parties in state governments to ensure safe Congressional seats. Thus a party can win the House despite getting a million or even two million less votes collectively across the nation; and with almost 80% of House seats rendered normally non-competitive, efforts shift to primary elections which push candidates more towards the extremes of both parties. That’s how we get Republican candidates who are unwilling to vote even for basic background checks for gun buyers at gun shows because they care more about extreme primary voters than about the general electorate;it’s how we get Democratic candidates who consider instituting transgender bathrooms more important than ensuring a sound manufacturing sector in the United States. We cannot unfreeze the gridlock in Congress without more competitive elections for the House. While term limits are one possible fix, they do not address the main roots of the problem; they only prevent parties from building up a core of long-term leaders with the rare experience that comes from longevity. Rather than preventing the rise of edler statesmen and stateswomen who provide vital institutional memory, a better solution is to make Congressional districts more competitive through this sort of an amendment:
7. Congressional House districts will be redrawn after each national census to maintain roughly equal numbers of citizens by drawing district lines according to an entirely abstract geometric rule 4While I do not try to define that rule here, there is a lot of promising recent work on this among mathematicians which suggests that it would not be hard to create a computer system to do most of the district line drawing. applied by an impartial, non-partisan board disconnected from state governments. The board shall adopt the best available mathematical rule, without regard to traditional boundaries based on geography, cultural or ethnic group lines, party affiliation, economic interests or class, or any other morally arbitrary distinction.
The result would be new districts that are not only more competitive, but that also mix people from different backgrounds together without ossifying any group identities or attempting to place people in interest-group categories (gathered by arbitrary line-drawing) whether they voluntarily identify with such group affiliations or not. Such a system sidesteps all the divisive questions created by well-intentioned past efforts to create majority-minority districts in the wake of desegregation. But if the reform had the unintended effect of reducing minority representation in the House, the amendment could leave an avenue open for Congress or the federal Courts to make exceptions and adjustments to prevent extreme dispersal of minority voting power. (Another possible solution would be to include multiple voting schemes that enable voters to express the strength of their preferences rather than only a bivalent yes-no preference, but investigating that complex option is beyond the scope of this short analysis).
All these amendments would still leave untouched the worst remaining legacy of the dominance of state governments at the time of our nation’s founding almost two and a half centuries ago: namely, state equality in the Senate. While Madison and Hamilton fought against this massive injustice with all their resources during the Constitutional Convention of 1787, they were finally forced to accept it in order to create any functioning federal government at all. At the time, the ratio between the largest- and smallest-population states was about 12:1; it is now over 60:1, which hugely inflates the injustice involved in giving two senators to each state. If the ratio had been anything close to that in 1787, the federalists would never have accepted the compromise establishing the state equality in the Senate.
Throughout our nation’s history, endless conflict has resulted from the inability to avoid this truly enormous concession to some anti-democratic ideologies of the late 18th century: for example, the extreme efforts made by southern legislators to maintain an equal number of slaveholding states compared to free soil states ultimately led to the Civil War. Even after the Civil War amendments, much of the gridlock in Washington D.C. is still due to this single feature, which, even in simple majority votes in the Senate, now enables representatives of less than a third of the nation’s people to block crucial legislation (while Senators representing less than a quarter of our people can prevent ratification of treaties, sustain Presidential vetoes, and even block amendments – as they did for direct election of the President). This great impediment in the American government moves our national system even farther from the kind of proportional representation that is achieved in parliamentary systems. While some democratic theorists (e.g. Thomas Christiano) would institute parliamentary proportional representation, and other legal reformers (e.g. Sanford Levinson) would write a new Constitution from scratch to overcome state equality in the Senate, I assume that this would be too difficult in the near future, even though most Americans identify far less now with their home states than they do with their nation as a whole – a 180 degree reversal from attitudes in 1787. Moreover, state equality cannot be directly amended under the current Constitution; one would first have to amend the clause that makes state equality unamendable, or (in a more revolutionary vein) write a whole new document.5 Another intriguing option would be leave the Senate intact with two senators from each state, but diminish its legislative powers towards zero. This option is not technically banned by the letter of the Constitution, though it would certainly be against the spirit of the grand compromiseprobably be impossible to get ratified as a stand-alone amendment.
However, at least the most egregious injustices involved in the grand compromise can be reined in by a series of other amendments, whose justice is all the more apparent against the backdrop of gross injustice in the basic structure of our Senate perpetuated now for over 228 years. These include reforms to bring Senate representation to Americans who are currently excluded from that body altogether, and to end the recent innovation of the filibuster, which makes the problem of minority rule in the Senate even worse still:
8. Filibusters are prohibited in the Senate and House of Representatives: debate may be extensive in time, but not unlimited, with one month set as the absolute time limit before an up-or-down vote by simple majority in each chamber. Internal Senate and House rules may never be used to bring about procedural results that violate the original intent of the grand compromise, or any other part of the Constitution as amended since its founding.
Beyond other obvious reasons for it, from a historical perspective, this change would be just: Hamilton, Madison, and the large-state delegations almost walked away from the Convention rather than accept a compromise that was so unfair to large-population states. They definitely would have walked away if the representatives of small states went even further and insisted that a mere 41% of Senators potentially representing less than a quarter of the population be able to block virtually all legislation and Presidential appointments. Moreover, the 1787 Constitution would never have been ratified if large state governments had anticipated the filibuster. Virginia barely ratified, partly because Patrick Henry was so incensed that 50% of senators representing less than a third of the nation would have a veto. Expanding representation in the Senate is another small fix at least:
9. The District of Columbia is granted two senators and House representation proportional to its population, just as if it were a state.6 An amendment to this effect did pass Congress but was not ratified within the time limit that it allowed, which is another example suggesting that Congress or a convention should avoid placing time-limits on amendments when sending them to the states.
10. Upon presentation of a democratic state constitution, Puerto Rico is granted the full status of a state with two senators, House members proportional to population, and all the other rights and responsibilities of statehood.
11. Native residents of American protectorates across the world are guaranteed American citizenship, House representation proportional to their population just as if they formed a state, and representation by one Senator.
Such amendments would not solve the basic problem with the federal Senate, but would partly offset some of the injustice of that chamber, including advantages to present small-population states resulting from the exclusion of large numbers of Americans from any representation within that upper chamber of Congress.
When combined, these reforms would end much of the gridlock that has made it impossible to pass legislation even while holding the Presidency and both houses of Congress. When a party no longer needs more than 60 Senators and approval of large lobbies that provide most of the funding for House member reelections (with safe seats, divisive primaries, no viable third party challengers etc.), party leaders will be able to craft and implement a clear agenda. A majority party will be able to pass its promised agenda – allowing its supporters a chance to learn if they made a mistake, rather than simply being alienated by gridlock. But there are other reforms that would further improve chances for principled compromise in Congress, as well as the crucial role of federal courts in our system, including:
12. The length of terms of House members shall be extended to four years, with a rotation so that half the House is elected every two years (ideally on odd-numbered years).
13. Treaty approval shall requires only 3/5ths of the Senate.
14. There shall be a sixth-month limit for the Senate to vote on all nominations made by the President, including especially Supreme Court nominations.
15. The House shall require no more than 40% of its members to petition to force an item onto the House agenda for a vote.
16 The Supreme Court shall have the option to refer a law (or any part of a statute) back to Congress for mandatory reconsideration within three months, rather than simply affirming or rejecting that law (or relevant part of a statute).
These changes would reduce the time that House members are just campaigning and raising money (which can currently be up to 40% of their time), and would facilitate cross-party compromises on measures that a party leadership opposes. They would also end the egregious increasing backlog of empty positions while nominations are increasingly delayed, which forces Presidents to resort to interim appointments to dodge Congressional oversight. Agenda liberalization prevents a “majority of the majority” (which could be a mere 35% of the House, for example) from blocking legislation that would easily garner an absolute majority if it came to a vote. Here again, we might also consider the possibility of cumulative voting – this time by House members on certain topics, such as budget items – which would allow minority groups to register especially strong preferences on issues that are crucial for their constituents. Such systems increase the likelihood that minority groups get at least some (or at worst, a little bit) of what they want or need most. Short of adopting a parliamentary system, we urgently need to make it easier to pass laws through the federal Congress.
The extra option for the Supreme Court would reduce the popular sense that courts are “legislating,” enabling the Court to register objections without going as far as invaliding a law. In addition, arguably the Presidential veto has grown beyond all proportions ever envisioned at the founding, and constitutes another anti-majoritarian obstacle in many cases. So we could consider further reforms such as reducing to 3/5ths the threshold needed for the House and Senate together to override a President’s veto, while perhaps also giving the President a limited line-item veto (at least on budget bills) to help rein in our federal deficits. It would also be a good idea to alter the clause on impeachment of the President to include gross incompetence, dereliction of duty, and gross violation of the customary norms of this high office, rather than restricting causes to “high crimes.” Several of these ideas come from Sanford Levinson’s work (e.g. see Our Undemocratic Constitution).
There are also inequities caused by the life-terms of Supreme Court justices, not the least of which are gross inequalities between the number of justices that different President get to appoint. Fairness to voters requires that this not be left up to luck, or to worsening partisan trickery, such as the highly egregious (and precedent-setting) Republican refusal to consider a judicial appointment made by Barack Obama while he still had 11 months left in office. The solution is a term limit, perhaps to something like 18 years, with a fair rotation system that fits mathematically with the term length:
17. There shall be an 18-year term limit for federal Supreme Court (and perhaps Appellate Court judges), phased in so that two justices will retire within each 4-year presidential term (one in the President’s first year, and one in the third year). There shall also be a system to address the death or early retirement of any justice before the end of his or her 18-year term: their replacement takes the place of the President’s first or second appointment to the Supreme Court when it comes before either of these would normally be scheduled; and if the President has already successfully appointed two nominees to the Supreme Court in her/his four-year term, then the replacement of a justice who dies or retires early shall be held over until the first year of the next Presidential term.
This change would ensure fairness to those electing our Presidents: under this provision, each Presidential election has an equal weight on the Court, rather than this weight being determined by the contingencies of physical health and other accidental factors. The 18-year limit would also reduce the “dead hand of the past effect” arising from older judges overstaying their competence for political reasons. It would also end the perverse incentive to appoint very young justices who may not be ready for this level of responsibility just so they can sit on the court for many decades. A similar system could be adopted to ensure roughly comparable levels of Presidential influence on the federal Appeals Courts.
Finally, some of the deepest problems with American democracy are rooted at the level of our citizens themselves, who typically understand too little of the issues and the functions of the federal government to exercise democratic power responsibly. This mass ignorance makes people easily manipulable by scare tactics, by appeals to vices such as group hatreds, and by outright deception and misinformation (such as obviously false economic and statistical information) – especially in an era when cynical systematic attempts to demonize mainstream media drive people towards unreliable fringe sources. Fortunately, this is something that can be solved by better education. Just one semester of Civics required for all high school students would transform our nation, making it much harder to deceive people en mass, or to manipulate gullible voters by playing on prejudices. Such a course could explain the main issues at stake in current federal politics – something that presently happens only in an ad hoc way in US History courses, social science electives, or wherever high school teachers can squeeze it in. The point of the course should not be to review the three branches of government again, which is drummed into students many times from 5th grade on. Rather, its curriculum should focus on the following topics, which every responsible citizen needs to know, but very few do:
- the basic the history of our tax laws, including changes in top and bottom rates, types of taxes, average tax burdens, and resulting federal revenues, in the last 50 years;
- the basic history of our current federal deficits and debts, and sources of deficits;
- the basic history of our main entitlement programs, and future projections of their trust funds;
- the main items in our federal budgets and their percentages (e.g. direct foreign aid is less than 1%, interest on the debt has topped $400 billion per year, annual Pell Grants are under $30 billion, down from $39 billion because squeezed by the Sequester, etc.)
- a primer in basic economics, e.g. inflation, how recessions work, forms of stimulus and monetary policy, and their usual and most likely effects;
- the economic definition of public goods, externalities, and causes of market failures;
- a thumbnail history of our foreign policy from the mid-20th century on, including war spending figures;
- an introduction to informal logic and critical thinking, along with review of common fallacies.
Such a course does not favor the left or the right: it favors genuine, deliberative democracy by forming citizens who are not easily swayed by lobby-funded short TV and internet ads, or by fake stories placed by foreign tyrants. A student should leave this course knowing, for example, that Reagan’s tax cuts, like George W. Bush’s, produced enormous federal deficits; but they would also leave knowing about the projected increases in entitlement program spending and threats to the Social Security trust fund. They would know the difference between a million and a billion in the federal budget, learn what food stamps and Medicaid cost, what it’s like to live on food stamps, what our military budget looks like relative to other nations, and so on.
A movement to establish such a standard of civic understanding is really the only way that we can shore up the foundations of our democracy. Note that this course would be very different in content than AP Government, which is more thematic in coverage and only taken by a minority of students. This Civics requirement also does not need to increase the total number of high school requirements. Rather than requiring two full years of US History, as many states do, we can change that requirement to three semesters of US History to make room for one semester of Civics and Citizenship – which is another part of US history but with key topical focus points. This reform could be enacted by each state government one at a time, but a far better assurance would be a federal constitutional amendment saying that
18. Every high school student in the United States shall take at least one full semester of Civics, which shall include at least the basic history of tax law, along with objective information on our federal budgets, entitlement programs, and the fundamentals of economics necessary to assess proposed policies on these matters in a responsible manner.
Together, these eighteen amendments would transform the United States from a nation that is foundering under its internal conflicts, gridlock, and corruption into a nation where the government can once again serve the common good, advance prosperity for all, and uphold democratic ideals around the world. Adopting even half of these proposals would constitute the most profound constitutional renewal we have seen since the Civil War. Of course, there are other substantive amendments that could be included, such as constitutional guarantees for equal civil rights irrespective of race, gender, religion, or national background, to make permanent principles that are presently enshrined only in statutes and Supreme Court decisions. Other substantive amendments might tackle such divisive issues as gun rights and gun safety, and more public funding for medias freed from profit incentives. But I have focused here on the procedural changes necessary to make the United States a deliberative democracy in which all citizens have a fair part in electing an effective federal government that enacts the majority agenda – so that we may all learn from experience when the majority makes mistakes, which is an essential part of citizen development.
III. How to Pass the Amendments: A New Constitutional Convention
Critics will say it is impossible to pass these sorts of amendments, or (worse) that it is even dangerous to try. These are counsels of defeatism that, if followed, will ensure that nothing gets better. Some amendments, such as automatic runoff, should not be controversial at all. Others, such as direct election of the President, would certainly be opposed by some smaller population-states; but they may be persuaded by the advantages of making them competitive arenas again, because a direct popular vote avoids winner-take-all outcomes in each state. Small states will actually benefit from direct election of the President, because in close elections, as noted, votes in all 50 states will matter. Moreover, most of the procedural amendments proposed above do not directly favor either main party – indeed the automatic runoff provision favors small third parties, and the 18 year term limit on Court appointees is completely egalitarian. And on what grounds could anyone reasonably oppose giving every high school student a one-semester course on the history of our federal budget, tax law, deficit and debt, entitlement programs, and basic economics? Most conservatives would love this idea, hoping it would instill greater respect for fiscal prudence (and the course would be simply factual).
Nevertheless, the power of entrenched special interests might still make it very difficult to pass any of the proposed amendments through both chambers of Congress before sending them to states, as was done with all prior amendments to our Constitution. The poisonous atmosphere in Congress makes compromise impossible, and when amendments are considered one by one, a massive lobby against each of them will be more mobilized than the wide but more diffuse support for each amendment (just as we saw with the impossibility of getting even minimally sane gun safety laws passed in the wake of Sandy Hook and other large massacres). Consider the amendment for direct election of the President, which passed the House in 1969 by a huge margin of 338 – 70;7https://library.cqpress.com/cqalmanac/document.php?id=cqal69-1247065. Notably this amendment also included provisions for a runoff election if no candidate for the Presidency received at least 40% of the vote (allowing for a plurality President who received between 40 – 50% of the popular vote). Our separate amendment for automatic runoff elections neatly takes care of this issue. but small southern states filibustered the amendment to death in the Senate8https://library.cqpress.com/cqalmanac/document.php?id=cqal70-1291702 – which shows how the different flaws in our system can reinforce each other. The atmosphere in Congress now is far worse than it was in 1969, even after the divisive debates over the Civil Rights Act. In short, Congress cannot fix its own problems or those of the federal system in general. But fortunately, our founders included within the amendment provision in the Constitution a different procedure whereby the solutions can come directly from the people when two-thirds of the states call a new convention to consider amendments and send proposed amendments for ratification by three-quarters of the states. This process has never been used, but it’s time has finally come.
Critics see such an “Article V Convention” as a radical and dangerous gamble, but the problems we need to fix are themselves very dangerous, and the obstacles to fixing them through Congress are quite radical. Liberals like Lawrence Lessig and Sanford Levinson have called for such a new convention, and it has been popular with right-wing figures like Marco Rubio and Greg Abbott, which suggests that the idea would appeal to grass-roots populism. Perhaps for this very reason, other liberals during the last three years have often expressed fear that a convention called directly by the states would be a “runaway” process leading to extreme right-wing dogma being enacted.
These fears are entirely unfounded and, taken to their logical endpoint, express despair over the very possibility of democracy fixing itself (in that case, maybe we should give up on the Constitution entirely and establish an aristocracy of philosophers?). Even if a convention passed some crazy or highly ideological amendments – e.g. banning Islam, or outlawing abortion after the first trimester, or making guns mandatory for school teachers, or (more likely) demanding a balanced federal budget with no exceptions for deep recessions or other emergencies – three-quarters of states would certainly never ratify them. And if a bad amendment such as a strict balanced budget requirement did somehow get ratified, people would quickly learn their folly when economic chaos ensued (just as they learned when Prohibition was instituted a century ago): much better that the people should feel their effective democratic power and learn from mistakes, rather than feel simply controlled by elites and thus become cynical and ever-more disengaged.
But on the other side, the convention process holds out great hope. The call for a new convention would create a new era in U.S. politics, a ‘teachable moment’ like none other:
- it would inspire a deep national conversation that would radically improve citizens’ understanding of the difficulties we face, and perhaps even move people to talk across the political chasms now dividing us;
- it would provide a much more positive way for people to channel the deep anger that has understandably built up at our federal Congress, while also promoting civic virtues, and potentially renewing loyalty to the reformed federal government;
- it would probably bring some of the best political minds of our time together under a call to transcend party politics, and do an end-run around the big lobby groups with a lock on D.C.;
- convention delegates, with historical reputations at stake and the awesome sense of repeating the work of the 1787 Convention, would be under tremendous pressure to come up with innovative solutions and to produce substantive results that could be ratified;
- and most importantly of all, a convention offers the prospect for compromises that break basic logjams by combining into a single amendment provisions more favored by the left and provisions more favored by the right, or combining provisions favored by small states with others favored by large states, etc.
As the election of 2016 has clearly shown, we cannot continue to allow things to keep disintegrating. Our fear should not be that such an Article V convention would extend its mandate and take on a wide array of issues pertaining to the soundness of our federal government. Rather, we should fear the opposite, namely that some members of Congress might try to script the convention’s agenda in advance and thus hamstring the process, robbing it of most of its potential. For example, some conservatives would like to limit a convention to considering a balanced budget amendment, or to just a handful of other topics they care about.
On the contrary, in order to work and produce compromise, a new convention should have an open agenda, and just like the 1787 convention, feel free to ignore any limiting instructions that Congress may try to give in funding the convention and setting it up (a role apparently given to Congress by the Article V process). A convention exercises original sovereignty coming directly from the people via their states, which transcends the authority vested in Congress. Wise state leaders would call for all states to agree to send delegates who are not current members of the House or Senate, or current or recent lobbyists, or perhaps even current members of the state government sending them. Though some state officials might wish to appoint them, ideally states should hold a popular election for convention delegates – much as was done in 1776-77 when several of the 13 original colonies held conventions to set up new state governments. We should look for delegates with wisdom, life-experience, and genuine concern for the future who have as little monetary interest in the outcomes of the debates as possible. I suggest that each state send between 2 and 16 delegates based on their population size (mirroring the House to an extent), but vote as delegations, or state by state, within the convention: for an amendment that cannot gain the support of a majority of state delegations is unlikely to gain ratification by 3/4 of states. We should look for convention leaders who can get strong majorities of delegates to back proposed amendments. Obviously the closer they came to unanimity, the greater moral force their recommendations would have.
One interesting possibility might be to combine all eighteen of the amendments I have outlined here into one giant amendment with many clauses. Call it the Bill of Democracy, to parallel the original Bill of Rights. Its preamble could read as follows: “We the People of the United States of America, in Convention Assembled, in order to form a more democratic union, to establish deliberative ideals of civic virtue, and to restore the integrity and efficiency of our federal government, do here highly resolve that the following amendments to the Constitution be proposed to the several states for their consideration and ratification…”9For more thoughts on these amendments and other more substantive possible amendments, please see faculty.fordham.edu/davenport/convention.html. Then, and only then, may we say that we have fulfilled our sacred duties to our nation, and have fully honored the sacrifices of millions who died in order that we might have a democracy at all.
References [ + ]
|1.||↑||This predicament is partly due to our constitution being harder to amend than the basic law of any other advanced democratic nation on Earth, which suggests that among other things, we might consider amending the amendment clauses themselves – e.g. to require ratification only by two-thirds of the states and approval by three-fifths of both chambers when the amendment originates in Congress.|
|2.||↑||Note that when Obama had 60 senators supposedly on his side in 2009 before the untimely death of Edward Kennedy, having only just enough to break a filibuster meant that each single senator was crucial – and thus every one of them could, and some did, engage in brinksmanlike struggles over a key piece of legislation like Obama-Ccare, holding it hostage until they could extract unrelated goodies and pork-barrel benefits. To avoid this scenario, a President would probably need at least 62 or 63 senators, which seems unlikely to happen in any election soon.|
|3.||↑||It is certainly true that this would require computerized voting systems that are unhackable, or protected by multiple backups. But it is not hard to write laws that require a purely mechanical calculation of the number of votes cast at each polling station, for example, that can be checked against computerized totals; and other fail-safes can also be instituted. The bigger challenge is to make sure that foreign governments are deterred from interfering in our elections either by hacking or fake news, manipulation of candidates by blackmail, etc. That probably requires a very tough set of promised countermeasures to hacking that is aimed at election-manipulation (such as conventional military responses that are required by law when such hacking is confirmed).|
|4.||↑||While I do not try to define that rule here, there is a lot of promising recent work on this among mathematicians which suggests that it would not be hard to create a computer system to do most of the district line drawing.|
|5.||↑||Another intriguing option would be leave the Senate intact with two senators from each state, but diminish its legislative powers towards zero. This option is not technically banned by the letter of the Constitution, though it would certainly be against the spirit of the grand compromiseprobably be impossible to get ratified as a stand-alone amendment.|
|6.||↑||An amendment to this effect did pass Congress but was not ratified within the time limit that it allowed, which is another example suggesting that Congress or a convention should avoid placing time-limits on amendments when sending them to the states.|
|7.||↑||https://library.cqpress.com/cqalmanac/document.php?id=cqal69-1247065. Notably this amendment also included provisions for a runoff election if no candidate for the Presidency received at least 40% of the vote (allowing for a plurality President who received between 40 – 50% of the popular vote). Our separate amendment for automatic runoff elections neatly takes care of this issue.|
|9.||↑||For more thoughts on these amendments and other more substantive possible amendments, please see faculty.fordham.edu/davenport/convention.html.|