It has often been said that “The Constitution is not a suicide pact.” But the Constitution does include the seeds of its own destruction.
Thomas Jefferson believed that a country’s constitution should be rewritten every 19 years. Instead, the U.S. Constitution, which Jefferson did not help to write (he was in Paris serving as U.S. minister to France when the Constitutional Convention was held in Philadelphia), has prevailed since 1789.
“Jefferson thought the dead should not rule the living, thus constitutions should expire frequently, but the fact is that the U.S. Constitution quickly became enshrined by the public and is the oldest constitution in the world,” said Zachary Elkins, a professor of political science at Illinois. U. of I. scholars collecting, analyzing constitutions from around world:
Many other constitutions do not last very long, according to Elkins, who is working with Tom Ginsburg, an Illinois professor of law, on a project to collect and analyze some 760 constitutions used worldwide since the U.S. Constitution took effect.
“There is a lot of infant mortality,” Ginsburg said, noting that the average age for a national constitution is only 16 years.
Jefferson’s proposed time period was based on his era’s mortality rate. See Thomas Jefferson Letter to James Madison (September 6. 1789) (excerpt):
On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.—It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only.
Eric Posner explained several years ago, The U.S. Constitution Is Impossible to Amend (excerpt):
The problem starts with Article 5 of the Constitution. It provides that an amendment can be proposed either by a two-thirds majority in both the House and the Senate or by a convention, called into being by Congress, after a request from two-thirds of the states. That’s version A and version B of step one. If an amendment makes it through either one, then comes step two: ratification by three-quarters of the states. In other words, an amendment requires a supermajority twice—the pig must pass through two pythons. By contrast, ordinary legislation requires the approval of a simple majority in each house.
The founders made the amendment process difficult because they wanted to lock in the political deals that made ratification of the Constitution possible. Moreover, they recognized that, for a government to function well, the ground rules should be stable. But they also understood that the people will need to change those ground rules as new challenges and problems surface with the passage of time. They didn’t mean for the dead hand of the past to block necessary progress.
But the founders blundered. They made passing an amendment too hard. In the 220-plus years since ratification of the Constitution, more than 11,000 amendments have been proposed, but only 27 have been enacted.
[H]ow do we know that amendment is too hard rather than just hard enough? One reason is that the cumbersome national amendment process in the United States makes us an outlier. Most liberal democracies—including the nice, stable ones in Western Europe—amend their constitutions with great frequency. Germany amends its Basic Law almost once per year, and France a bit more than once every two years. Indeed, most states in the U.S. amend their constitutions every couple of years. Many have completely replaced their original founding documents. The procedures for amendment in states and most liberal democracies are much easier than they are for the U.S Constitution. For example, in Germany, an amendment requires a two-thirds majority in each House, and that’s it. In all these cases, no one complains about the lack of constitutional stability.
[It] was Justice Antonin Scalia who gave the broader and better answer — amend the process of amendment, to make it easier. According to the Legal Times, “[Scalia] once calculated what percentage of the population could prevent an amendment to the Constitution and found it was less than 2 percent. ‘It ought to be hard, but not that hard,’ Scalia said.”
[As] Justice Scalia said, all we need to do is change the rules in Article 5. The only problem is that this would require—an amendment.
The U.S. Costitution has been the foundation of our government for 233 years. But as Thomas Jefferson said, “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.”
The United State will celebrate its 250th anniversary in four years. What I propose is a federal commission of constitutional law experts to propose a revised and modernized U.S. Constitution, as other countries have done, to submit this revised Constitution to the states for ratification before 2026. Let us begin anew on our 250th anniversary with a fresh, modernized Constitution.
The first provisions of the Constitution which must be excised are all of the original provisions regarding the institution of slavery, which are mostly dead letter law now after the 13th, 14th, and 15th Amemdments.
But the last remaining vestige of the slavery provisions is the Electoral College, which is the source of our political troubles today. It was the basis for insurrectionist lawyer John Eastman’s coup memo for Donald Trump’s coup plot to steal the 2020 election, and is the basis for Republicans stealing the 2024 election.
No other country in the world has adopted the anti-democratic Electoral College. Every democracy in the world – and every election in the United States, except the presidency – is determined by the popular vote. The revised constitution must do away with the antiquated Electoral College and adopt the popular vote for the presidency, to conform to all other elections in the United States.
Another anti-democratic provision of the Constitution which is long overdue for reconsideration is the Connecticut Compromise, which provided each state would have two representatives in the Senate (without regard to population). In practice, this has led to less populated states being able to put together a coalition of votes to obstruct the Senate and to render the institution completely dysfunctional as a governing body. It is an anti-majoritarian tyrrany of the minority thwarting public policy that the vast majority of Americans demand.
The only viable solution is to apportion the Senate in a manner similar to the House. It makes no sense that a state with more cows than people, like Wyoming, has the same number of senators as the state of California, with a population of almost 40 million people. Cows don’t vote, people do. Representative democracy demands that equal numbers of persons elect their representatives from districts to the House and Senate.
Note: the Constitutional provision prescribing the population formula for determing the number of House seats, Article I, Section II (“The number of Representatives also cannot be greater than one for every thirty thousand people”) has long since been replaced by statutory law in a work around for an unworkable Constitutional provision. (330 million citizens divided by districts capped at 30,000 citizens = 11,000 House seats). The number of House and Senate seats can be set by statutory law. The Senate has 100 seats only because of the constitutional formula. The size of the Senate can be reset by statute.
A new provision which must be added is one declaring that a citizen’s right to vote is a fundamental right which cannot be infringed by the government. That is nowhere stated in the current Constitution, which treats the “right” to vote as a “privilege” of citizenship. The vote is fundamental to a democracy.
Justice Scalia’s suggestion to revise Article V to make amending the Constitution easier is also a good moderization. A provision for revision every 20 years or so, as Thomas Jefferson suggested, could also be included. Then it really would be a “living constitution,” and all that “orginalism” about what the long-dead Founding Fathers intended would no longer be a worthy legal doctrine.
Then it gets more complicated. Do we finally acknowledge women in the Constitution and declare that women have equal status under the Constitution as men? (yes) Do we really need the Second Amendment – which was about a well regulated militia – when we have a professional military, national guard, and multiple levels of federal, state and local police departments, something which did not exist at the time the Second Amendment was ratified? (no).
There are many more long-debated issues which could prove problematic to ratification if included in a revised and modernized constitution. The impetus to do nothing and maintain the status quo is strong.
The current Constitution contains the seeds of its own destruction. Doing nothing to revise and modernize the Constitution, maintaining the status quo, will eventually lead to the demise of our constitutional form of government and democracy.
It’s time for a revised, modernized Constitution for our future.
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Jamelle Bouie of the New York Times writes, “It’s Not Looking Too Good for Government of the People, by the People and for the People”, https://www.nytimes.com/2022/05/27/opinion/uvalde-senate-gun-control.html
The antislavery politicians of the 1840s and 1850s did not speak with a single voice.
What tied the antislavery factions of American politics to one another wasn’t a single view of slavery or Black Americans but a shared view of the crisis facing the American republic. That crisis, they said in unison, was the “slave power.”
The “slave power” thesis was the belief that a slaveholding oligarchy ran the United States for its own benefit. It had ruled the nation for decades, went the argument, and now intended to expand slavery across the continent and even further into the North.
The “slave power” thesis was also a claim about the structure of American government itself. As these antislavery politicians saw it, “the real underpinnings of southern power were regional unity, parity in the Senate, and the three-fifths clause of the Constitution,” the historian Leonard L. Richards writes in “The Slave Power: The Free North and Southern Domination, 1780 to 1860.” Together, this gave the slaveholding oligarchs of the South a virtual lock on much of the federal government, including the Supreme Court. “Between Washington’s election and Lincoln’s,” Richards points out, “nineteen of the thirty-four Supreme Court appointees were slaveholders.”
For antislavery politicians, the counter-majoritarian institutions of the American system enabled a faction that threatened democracy. The question of the “slave power,” then, was ultimately one of self-government.
The “slaveholding interest” is “resolved upon the dethronement of the principles of republicanism and the establishment in their stead of an oligarchy, bound together by a common interest in the ownership of slaves,” declared the men who gathered in Pittsburgh on Feb. 22, 1856, for one of the first national meetings of the Republican Party. “The time draws nigh, fellow-countrymen, when you will be called on to decide upon the policy and principles of the General Government.” Your votes, they continued, “will determine whether Slavery shall continue to be the paramount and controlling interest in the Federal Administration, or whether other rights and other interests shall resume the degree of consideration to which they are entitled.”
You’ve probably guessed by now that this is not an idle history lesson. I am thinking about “the slave power” because I am thinking about the ways that narrow, destructive factions can capture the counter-majoritarian institutions of the American system for their own ends. I am thinking of how they can then use the levers of government to impose their vision of society and civil life against the will of the majority.
[T]he filibuster, however, is only one part of the larger problem of the capture of America’s political institutions by an unrepresentative minority whose outright refusal to compromise is pushing the entire system to a breaking point.
[T]he American political system was not designed to directly represent national majorities. To the extent that it does, it’s via the House of Representatives. The Senate, of course, represents the states. And in the Senate (much to the chagrin of many of the framers), population doesn’t matter — each state gets equal say. Fifty-one lawmakers representing a minority of voters can block 49 lawmakers representing a majority of them (and that’s before, again, we get to the filibuster).
Add the polarization of voters by geography — a rural and exurban Republican Party against an urban and suburban Democratic Party — and the picture goes from bad to perverse. Not only can Republicans, who tend to represent the most sparsely populated states, win a majority of the Senate with far less than a majority of votes nationally, but by using the filibuster, a small number of Republican senators representing an even smaller faction of voters can kill legislation supported by most voters and most members of Congress.
The Senate might have been counter-majoritarian by design, but there is a difference between a system that tempers majorities and one that stymies them from any action at all. We have the latter, and like Congress under the failed Articles of Confederation, it makes a mockery of what James Madison called the “republican principle,” which is supposed to enable a majority of the people to defeat the “sinister views” of a minority faction by “regular vote.”
Rather than suppress the “mischiefs of faction,” our system empowers them. Few Americans want the most permissive gun laws on offer. But those who do have captured the Republican Party and used its institutional advantages to both stop gun control and elevate an expansive and idiosyncratic view of gun rights to the level of constitutional law.
The result is a country so saturated in guns that there’s no real hope of going back to the status quo ante. If anything, American gun laws are poised to get even more permissive. If the Supreme Court rules as expected in New York State Rifle & Pistol Association v. Bruen, it will strike down a law that requires a license for carrying a concealed firearm.
Whether or not the public wants a world of ubiquitous firearms, the conservative majority on the court — which Americans have never voted for and which would not exist without the counter-majoritarian institutions that gave Donald Trump the White House and the Republican Party a Senate majority — seems ready to impose one.
Over the years, historians have been divided on the “slave power” thesis. Some have dismissed it, pointing to the lurid conspiracism of its most fringe proponents. Others have held it at arms length, treating it as an instance of the paranoid style in American politics. And still others have tried to steer a middle course of affirming the big picture while challenging the details.
The slaveholding South may not have been as politically unified as charged, but the institutions of American democracy were slanted toward slaveholders, who really did capture the state for their own ends. As much as possible, they used the power of the federal government to further their interests and stymie opposition, with the help of a like-minded majority on the Supreme Court that did not hesitate to act on their behalf.
What must be understood is that the institutions that enabled this subversion of self-government are still with us, a practically indissoluble part of our constitutional order. To say that it is possible for a narrow faction of ideologues to weaponize the counter-majoritarian features of our system against the “republican principle” is, basically, to describe the current state of our democracy. It is, in other words, to state the crisis.
I’m not disagreeing with your points, but I believe that the major weakness of our Constitution, of any Constitution is its presumption that the people elected under it, that the people administering it, will be decent human beings.
As we can see from Cheeto, Mitchell McConnell, and their ilk, that’s not the case at all.
They see decency as a character flaw to be exploited.