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The U.S. Constitution: time for a rewrite?

Fundamental aspects of our government and the Constitution need re-thinking, starting with the two-chamber structure of the U.S. Congress.

The Constitution: holy writ?

The Constitution: holy writ?

U.S. Capitol Building

U.S. Capitol Building

Something is wrong in the other Washington. The president can initiate a war without a declaration, or even, it now seems, without approval under the War Powers Act. Irrelevant legislation that can't stand on its own legs becomes law because it is tacked on to defense spending bills that congressional representatives dare not vote against, and the president has no line-item veto. The entire legislative process grinds to a near halt because one party controls the White House and (sort of) the Senate, while another party controls the House. Bill after bill confronts the threat of two-fifths of the Senate preventing the measure from even getting a vote.

Individual senators block votes on nomination after nomination.  Commentators measure the two major parties' political power in terms of their relative wealth, their “war chests.”  There are no other major parties because congressional seats are awarded on a winner-take-all basis, rather than by proportional representation.  We are one party away from being a one-party state. Et cetera.

How about a new constitution? Would that resolve any of this dysfunction?

We treat our constitution as holy writ, almost as another Bible. Yet the Founding Fathers would be the first, I believe, to remind us they were only mere mortals creating a less-than-perfect document. They wrote the constitution, moreover, for an age very different from the one in which we live — a world in which “the United States” still took a plural verb and modern political systems were very much inchoate compared to today. The founders perpetuated slavery, defined a black person as three-fifths of a white person, kept the vote away from women and made no provision for political parties, whose “baneful effects” the Constitutional Convention's president, George Washington, would go on to warn of “in the most solemn manner.”

Democracy has three elements: freedom of personal action, freedom from want – commonly called social democracy – and effective representative government. We get very high grades on the first element. On the second two, and particularly the last one, we get poor to mediocre grades, and the trend seems downward. A second constitutional convention could at the least rectify the decay in government by correcting constitutional deficiencies that James Madison and his colleagues, I think, would freely admit to, were they alive today.

In 1994, Newt Gingrich's “Contract with America” sought to legislate a presidential right to a line-item veto, to name one of the most conspicuous of those deficiencies. It was one of the few components of the Contract that survived the legislative process and received President Bill Clinton's signature. West Virginia Sen. Robert Byrd led the opposition to the measure, asserting that it violated the constitution.

The matter ultimately went into the courts, and Byrd's viewpoint prevailed. The issue then faded from view — remarkably enough, since some states have long had line-item-veto provisions in their constitutions, and amending the federal constitution to include such a provision seems a political slam-dunk.

I do not understand our reticence about changing the constitution. State constitutions seem much more responsive, organic documents. Some are amended routinely through initiative processes. And, more to the point, there are many well-established political concepts that would serve our nation well if incorporated into the constitution.

The bicameralism (two legislative chambers) of the U.S. system, for example, seems less an expression of federalism (the unity of constituent states that retain significant sovereignty) than a holdover from the days when a legislature's lower house was seen as needing the coolness and wisdom, to use Madison's words, of a more august upper house that bent less to public sentiment. Today the obdurate political confrontation that the Senate's proceedings have become seems to have betrayed Madison's hope, and the net benefit of bicameralism seems to have vanished. Moreover, many of the world's most successful democracies have unicameral legislatures (as does Nebraska). The process of legislating unicamerally is vastly simpler than in Washington, D.C., where two houses, sometimes with different political parties controlling them, must both pass identical bills before they can reach the president.


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Comments:

Posted Mon, Jul 4, 7:32 a.m. Inappropriate

A streamlined government, in which every whim of the majority party becomes law, would be the death of freedom in this country. Did the single-party-rule days of the Bush and Obama administrations teach the author nothing? I much prefer the slow, plodding, inefficient, constrained government of our founders. They understood that "nobility of purpose" was a scare commodity in politics, and that there was little chance that it would rise spontaneously. Mankind is not perfectable.

dbreneman

Posted Mon, Jul 4, 7:44 a.m. Inappropriate

"I do not fully understand our reticence about changing the Constitution."

If it ain't broke, don't fix it.

Djinn

Posted Mon, Jul 4, 8:18 a.m. Inappropriate

Someone once said, "Democracy is the most inefficient form of government there is - except for all the others."

thetruth

Posted Mon, Jul 4, 8:57 a.m. Inappropriate

"If it ain't broke?" Are you serious?

Kudos to the writer for having the guts to examine the root problem with America today. Throw in a tossing out of the elitist electoral college and add campaign finance reform and new restrictions on lobbyist, and perhaps America could claim something closer to a true representative democracy.

There's a reason no other emerging democracy has adopted our way of governance.

Comments here so far make the author's point: The biggest impediment to progress is the mistaken belief that our system is perfect, or even that it's appropriate for modern society. Most people seem to read right over the "alter or abolish it" provision so prominently provided by the founding fathers, who never intended their framework to be sacrosanct.

One person above calls for, apparently, perpetual gridlock. (How's that working out for us so far?) Another leaps to the conclusion that the author is advocating doing away with democracy. I think the suggestion made is that it's time for bold action to make the union more perfect.

Alas, I agree with the sad conclusion that it's impossible for America to even have an adult conversation about the subject without picking up swords and grouping into screaming tribes.

Happy Independence Day.

rjudd

Posted Mon, Jul 4, 10:35 a.m. Inappropriate

There is something for a slow legislative process, or gridlock as it is often described. It also means stability. Consider, for instance, the radical shifts in economic policy that occurred in Britain in the 1960s and 1970s. A Labour government would nationalize (or nationalise, if you prefer) an industry, a subsequent Conservative government would privatize it, the next Labour government would nationalize it again, and so on. This rapid change of policy is very disruptive. Under a parliamentary system, we would now have a Republican prime minister, and the GOP would have instituted the entirety of its social and economic agenda.

The other thing I caution people about is that changes have consequences, with the unintended consequences often being more important than the intended ones. The Pendleton Civil Service Reform Act of 1883 comes to mind, which created competitive exams for the civil service and required that hiring/firing decisions be made on the basis of merit instead of politics. Now, the Pendleton Act was, on balance, good policy because the corruption in civil service was extreme. But by lessening a candidate's dependence on job-seeking volunteers, the Pendelton Act opened the way to increased business spending. The period of greatest change in how the United States is governed, aside from the ratification of the Constitution, was the reforms of the progressive era. These reforms created direct election of US Senators, and on the state level, created recalls, initiatives, and elected judiciaries. It's not at all clear that the state changes were beneficial or that they accomplished their goal of making state governments more responsive to the needs of ordinary citizens.

Now, I also don't subscribe to the view that the Constitution is perfect. The Second Amendment should be clarified by another amendment, the "direct taxation" clause, which was inserted to protected slaveholders from a head tax, should be clarified (or better yet, removed), and the Eleventh Amendment should be repealed. None of these changes are extraordinarily drastic, though.

Finally, in response to the concerns about money in politics, I have two suggestions that do not require changes to the Constitution or even legislation. First, eliminate the primary system. The Democratic Party revised its nominating system to depend largely on the primary after the debacle of the 1968 Chicago Convention, and Republicans followed suit. The primary system, which has the illusion of being democratic but is really little more than a lottery, creates no incentive for candidates to respect the varying factions within their parties and favors celebrity over statesmanship. It also raises the cost of presidential elections by requiring, in effect, a candidate to win two national elections. The sad record of the primary system is the weak Jimmy Carter administration, Bill Clinton's slippery integrity, the takeover of the GOP by religious fundamentalists, the disastrous George W. Bush administration, and the unprincipled Obama administration. The second change is to eliminate party dues for members of Congress, a change that could be made by mutual agreement between the two major parties. This would lighten the fundraising ball and chain that saps the energy and independence of our federal representatives.

Posted Mon, Jul 4, 11:02 a.m. Inappropriate

The Founding Fathers would certainly be dismayed at the state of American politics. It is well-known that they despised party politics. Thomas Jefferson stated “If I could not go to heaven but with a party, I would not go there at all.” Our fifth President James Monroe attempted to run his administration with out regard to party but found that divisions made it unworkable.

It is the dominance of party politics that now permits becoming a full-time politician to be a career. Such politicians bring no external experiences to the dialogue and are beholden to the party for their continued employment. The 3rd Districts' Jaime Herrera Beutler is a good example having moved in her career from intern to legislative aid to Catherine McMorris Rodgers to appointed Washington State representative to US Congressional Representative.

The Fathers likely would also be critical of how corporations have obtained undue influence in American politics. They questioned the legitimacy of Sovereign granted charters and rights of privilege; Madison questioned whether religious institutions should be able to hold property in perpetuity which is similar to powers granted to existing corporations. As the Center for Corporate Policy states:

"The U.S. Constitution, the Bill of Rights and subsequent Amendments do not explicitly mention corporations. Nevertheless, under U.S. law corporations have obtained substantial rights through key court decisions that have established particular legal doctrines and provided corporations some of the same rights as human beings.

Although we believe there are legitimate reasons and instances where corporations and other institutions should be protected from government intrusion, it is also the case that corporations have used their claims to constitutional rights to expand their power, restrict the rights of individual people (esp. employees), trample the public interest (e.g. overturn regulations protective of public health) and undermine democratic decision-making processes, especially at the local level."

The Founders would likely question whether the Senate in its current form was a viable body where the state of Delaware with a population of 885,000 has the same federal powers as the state of California with a population of 37 million. The Senate as a body was intended to protect states' rights when the role of the federal government was subservient to the states. Over time, judicial interpretation of the commerce clause has permitted the Senate to obtain additional powers over the economy and as such voters in small states have disproportionate representation on issues of national importance. With so much power granted to the smaller states, is it any surprise that every contested Senate seat now becomes a national battle with both Democratic and Republican National Committees and outside PACs funneling millions into attack ads and educational messages.

The Founders being men of Enlightment would likely be dismayed that we have not continued in our intellectual pursuit of the truth and revised the Constitution accordingly. The Constitution is a document grounded in the philosophy of the 18th century. The Constitution, Declaration of Independence, and Bill of Rights are based upon philosophy which reflected society's collective knowledge at the time of its writing. To state that we are obligated to follow the Founders' intent is to ignore the advances in the sciences and all philosophical thought that has occurred since the late 1700s. The manner in which we without question accept these document is as though the philosophers Hegel, Nietzsche, Marx, and Gandhi, and men of science such as Darwin and E. O. Wilson did not write a single word.

Posted Mon, Jul 4, 11:24 a.m. Inappropriate

Jefferson allegedly said the Constitution should be rewritten every 19 years. That comment may reflect the fact that he was in France during the summer of 1787, and didn't experience or contribute much to the root canal operation that finally replaced the Articles of Confederation and laid the groundwork for the UNITED states. Jefferson did experience the ensuing, cliff-hanging process of ratification, however, so his "rewrite" suggestion can rightly be stamped disingenuous.

At 220+ years, our Constitution is desperately in need of an overhaul, but in today's hyper-factionated environment (see Federalist 10), there's no way--NO WAY--that a proper revision could be accomplished in "conventional" fashion. We are paralyzed. For good (much of that already realized) or ill (substantial, and certain to grow as America slips down the slope of imperial decline and corporate & individual exploitation), we're stuck with the timid and insubstantial process of amendment as the only avenue for altering our founding principles.

The feeble instrument of amendment can in no way support prompt and vigorous modernization of a document that reflects power structures (economic, gender, environmental, and so forth), primitive technology, and political philosophy of the 17th and 18th century. Consider the fate of the Equal Rights Amendment, the most recent substantive attempt to buttress our strength of purpose in the arena of equality.

The United States is stalled and enchained with respect to its philosophic, legal, and democratic underpinnings--and with accelerating speed, those structures enable those at the nodes of power to manipulate financial, legal, and communications structures to their sure advantage.

We rabble--brainwashed, uninformed, and content with the bread, circuses, and marvels of the technologic age, continue to act out the Stockholm Syndrome with zeal (note our instant, knee-jerk howls when someone suggests that the foundations of our social contract occasionally be subjected to "seismic stress analysis" and revision).

All the brain power in this nation cannot begin to counteract the profoundly entrenched structures of power and the individual and corporate beneficiaries that so effectively wield them. No exercise of the imagination could possibly replicate the much simpler environment in which James Madison and a small coterie of like-minded men (privileged, propertied, white and male though they were) could coax a fearful, selfish gaggle of colonies toward a common future.

We're stuck with our 18th-century contract, the processes that have developed from it, and the continued manipulation of those processes by those best positioned to do so. There is no process by which we can reinvent ourselves to (for example) devise more effective methods of citizen representation and participation in public life; eliminate the crippling and corrosive influence of wealth; articulate a long-term national foreign policy and commitment to a permanent reduction in state-sponsored violence and destruction and the exploitation of thinning resources and fragile individual dignity.

This is a prophecy offered by no prophet, but by a student of human nature, human institutions, and of the tendency for deeply-engrained privilege to assure its own future at any cost.

Assessing the likelihood that the common man would be served by Irish independence, William Butler Yeats was prophetic in his own time:

Parnell came down the road
He said to a cheering man
Ireland shall have her freedom
And you shall break stone.

Seneca

Posted Mon, Jul 4, 1:22 p.m. Inappropriate

The following comment arrived, addressed to the editor. It comes from the national director of the Madison Amendment Coalition:

Your article today on the U.S. Constitution was very interesting.

Since people fear that a constitutional convention might have unanticipated consequences, what about clarifying the power of 2/3 of the states to propose a specific amendment, eliminating the risk of a runaway convention by allowing 2/3 of the states, if they wish, to limit the scope of a convention they call for to an up or down vote on just one Amendment they identically propose.

Here is the text as proposed in House Joint Resolution 95 in the 111th Congress, introduced with bipartisan support and with bipartisan support from a group of state legislators around the nation.

Since it would enhance the influence of state legislators of both parties, it is possible that those in 34 states might be persuaded to propose it.

‘‘ARTICLE ___. The Congress, on Application of the Legislatures of two thirds of the several States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V."

--Roman Buhler

Posted Mon, Jul 4, 1:44 p.m. Inappropriate

Very appropriate food for I Day, my thanks to one and all!

afreeman

Posted Mon, Jul 4, 1:47 p.m. Inappropriate

Pythagoras: Eloquently put.
Seneca: I hope you're wrong. I fear you're right.

rjudd

Posted Mon, Jul 4, 2:24 p.m. Inappropriate

rjudd: Eloquently put.
Pythagoras: I wish you were wrong. I know you're right.

Seneca

Posted Mon, Jul 4, 3:22 p.m. Inappropriate

Congrats to the author for this thought-provoking article. He or she states that freedom from want is one of the three foundational elements of our democracy. From atop my soapbox, I respectfully disagree.

A properly functioning national government needs to take care of our international interests and maintain a legal and political environment that gives hard-working people an opportunity to take care of themselves and their families. It also has a legitimate role in making sure that Americans have access to the tools necessary to take care of themselves. And that a safety net is available to the few people in society who cannot fend for themselves. But it can't - and shouldn't - guarantee that everyone in society will have everything that some well-meaning person believes will free humans from the challenges brought by life or nature.

When "freedom from want" becomes an entitlement for healthy adults, democracy merely becomes the means to transfer resources from achievers to societal parasites. What makes me say that? Human nature. And personal experience. The only two people I know who have been recipients of the Disability Lifeline Program are healthy men in their thirties who have been jailed for petty crimes numerous times, use and have sold drugs, and choose to work under the table for cash - when they chose to work at all. I'm sure there are many worthy people who need that program but these two don't. But, on paper, they qualify. Our compassion has given these two fellows an opportunity to live free from want without having to submit to an alarm clock but you'd be hard pressed to convince me that it has helped create a healthier democracy.

The "freedom from want" or entitlement philosophy espoused by the author sounds compassionate but it kills personal initiative and weakens our ability to cope with natural and man-made disasters. And it will weaken the ability of Americans to maintain a vibrant economy in a world in which dynamic economies produce more than they consume.

Democracies don't - and can't - guarantee freedom from want. And frankly, I'm not sure why we're asking a political system to do something that is both impossible and genetically undesirable.

Posted Mon, Jul 4, 4:10 p.m. Inappropriate

I think most Americans would welcome a more nimble, accountable, and transparent national government. At least two features of the British version of parliamentary government, both of them absent from our system, champion such citizens' interests: the weekly appearance (in the House of Commons) by the chief executive (Prime MInister) to answer questions publicly from elected legislators, and a time limit on campaigning for national public office to about 6 weeks, total.

I would welcome both innovations, even within the current system, however I hold out no hope that either is within our grasp, no matter how reasonable the arguments mounted on their behalf. Sadly, the first would be shot down on separation of powers arguments; the second on First Amendment grounds.

Which leads me to wonder whether our current governing documents provide the kind of meaningful protection of values like a responsive, accountable, transparent government as is enjoyed by others in the English-speaking world (England, Canada, and Australia, to name a few) utilizing a parliamentary system.

I don't know the answer to this question. But, recent Supreme Court decisions, like Citizens United, suggest that our system, as presently practiced, encourages the concentration of political power. And that, I believe, the Founding Fathers would find odious in principle and practice.

LisaKane

Posted Mon, Jul 4, 7:05 p.m. Inappropriate

All this talk of process regarding a major overhaul of the Constitution is, quite frankly, moot. What happened in Tunisia, what happened in Egypt, will happen in the United States. Not tomorrow, not next week. But it will. The plutocrats and oligarchs who so eagerly run roughshod over the rest of us will, like all other oppressors, blithely forget that at some point, oppressed peoples will wake up and realize they have nothing to lose by rising up against their oppressors...

orino

Posted Mon, Jul 4, 7:18 p.m. Inappropriate

This is a very interesting piece.

In many ways, however, I don't think we need broad Constitutional reform as much as we need Senate reform. Some ideas:

- It's absurd that Wyoming and Texas have the same number of senators on a variety of levels; the Founding Fathers themselves would not have abided such inequality in the Senate had the ratios of states' sizes in 1787 been similar to Wyoming:California today. An equitable reform would be for each state to elect a number of senators equal to that state's number of House seats divided by 9, but no fewer than 2. So Florida and New York should elect 3 senators, Texas should elect 4 senators, and California 5, and all the rest 2.

- Tyrany of the minority: The Senate needs a provision making it harder, though not impossible, for bills to pass when a majority of votes represents a minority of the population of the entire nation.

- Washington, DC, should elect 1 full voting member in the House, and 1 full voting senator in the Senate, and be otherwise treated as though it were a state for voting and electoral purposes.

- The Senate has to do away with holds and filibusters (or at least allow filibusters only when a senator is physically present).

- Presidential nominees to executive departments and to the courts should actually *take office* pending Senate confirmation. If the Senate does not vote on an appointment within 90 days, then the appointment is permanent.

- After approving a cabinet-level secretary, appointments made by that secretary to lower positions within the department should generally not be subject to Senate confirmation.

smacgry

Posted Tue, Jul 5, 8:40 a.m. Inappropriate

Washington State should consider moving to a unicameral (one house) legislature (see Nebraska). At the VERY LEAST it would reduce the number of ears to which special-interest groups can whisper.

BlueLight

Posted Tue, Jul 5, 2:03 p.m. Inappropriate

I would have no problem with a unicameral state legislature, at the Federal level not so much.

If I were to modify the constitution, I'd finish adding the Equal Rights Amendment. (perhaps modifying the working to include Gays & Lesbians.)

Add an amendment specifying that corporations are NOT citizens.

Add an amendment to the right of privacy. What goes on in the house between consenting adults is not the governments business.

I agree with Smacgry's suggestion on the appointment problem, "take office" at appointment time, and 90 days to reject, otherwise they keep the job.

If I were adjusting the number of senators, Rhode Island, Wyoming et.al. would get 1, not two, if California gets 5.

I'd add a clear statement that the airwaves. (the whole light/radio spectrum) is owned by the citizens, and leased to the media companies. Thus opening the door to requiring time for political ads for free to the candidates as a condition of the lease.

GaryP

Posted Thu, Jul 7, 11:26 a.m. Inappropriate

rjudd,

It ain't broken. Just because you or I don't get our way in the elections doesn't mean the system is broken. It means one of us lost. The consistent theme about losing is the tendency to blame the system. American style democracy does suck when your side loses and many times the losers think that changing the system is the solution to their losing elections. I would submit that the message is the problem not the system.

We chug along with our imperfect system and tinker with it all the time. We have a system for change, it's not a speedy one but it's there and pretty much in constant use. How do we know it's in constant use? When was the last time the federal courts system was inactive from a lack of cases? Not in our lifetimes. Win or lose our history, with the exception of the 1860 election, has been the peaceful transfer of power from one administration to another. Not many countries can make that claim.

For those who espouse representative democracies as practiced in other countries, re-think your position. Do you really want to have a political parties that would break down on ideologies not seen by the rest of the world? The Gun Party, Anti-Abortion Party, The Capitalists, The Progressives, The Abortion Party, The Black Party, The Latino Party, The Asian-American Party, and all the rest of the splinter groups vying for a seat at the table. That's what I have seen in my travels aboard. Some countries are using the path of representative democracy to one party strongman rule. Think South America.

Djinn

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