It has become increasingly clear that the U.S. Constitution is in dire need of amendment. The purpose of having a government in the first place is to give the country a means to deal with pressing national problems, yet the seemingly permanent deadlock that has gripped our institutions for the past two decades makes it impossible to carry out this essential function. It is time for a change in how we govern ourselves, or rather in how we are currently failing to govern ourselves.
Americans cherish the Constitution, and rightly so, but it is important to note that it is the Constitution as amended that we revere. No one wants to go back to the original document alone. It was amendments to that first version that ended slavery, defined citizenship, mandated equal protection of the laws for everyone, provided for the direct election of senators, granted women and 18-year-olds the right to vote, and made any number of other changes that have given us the free country we take for granted today.
In the wee hours of the morning, I ponder a variety of constitutional catastrophes that we have set ourselves up for. For instance, a third-party candidacy throws the choice of president into the House of Representatives, where a partisan majority chooses the candidate who lost the popular vote — perfectly constitutional, but a travesty of democracy. Possibly a candidate sues over the vote count in a decisive state, and the Supreme Court votes 4-4 along strictly party lines, and we still don’t know who the next president will be and have no clear way to resolve the question.
We can easily imagine the Senate and the White House held by opposite parties, and the Senate refuses on principle to confirm any Supreme Court nomination indefinitely, or perhaps carries the battle further and refuses to confirm any cabinet secretary or other senior appointed official. Moreover, the House becomes so rent by bitter partisanship that it is not able to conduct any business at all and grinds to a halt. Possibly an increasingly dismayed president, rather than watch the country slip helplessly into paralysis, resorts to broad executive orders of increasingly dubious legality, and ignores an evenly split Supreme Court.
I suspect readers on both right and left can easily add their own particular nightmares to the list. Moreover, all of the above assumes a certain amount of domestic and global tranquillity; the danger increases exponentially should we face an international crisis or an economic emergency at the same time the machinery of government is jammed.
Any government needs both legitimacy and efficiency in order to do its job. In the Anglo-American tradition, legitimacy has been provided by the legislature, efficiency by the executive. If the acts of the government lack legitimacy through legislative approval, the government becomes a tyranny. If the duly constituted executive authority shows that it is unable to carry out its functions efficiently, support for the whole government is undermined and the society slips toward anarchy.
The chief problem we face today is that the balance of power between the president and Congress is frozen at an 18th-century stage of development. At that time the great struggle for liberty had been for Parliament to gain power over the Crown; consequently, the founders were intent on strengthening legislative power and constraining that of the executive. The question we face today is whether such a balance still serves the national interest, and our failure to resolve virtually any serious national problem in recent years suggests that in fact it does not.
To strengthen the president’s constitutional position, therefore, the following amendments should be adopted:
• Provide for the direct election of the president by popular vote, eliminating the Electoral College.
• Permit the president to introduce legislative proposals directly onto the floor of both House and Senate, to end the willful obstructionism that has paralyzed those bodies. Amendments would be permitted only with the president’s concurrence, and the proposal would need to be voted up or down by simple majority. If not voted on within 60 days, the president’s proposal would been deemed approved and become law.
• Appoint Supreme Court justices for staggered 18-year terms, with a vacancy normally coming up every two years, to ensure any president the right to appoint at least two justices as a more or less routine matter of business.
• Require Congress to act on all executive nominations within 60 days, including those to the Supreme Court, by simple majority vote. If not rejected during that period, the appointment would be considered automatically confirmed.
We also need to strengthen the electoral process in general, and clear up some of the major disputes that have clogged the system in recent years. Such measures would include:
• Provide public funding for all electoral campaigns for national office, with strict limits on private contributions from individuals and organizations, to lessen the impact of money on politics.
• Require compact and contiguous electoral districts for all House seats, enforceable by the courts, to restrict the effects of gerrymandering.
• Provide for federal supervision of all national and state elections where necessary to ensure that voting rights are not compromised by inadequate facilities, long lines or restrictive registration requirements. The test of any proposed restriction should be its likely effect; intent need not be proved.
• Pass an Equal Rights Amendment that would ban discrimination on the basis of gender or sexual orientation to ensure the equality of all persons.
• Clarify that Congress may pass legislation to control the sale or possession of assault weapons and similarly regulate other forms of firearms, treating the Second Amendment in much the same way we changed the 18th Amendment on Prohibition by adopting the 21st when we found its original purpose was miscarrying.
This sounds like a heavy order of needed reforms, as indeed it is. But such revisions have tended to come in clusters in our history; the original 10 amendments that constitute the Bill of Rights in 1791; the 13th, 14th and 15th Amendments following the Civil War, and the 16th through 19th in the decade of the 1910s.
There are many other issues that need to be dealt with but that do not need to be handled on the constitutional level, such as health care, immigration and education. Once we have regained a functioning government, these and similar questions can be handled through normal political processes.
Generational theory proposes that every fourth generation, or roughly every 80 years, we find it necessary to reconfigure our government, such as when we chose independence in 1776, when we preserved the Union and abolished slavery in the 1860s, and when we entrusted government with broad responsibility for economic and social welfare under FDR in the 1930s. We are now 80 years past that last major readjustment, and a new generation, the millennials, is at hand and rising to political power. Prodding the rest of us to take up this long list of currently needed reforms is the historical task that awaits them.
This July 4th we will mark the 240th anniversary of the signing of the Declaration of Independence. Let us hope that by the 250th anniversary we will have a working government again, and without having to go through one of the nightmare scenarios that can be imagined. It may be useful to recall Benjamin Franklin’s reply to the lady who accosted him as he came out of a session of the Constitutional Convention. She asked, “Dr. Franklin, do we have a monarchy or a republic?” To which he replied, “A republic, Madam, if you can keep it.”
John Lawyer is professor of political science emeritus at Bethel University.