If you were writing a Constitution for the United States from scratch today, how many provisions from our national charter would you keep?
Would you assign each state equal voting rights in the U.S. Senate, ensuring that less-populated states like Wyoming and Vermont, with populations under 1 million, get as many senators as large states like California, with a population approaching 40 million, or Texas, with almost 30 million residents? Would you include an electoral college that allows presidents to win the national election while losing the popular vote? Would you sign on to the current system for naming new justices to the Supreme Court, which has created a deeply politicized nomination process that can be exploited to deny presidents the opportunity to fill open seats on the Court?
The U.S. Constitution has been modified 27 times through the amendment process since it was first ratified in 1788, but many of its features remain in their original form (or, for the electoral college, in a form that has undermined the initial reason for its creation). Some provisions in the Constitution may still be highly desirable — individual protections in the Bill of Rights, for example, or the general notion of limited government powers described by the first three articles.
But others may have outlived their usefulness, or even make it more difficult to preserve a constitutional democracy in practice. James Madison’s theory that members of each branch of the federal government would be motivated to defend institutional powers has been exploded by partisanship: Congress cannot be counted on to set limits on presidential power when the same party controls both the legislative and executive branches, as is currently the case.
President Donald Trump’s authoritarian tendencies have highlighted these problems by making clear that the existing constitutional system urgently needs fortification. In their new book, How Democracies Die, professors Stephen Levitsky and Daniel Ziblatt explain why they see authoritarian tendencies and warning signs in Trump’s presidency that could threaten democracy in the United States — a threat they contend did not begin with Trump.
Indeed, for decades, the authors observe, “America’s democratic institutions [have been] unraveling, opening up a disconcerting gap between how our political system works and long-standing expectations about how it ought to work.”
But Trump’s willingness to undermine unwritten norms that undergird our constitutional democracy has dramatically highlighted the crisis that exists. Trump is trying to subvert the independence of the federal justice system by seeking to turn prosecutors and investigators in the Department of Justice into political pawns. He has threatened to prosecute or otherwise punish political adversaries and journalists. He has indicated (for example, by his decision to fire FBI director James Comey) that he does not believe the rule of law applies to him, that he is above the law.
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Trump has not (yet) brought an end to constitutional democracy in the United States. But the danger is clear, and it is essential to think creatively about how to defend against the threat. Levitsky and Ziblatt emphasize the need to restore voluntary norms that help set limits on presidential power, and also to reform a Republican party that is now dominated by extremists. Those are essential steps. But it is also necessary to shore up the Constitution itself in order to make it more protective of democracy. Here are some proposed changes for a new Constitution:
Abolish the Electoral College; president chosen by national popular vote.
Either eliminate the Senate or create a new system allocating senators to multi-state regions containing roughly equal populations.
Expressly protect voting as a fundamental right that cannot be denied based on race, color, gender, or economic status. Protect voting rights for felons who have completed prison terms. Prohibit voter suppression tactics such as photo ID laws and voting roll purges. Establish election days as holidays.
Set new limits on the role of money in politics.
Prohibit the gerrymandered drawing of congressional district lines to favor one party.
Formally establish the independence of the Department of Justice on investigative and prosecutorial matters.
Require financial transparency and divestment of business interests for presidents.
Supreme Court justices serve one non-renewable 18 year term; new justices approved in part by bipartisan commission of experts.
This is admittedly, a tall order. It would require an entirely new constitutional process to make some of these reforms possible (the current Constitution does not allow changes to voting rights in the Senate unless each U.S. state agrees). This would not be entirely unprecedented. The original Constitution was drafted in a new process that allowed it to replace the then-existing Articles of Confederation without using the cumbersome amendment procedure provided by the Articles.
There are signs that at least Republicans and Democrats recognize the need to act. Former federal prosecutor Preet Bharara (a Democrat) and former New Jersey governor Christine Todd Whitman (a Republican) have recently launched an independent democracy task force reviewing how and whether to “turn soft norms into hard law.” It is not clear whether this task force would suggest constitutional changes or simply statutory reform, though both actions are well worth considering.
There would also be risk. Levitsky and Ziblatt note that authoritarians seek to make rule changes that allow them to consolidate power. Trump or his political heirs could see a new Constitution as an opportunity not to preserve democracy, but to destroy it.
It is obvious that broad bipartisan consensus would be necessary to make possible a constitutional convention designed to produce a new national document today that would strengthen our democracy. And, by itself, this would not be sufficient. A Constitution is merely words on paper unless it is supported by complementary norms. But there are also costs to inaction; if we fail to make changes, our constitutional democracy may not have the features it needs to survive.
But then again the suggested changes are what democrats/progressives dream of every day, control of the country forever and rule of the country by city folk.