Opinion: Why a new U.S. Constitution may be the only way to fix the divided state of the union


#1

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.


#2

Written by a true Clntonian . In this Constitutional Republic we have many.checks and balances that have been abused by BOTH parties for political purposes.
The Electoral College works fine until a.President is elected that some don’t like.All our systems aren’t perfect but are the best there is.
There isn’t anything wrong.with voter ID Laws. What is wrong with proving who you are on the voter rolls??? I assume we.shouldn’t show photo ID when cashing a check. This must be discriminatory How hard.is it to get a state issued ID card???.
I hope you know ,both Dems and Repubs are guilty of gerrymandering voting districts.
The US Supreme Court ruled in favor of big money in elections when.they ruled against Citizens United
We can’t legislate everyone’s behavior. The individual.is the greatest threat to progress.


#3

The first time a Democrat wins the electoral college and loses the popular vote they will all sing a different song.

The electoral college performs as advertises and prevents the tyranny of the majority.

Allocating senate seats would make the senate look just like the House which circumvents the purpose of the Senate and the reasons it was set up the way it was.

Money in politics? Perhaps a great idea only if they limit the election process to 90 days and the MSM is not allowed to publish anything regarding politics during the process.

Gerrymandering. An interesting concept as our democrats gerrymandered our conservative district. All under the supervision of activist judges appointed by presidents with agendas.

The SCOTUS issue is a great idea. When the SCOTUS was first set up for life it wasn’t so long as life expectancy was shorter. It would prevent the aged like ginsburg who clearly is past her prime and is nothing but a activist place marker.

Independence of the DOJ. And interesting concept as an independent FBI. Both populated by people who are naturally biased who work for the president. I find it interesting we discover exactly how biased both agencies really are after theBama years.


#4

The honesty is appreciated!!!


#5

Thank You Monte,a True Gentleman.If you look at my state of Pa, the voting districts were drawn by Repubs . If you look at a map of Reading and Berks County where I live it doesn’t make sense. It looks like an abstract mosaic or puzzle and I’m a Repub. Figure That!!!


#6

Could you extend your remarks here please. The comment ‘the individual is the greatest threat to progress’ causes my eyebrows to raise…

FYI, using the link symbol to turn text blue is not the proper use of it. I click on a link if I think it well clarify someones thoughts and yours seem to go to ‘Error’… Ah… I think I see the problem… when you put a ’ . ’ between two connected works it creates a link if it looks like a plausible URL…


#7

The real interesting thing with this comment is that … for the most part the biggest and most egregious attempts to usurp the Constitution occurred before the 1970’s and have been expunged from our legal system. The absolute twisting of the meaning of the constitution, for instance, creation of federal safety nets and indeed attempting to take control of the educational system at a federal level as well as the removal of the individual right of free association are still very much in dispute…


#8

And if you look at the 6th congressional district in Colorado, the Democrats redrew the districts incorporating the city of Aurora, a liberal enclave into the 6th cutting out a large conservative area in hopes of converting it to a Blue district. Aurora shares nothing in common with Douglas County which is far to the south. So far it hasn’t worked.


#9

Scott,What I mean is that we can make all the laws we want,but it’s the individuals behavior ,in this case,politicians that I’m talking about.The conficts of Interest,and putting donors ahead of their constituents and the lack of any kind of consciousness.I6 don’t intentionally hit a link symbol, I have short thick fingers which gives me problems when I text or post.


#10

Got ya… I didn’t think you were taking the position of the commune and displacing the thoughts and dreams of the individual but I wanted to be sure. Of course even in that context it gets muddled… relative moralism muddies the water in an otherwise cohesive society… and to add, we have done great damage to the right of free association… those associations, rather than law should determine our moral fabric…

As far as the link think… yea I kind of figured that when I went back an looked a the times it has happened… cool…


#11

I’m not sure about the EC, but would be fine leaving it until something demonstrably better comes along. Compelling arguments are made on both sides. So far republicans have benefitted more from instances of loosing the PV and still winning the EC, but that could honestly be coincidence.


#12

Scott,I’m glad that you can see that I’m intelligent enough not to be part of the Leftist Agenda.I tend to chart my own course although some may feel I’m a little off course.


#13

Such modesty Freedom!!!


#14

If it’s not broke don’t fix it !
The libs have a corner on crime ridden sanctuary city’s . Who in their right mind would abandon a system that counters that abomination ?


#15

Yep… nothing broken about the constitution that an amendment can’t fix… and their just isn’t enough will of the people to change the document we have… so… democrats by and large find ways to ‘circumvent’ the constitution… judicial deference, judicial review, precedence, executive order. After we break the establishment system that seems to be made up of democrats and Republican collaborators, we need to take things like Title II and VII of the 1964 Civil Rights act back to the Supreme Court to look at the Commerce Clause in the way it was originally intended… that one review would help cure a lot of this nations ills… And just as Trump is pushing EO’s created by Obama back to congress where they belong, the federal government should push social safety net programs back to the states where they belong…


#16

In some respects the constitution was broke and needed fixing before the ink was dry on it. As acknowledged so quickly afterwards that we’d better write in some protections for the people from their own government.


#17

Exactly what I said If it’s not broke don’t fix it !


#18

Well… we all know the argument around that… The magician Hamilton says their is no need… by writing down a list it would just minimize the multitude not that exist naturally without formal declaration… He almost pulled a fast one their didn’t he…


#19

It’s had 27 reparations over the years.


#20

And hundreds of usurpations… that have rendered most of our base law useless…