It’s Time for a New Constitution

On Thursday September 17, the United States celebrated Constitution Day—a holiday celebrating the signing of the Constitution in 1787. In the intervening 233 years, the document has undergone 27 revisions that have aimed at making the United States and its institutions more inclusive, responsive, and democratic. Yet for the entirety of the 21st century, the institutions created by the Constitution have been under tremendous strain. A combination of explicit anti-majoritarian design, deep partisan differences, and large-scale crises has created an atmosphere that challenges the framework set out in the Constitution. When political institutions, either by design or happenstance, fail to meet the challenges of their day, they must either be reformed or replaced. Replacing institutions and frameworks is a troubling endeavor. The outcome that results from such processes may very well be worse than that which existed before. Despite that possibility, I believe it is time for a new constitution.

The Constitution creates a system of checks and balances that is rooted in three branches of government. Each of those three branches is precariously close to losing legitimacy, especially to the rising generation of young voters. Legitimacy is the idea that a government has both the right and authority to rule. In most democratic nations, this idea is deeply intertwined with the will of the people. This will is most often expressed through elections which choose the institutions (directly or indirectly) that do the day-to-day governing. In total, 41% of Americans believe “this country cannot solve many of its important problems.” The Harvard University Institute of Politics found this year that only 8% of Americans between the ages of 18 and 29 surveyed said that “our government is working as it should be.” A bare majority (51%) stated that our problems could be solved by reforming existing institutions, not replacing them. The rest argue that our institutions need to be replaced. The lack of faith in our institutions is deeply troubling and is the direct result of the inability of electoral majorities to accomplish policy goals.

This inability to do anything is an outgrowth of the Constitutional system. Political scientist Francis Fukuyama once used the term “vetocracy” to describe American government while explaining the decay in its political institutions. His argument rests on some of the more anti-majoritarian aspects of the system, including a Senate vastly overpowers rural states and an electoral college that functionally devalues the votes of individuals who don’t live in swing states. Heightened partisanship (which includes the rise of partisan gerrymandering) has made it so that legislative governing is only possible in times of acute emergency (e.g., a global pandemic) or unified control of both Congress and the presidency. Even then, legislation is limited in scope by the arcane filibuster and the quick two-year election cycle that can swiftly replace existing majorities. As a result of legislative gridlock, actual policymaking is left either to the executive or the judiciary.

The Presidency is a troubling institution on its own. Unlike our peer countries who also have Presidential systems, the United States has been lucky. As Juan Linz wrote in his seminal essay The Perils of Presidentialism, presidential systems naturally result in dueling claims of legitimacy from the democratically elected legislature and executive. This is especially the case when those branches are held by opposing factions. Furthermore, presidential elections are zero-sum, which only serves to heighten factionalism. Together, these two features have led to instability and coups in every country that has tried presidential government so far save one: the United States. Hoping to remain the exception to the rule is a dangerous game, and an overhaul of the Constitution is necessary to ensuring democratic stability.

Even beyond the fragility borne of dueling claims to legitimacy, there are ongoing challenges to the constraints on the Presidency in the form of the Unitary Executive Theory. The Unitary Executive Theory is an interpretation of the Constitution which argues that the President has direct control over the entire Federal government under his Article II powers. In recent years, a more radical interpretation of this theory argues that the President’s conduct in performing the duties of his or her office is beyond Congressional or judicial oversight. This theory—espoused by figures as important as Attorney General William Barr—only highlights the weakness of the Constitution to bad faith actors who would use it to pursue political goals unchecked by the other branches.

The Federal judiciary was the institution to which the framers gave the least detail. Over the years it has garnered power as both a defender and subverter of democracy. Through the power of judicial review, it has the ultimate veto over legislative and executive action. Given this authority, it is no surprise that the Courts have become a feature in partisan bickering, often ruling in the face of majority opinion. In recent years, a majority of its members use to a philosophy called “originalism” to make their decisions. In the words of Associate Justice Amy Coney Barrett, “originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” On its merits, this leaves many questions open to judicial interpretation, since the document written in 1787 does not address a number of pressing issues. An updated Constitution would leave less up to judicial whims.

Unsurprisingly, 2020 has been a good year for proposing democratic reforms. We have seen proposals to add the District of Columbia and Puerto Rico as states, along with demands by many in the Democratic Party to remove the filibuster. Both of these plans are attempts to counter the anti-majoritarian imbalance in the Senate. These solutions are designed to solve the issue of a population imbalance in the Senate. While adding a few states temporarily solves the partisan issue and would allow a Democratic majority to govern, it does nothing to solve the fundamental anti-democratic nature of the body.

In reforming the Executive, there is a growing movement to effectively abolish the Electoral College through the National Popular Vote Interstate Compact. This particular idea is a smart workaround that avoids Congress and the arduous amendment process. However, it does nothing to solve the fundamental problems of dueling legitimacy and the danger posed by the Unitary Executive Theory. In order to combat the anti-majoritarian lean of the Supreme Court, there are proposals to expand the number of seats or add term limits. Activists today are clamoring for amendments to overturn Citizens United v. FEC and limit dark money spending in elections. These are laudable goals, and in another era these reforms could seriously return legitimacy to our institutions. But today they are not sufficient.

Many of these reforms are unlikely given the heavy majoritarian burdens they require in a polarizing time. Perhaps most devastatingly, I find it unlikely that Congress and the president would be willing to expend political capital on reforming democracy while there is a pandemic, a recession, and innumerable problems associated with long-term crises like climate change. Finally, it is worth noting that politicians who get into power under a system have little incentive to change that system, despite the structural inequities that may hinder their progress the next time. Small reforms to existing political structures are not enough to defeat the growing crisis of illegitimacy. The only path forward is wholesale replacement.

Many of you probably have lingering doubts about scrapping the Constitution. After all it is the Constitution—that document we are told to revere as the height of liberal democratic thinking, where our rights are enshrined, and the rules of the oldest democracy known to Earth are written. The problem with this reverence is that it is misguided. The U.S. Constitution is our second attempt at a framework for setting up democratic institutions. The first attempt—the Articles of Confederation—failed so badly that the Founders replaced it wholesale with a new document with new institutions. Thomas Jefferson, in a letter to James Madison, wrote, “Every constitution then, and every law, naturally expires at the end of 19 years.” By Jefferson’s accounting, we are 214 years late and desperately in need of a new Constitution. Replacement is squarely within the tradition of American democracy.

There are some who hide behind veneration of the Constitution to conceal their real reasons for maintaining the current document: naked partisan power. By happenstance, the GOP currently has advantages under the Constitution thanks to the geographic makeup of their coalition. When you combine that with many anti-democratic efforts such as voter suppression and packing the courts, what we have is a large-scale effort at making the federal government less responsive to wills of majorities in order to entrench Republican power and advance Republican policy goals. A new Constitution is ultimately the best way to stop this attempt at entrenching minority rule.

If that does not convince you, then look to the field of comparative politics, where there are numerous examples of countries replacing their constitutions for a variety of reasons. The French got rid of the one they made in 1946 and started fresh with a new one in 1958 due to a political crisis. Countries transitioning to democracy often rewrite their constitutions to prevent future authoritarian power grabs, like the Spanish did in 1978 and the Brazilians did in 1988. Most recently, Chile voted in a plebiscite to scrap their constitution which was a vestige of the Pinochet dictatorship. In all of these cases, the existing frameworks and institutions were insufficient to meet the demands of the moment. As we in the United States face a similar dilemma, we should not shy away from the obvious solution implemented by many across the world.

Politics sometimes requires a fresh start. New circumstances require new institutions to handle the situations of the day. In the United States we are told to revere our Constitution and its Framers. The fact of the matter is that a flawed 18th century document cannot rise to the challenges of our time. A new document is needed that is more broadly democratic, less prone to elite capture, and allows for the creation and implementation of policies that will support a strong American populace for the 21st century.