Changes that would protect existing norms, restore elements of the original constitutional design, improve democratic accountability, and head off future crises.
Changes that would protect existing norms, restore elements of the original constitutional design, improve democratic accountability, and head off future crises.
T he United States Constitution celebrates its 235th birthday today. It has been an immeasurable blessing to this nation. We were the first country in history to not only have a written constitution, but one that was binding upon the government, ratified by the people, and could not be changed without the latter’s consent. Key founders such as George Washington, Alexander Hamilton, John Adams, and John Marshall emphasized the importance to the American project of fixed, written rules, and warned against changing them; in Washington’s parting words, “the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.”
One example of how seriously the Founding generation took the government’s subservience to the law: The First Congress, in the Judiciary Act of 1789, created the position of attorney general as one of the first four Senate-confirmed cabinet-level presidential advisers. As the act recited:
there shall . . . be appointed a meet person, learned in the law, to act as attorney-general for the United States, who shall be sworn or affirmed to a faithful execution of his office; whose duty it shall be to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments.
There was no Department of Justice for the attorney general to oversee until 1870, and no FBI until 1908; the position’s original role was more to ensure that the executive branch followed the law than to enforce it against the citizenry. The attorney general has never been a cabinet office in the United Kingdom, and no attorney general was even admitted to attend a British cabinet meeting until 1857, on which occasion his advice was promptly ignored. But Congress wanted more careful attention to following the written law. Washington from his very first cabinet meeting included Edmund Randolph, the first attorney general.
And yet, as well-designed and durable as the Constitution has proven itself, it has been amended 18 times (if you count the Bill of Rights as a single package). Tampering with the work of the Founders — and in particular, tampering with structural aspects of our system that have become embedded in our political culture over time — is not to be taken lightly, and the amendment process is designed to be difficult. But not impossible. With that in mind, I would suggest that a number of prudent amendments ought to be considered by Americans across the political spectrum.
I have two parameters for this exercise. First, I suggest no amendments that would drive new, politically controversial changes to the country on substantive issues. For example, there is no amendment to the Constitution I would want to adopt more than the Human Life Amendment, which would permanently ban abortion nationwide in the same way that the 13th Amendment permanently banned slavery. But realistically, we remain a long way away from a national political consensus against abortion strong enough to pass the Human Life Amendment in any form, even with any number of politically palatable exceptions. The amendment remains a long-range goal, but much groundwork with the public must be laid first. The same could be said on a number of social-issue fronts.
Second, I start from the premise that the American system of government generally works well, and that even aspects of the system that are not ideal are nonetheless part of the small-c constitution of the country: Americans are accustomed to them, and have developed political habits around them. Change is not to be desired unless it would be easy to explain and its likely effects foreseeable. Instead, my top priorities would be to fortify aspects of our traditional system against mischief or radical change, restore aspects of the system that have been mutilated by abuses of power, undo usurpations by judges and other unelected actors, and preserve traditional rights against threats that were not fully envisioned at the time of the Founding.
In doing so, we can look for inspiration to four great and fundamentally conservative amendments:
- The Twelfth Amendment, in 1804, fixed the presidential and vice-presidential election process, by eliminating the rule of having the second-place finisher be vice president. It came in response to the disputed election of 1800 and brought the Constitution in line with the practice – unforeseen in 1787 – of a two-party system running a ticket of presidential and vice-presidential candidates.
- The 20th Amendment, in 1933, moved up the start of presidential and congressional terms from March to January to reflect shorter transportation times to Washington, responding to the concern that a slow transition hampered Franklin D. Roosevelt in addressing Depression-era bank panics. It also included a number of provisions aimed at heading off transition crises in the event that a candidate died before being inaugurated or selected by the House or Senate.
- The 22nd Amendment, in 1951, constitutionalized the norm that a president may serve only two terms. That norm dated to George Washington, and no rule was required to enforce it until FDR was elected to a third and a fourth term. The amendment, proposed by the Republican Congress in 1947, thus restored a preexisting traditional practice.
- The 25th Amendment, in 1967, provided for the appointment of a vice president if the office was vacant, as well as a procedure for succession if a president is ill or unable to function in office. This, too, aimed at heading off a potential future crisis.
None of these amendments sought a major change in how American government worked; they aimed, instead, to adapt the Constitution’s express terms to the governing norms, restore traditional practices, remove ambiguities, and head off future disputes that might rend the system.
With those guideposts in mind, here is my list. It is not exhaustive, but it would be a good start:
Keep SCOTUS at Nine: I have written at length on the “Keep Nine” Amendment before: a nine-member Supreme Court has been a stable feature of our system since 1869, and should be written into the Constitution in order to prevent the menace of court-packing, which would severely destabilize the rule of law, fundamentally alter the relationship between the branches of government, and create an uncontrollable vicious cycle of retaliations. Ideally, an amendment would make explicit what is already implicit: Democrats can’t get around this by removing the justices to another court and claiming that this is not an unconstitutional interference with life tenure.
Make the Electoral College automatic: The basic structure of the Electoral College is, despite its progressive critics, straightforward: Each state is awarded a number of electors by population (with small states gaining an advantage from the addition to each state’s votes of two electors for their two senators), a statewide popular vote is held, and the winner of that vote claims the electors. Two states, Maine and Nebraska, have chosen to distribute some of their electors by congressional district. But as we saw in recent elections, particularly in 2020, there are lingering threats to the system: States claim that their legislatures could choose electors directly (which no state has done since 1876) even after holding a popular vote, there are popular pressure campaigns on electors to be “faithless” and not select the candidate they were elected to support, and there are controversial claimed ambiguities in the Twelfth Amendment process that Donald Trump tried to exploit.
Congress can fix some of these problems by reforming the Electoral Count Act of 1887. But a firmer basis for eliminating future controversies over the election of the president would entail amending the Constitution to make clear that every state must choose electors via a statewide popular vote, and the winner of that popular vote must be automatically awarded all of that state’s electors. The amendment would also explicitly permit Congress to set, by legislation, certain types of rules of the road for how it counts electoral votes, thus removing constitutional objections to the Electoral Count Act.
Preserve the Senate filibuster and cloture rule: The Senate filibuster, like the nine-member Supreme Court, is a deeply entrenched part of our system, notwithstanding its erosion by lowering the threshold in 1975 and abolishing its use against judicial and executive nominations. The Constitution already sets minimum thresholds above a majority vote for treaties. My proposal would be simple, and mostly constitutionalize present practices: A bare majority of the Senate may confirm presidential nominees (including judges), set rates of taxation, and appropriate funds for a period of up to two years. But it may not pass any law binding on citizens, or create any program extending beyond the current Congress, without 60 percent of the Senate — a rule that thus requires the consent of statewide elected officials in at least three-fifths of the states.
Age limits: We are increasingly plagued by gerontocratic leadership in the presidency and Congress, and we are storing up trouble. We also have no workable mechanism to remove an infirm Supreme Court justice. None of this was foreseeable at the Founding, when lifespans were much shorter. In order to head off crises that are at this point inevitable, we should amend the Constitution to prohibit anyone past the age of 80 from being elected to Congress, require Supreme Court justices and to retire by the end of the term in which they turn 70, and bar presidents from serving past a lower age — perhaps 75. Naturally, such an amendment would require some limited grandfathering of people currently in office, such that it does not become tied up in personal debates about Joe Biden, Nancy Pelosi, Mitch McConnell, Donald Trump, or Clarence Thomas. But our system would, within a few years, adjust perfectly well to these outer limits. The alternative is to eventually be led by those in a position of infirmity even more obvious than Biden’s current condition.
Age limits for Congress and the Supreme Court would also produce an outside form of term limits, without the intrusiveness of artificially shortened terms of office.
Budget reforms: The line-item veto is a popular provision, previously passed as federal legislation and used in many states. (It is, in fact, just about the only good idea to come out of the Confederate Constitution.) Enshrining it in a constitutional amendment would allow presidents to highlight and veto particularly problematic portions of omnibus budget bills.
This amendment would change the dynamics of how such bills are written and negotiated, and gives the executive branch more power. But it could be paired with the other items. One is biennial budgeting, which allows Congress to go through the budget process every other year rather than every year. Another is to sunset all federal spending to require affirmative reauthorization — as the Framers originally expected Congress to work, as it worked until the 1930s, and as the Constitution explicitly requires it to work for the defense budget. Many entitlement programs would still be reauthorized if required to come to regular votes, but at least they would not run forever on autopilot unless affirmatively dismantled. That would restore control to the elected branches over the budget.
Separation of federal and state budgets: Here, we would get onto more controversial ground. Accountability in our federal system has been gradually eroded by the proportion of state and local budgets that are funded by grants and programs in Washington. The fiscal justification for this is that the federal government can borrow money more cheaply than can states or localities, but that just allows more of our nation’s spending to be deficit-financed, evading state and local balanced-budget rules.
A federal balanced-budget amendment, while appealing at first glance, would never be workable, and would be used by progressives to mandate higher taxes; by contrast, an amendment returning to states and localities the burden of raising locally the money they spend locally would give voters more direct input into what projects are truly worth paying for.
Limit spending leverage: The Supreme Court has been vigorous in protecting the right of religious people and organizations to receive government benefits on an equal basis with secular people and organizations. But many believers still rationally fear that taking the government’s dollar now means being coerced to violate their conscience later. We need not enshrine particular views on social issues into the Constitution in order to enact a more general protection against the use of the ever-expanding size of government as leverage to compel government orthodoxy at the expense of free conscience — religious or otherwise.
There are other ideas worth considering, such as abolishing racial gerrymandering, more strictly limiting abusive uses of the presidential pardon power, limiting the ability of former officials to work for foreign governments, and fortifying the constitutional limits on delegation of legislative powers. Other things we should have done years ago — such as preserving state control of marriage — are by now politically lost causes, and will be so for the foreseeable future. Of course, a good part of what we need is simply an “and we mean it” clause directing the Supreme Court to go back to enforcing limits (such as on the Commerce Clause) that it has long disregarded. But always, our first goal when approaching the Constitution should be to protect and preserve what has worked, head off potential disasters before they happen, and safeguard liberties that have been traditionally respected but face greater threats in the future that were unforeseen in the past.