Faith in our institutions are at an all time low. This is a bipartisan problem that is felt most acutely in the federal government. Whether it’s the Presidency, Congress, or the Supreme Court, over the last 75 years Americans have slowly felt as if they can't trust their government. However, this is not a unique problem in American history. Think of the chaos of the 1960’s and the upheaval of the industrial “Gilded Age” followed by the Great Depression. The Civil War and Reconstruction easily mark the most divided time in American history (after all we were literally divided into two governments). Even the original ratification of the Articles of Confederation and Constitution itself was incredibly contentious (and sometimes violent).
The solution then, is the same as the solution we need now. The United States already has a system to improve the federal government. I suggest we make small modifications to our federal Constitution to better handle the problems of this millennium. This has been the pattern of response to national crises roughly every 50 years. Here’s a quick breakdown of the previous 27 Constitutional Amendments:
- 1791-1804: Bill of Rights and 11th and 12 amendments laid out essential rights and corrected blind spots in our judicial and legislative system.
- 1865-1870: Three Post-Civil War amendments finally ended slavery, made all born in America citizens, and gave all male citizens the right to vote*
- 1913-1920 and 1933: Four Progressive amendments that created a more equitable tax system, direct election of Senators, women’s suffrage, and then two more after the Depression adjusted inauguration dates and repealed the 18th Amendment.
- 1951-1971: Five Civil Rights amendments adjusting presidential terms, DC representation, poll taxes, presidential succession, and voting age.
- 1992: This largely ceremonial amendment to limit congressional pay was one of two originally proposed in the Bill of Rights, but were not ratified then (go here for the delightful story of how it passed).
*It’s important to recognize that these 27 amendments did not solve all of America’s problems or even completely solve the problem they were trying to fix. However, they were instrumental in eventual success. For example, the Civil Rights movement of the 1950’s/60’s was successful because the federal government finally agreed to uphold the intent of the post-Civil War amendments. And ignoring the one off impactless amendment from 1992, we haven't had a meaningful Constitutional amendment in 51 years.
It’s also important to note that these successful amendments were structural changes to how our government works and who it works for, NOT largely hot button issues of the day (like abortion, guns, or in the case of the 18th Amendment, the prohibition of alcohol). Instead, amending the Constitution is best suited for fixing outdated structures so the now improved government can deal with those hot button issues.
So in what ways is the structure of the U.S. Constitution failing to handle the problems of the 21st century? I believe America’s primary issue is that the political fringes of each party have become the dominant voice. Both in elections and the media and especially on the internet). This has pushed a moderate majority into the corners of their own political institutions. Here are a few examples of how most Americans actually stand on a few of our most tense political issues:
- “85 percent of American voters think abortion should be legal in some or all circumstances“ and a majority of Americans fall in the middle
- “a large majority, 83%, supports supplying the Ukrainian army with military equipment”
- “More than two in three Americans (68%) support legalizing marijuana”
- “U.S. support for legal same-sex marriage continues to trend upward, now at 70%”
- “91% welcome immigration, including 68% who favor a “low level”’
To put those numbers in context, only “60% of U.S. adults drink alcoholic beverages”. If you’ve ever tried to pick a restaurant with a large group of people then you know it’s hard to get a majority of people to agree on anything. So that means our political institutions and the conversations surrounding them are being overrun by the loudest and the most extreme. And I don’t even mean extreme in a negative way. Just in a way that doesn’t represent the majority of Americans' perspectives. This does not work in an “infinite game” where our primary goal is to ensure the political game keeps going as we make this a “more perfect union”.
So here I submit 5 proposed amendments to the United States Constitution (each with a few Sections). 1st is on improving federal elections, mostly for Congress. 2nd on trying to balance the power of large corporations in private and public life. 3rd proposed amendment to improve the federal court system. 4th to improve the executive branch. And finally the fifth is a wildcard idea that would probably have the biggest impact on balancing how government power. I even organized them by priority in which I think would be most easily passed and have the most positive long term impact. However, all 5 do not need to pass for there to be significant improvement.
1st Amendment Proposal: Gerrymandering, Ranked Choice Voting, and Campaigns in Federal Elections
Section 1: Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.’
Section 2: All federal elections will move from a “first past the post” to an “instant runoff” structure. If a candidate receives more than half of the votes in an election, that candidate wins. However, if no majority winner is found, the race is decided by an "instant runoff." The candidate with the fewest votes is removed, and voters who picked that candidate will have their votes count for their next choice. This process continues until there’s a majority winner.
Section 3: All Federal campaigns or electioneering are limited to take place 3 months before Election Day, which will now be a Federal holiday. This includes organizations or individuals.
This first proposal is the most important. Section 1 is the most needed Constitutional amendment. Gerrymandering allows elected officials to draw the lines for who elects them. This has been done since the beginning of our country, but modern technology allows it to be dangerously precise. More and more districts are drawn to ensure victory of the incumbent party. This means general elections between both parties have an assumed winner and the party primary is the real contest. So politicians move to the middle of their party (organizations not only absent in the Constitution, but actually warned against by our framers), instead of the middle of their constituents. The right moves farther right and the left moves farther to the left. In fact, I actually took the exact language proposed by former Supreme Court Justice John Paul Stevens in his book on the topic of amendments.
Section 2 implements ranked choice voting and removes the concerns that you're stuck between 2 candidates you don’t like. It also removes the cost and complication of runoff elections. This is already used in a few states and I think it would be adopted more locally once it’s Constitutional nationally. I don’t expect this will totally shake up the two party system (an overstated concern in my opinion). Instead, what it will do is, in combination with Section 1, give politicians more specific information from their constituents and hold them accountable to them.
Section 3 is more straightforward. The goal is to limit what has now become a continuous election cycle; where the next campaign season begins immediately after election day. This not only exhausts voters and decreases the quality of discourse, it favors candidates with deep pockets and big donors. It also finally makes Election Day a federal holiday.
It’s also important to note that these structural changes could be, but never will be implemented by Congress itself. This Amendment restricts the power of entrenched interests and opens them to more political and ideological competition. Therefore these must be done by Constitutional Amendment.
2nd Amendment Proposal: Antitrust and Campaign Finance
Section 1: No provision of the Constitution shall be construed to prohibit the Executive and Legislative Branch from fulfilling their obligation to limit or break-up any national business monopolies or trusts (group of businesses).
Section 2: Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
Section 1 tries to codify into the Constitution a century old series of laws that created the Federal Trade Commission and our antitrust system. However, those laws sometimes rub up against interpretations of other parts of the Constitution. Those old laws also require the branches of government to choose to be active and I’m hoping the phrasing of “obligation” will require action. I’m also hoping these changes will then make it easier for Congress to help deal with America’s growing inequality problem.
Section 2 is another one I borrowed from Justice Stevens. It essentially prevents courts from overturning reasonable campaign finance controls. These two sections together would make it easier to restrict the growing power of big business over politics.
3rd Amendment Proposal: Clarifying and Updating the Federal and Supreme Courts
Section 1: No Person shall be a federal judge who shall not have attained to the age of forty years, and been ten years a Citizen of the United States.
Section 2: A term maximum of 15 will be set for each justice appointed after the ratification of this amendment.
Section 3: The number of Supreme Court justices shall be set at 15. A new justice seat will be added every 4 years until that number is reached.
Section 4: New seats must be filled by the president in office when the seat is vacated.
The Constitution is surprisingly silent on the federal courts. Unlike the other branches there is not an age or even citizenship requirement. Article 3 which lays out the Court’s powers has less than 400 words. It wasn’t until Marbury v. Madison (1803) when it was even exactly clear what the role of court would be. As the other 2 branches have increased in dysfunction, more and more pressing issues have had to be solved in the courts. That has resulted in the same kind of political dysfunction there.
Section 1 is borrowing language from the other age and citizenship requirements in the other branches. To my knowledge this would only have excluded a dozen or so judges in American history (and just by a few years).
Section 2 gives a specific limit on the number of years a justice can serve. Right now it is life, but the average is about 16. Recently there has been a race to nominate younger and younger justices so they can stay longer. This would have required Roberts and Alito to retire soon. It would have required Clarence Thomas to retire 15 years ago. However, I do think it’s important this only be applied to future justices so as to decrease its controversy (this was also done with the 22nd Amendment limiting the president to 2 terms).
Section 3 almost doubles the current number of justices, but over a 24 year period. The number of justices fluctuated between 5-10 until it was stabilized at 9 after the Civil War. However, I believe 15 justices decreases the pressure of each new nomination without making group deliberation too onerous. It would also allow them to break into sub-committees if that process was found helpful to take on more cases.
Section 4 prevents any more partisan delays like we saw in 2016.
4th Amendment Proposal: Altering the Only Elected Position in the Executive Branch
Section 1: The position of the presidency will be divided into 3 separately elected positions to replace the position of Vice President. All three positions will retain the same requirements and accountability currently held for the position of President.
The President will retain the domestic responsibilities and appointments laid out in the Constitution other than those prescribed to the other two elected positions.
The Secretary of State will oversee foreign affairs and Ambassadors of the United States. All military appointments will be done by the Secretary of State with the approval of the President and then confirmed by the Senate.
The Attorney General will oversee the Department of Justice as the chief law enforcement officer as well as advise the heads of federal executive departments on legal matters. All appointments to leadership and division head positions will be done by the Attorney General with the approval of the President and then confirmed by the Senate.
All 3 elected members of the Executive Branch must agree to use any weapons of mass destruction and only in response to those weapons used against the United States.
Section 2: The elected positions of the Executive Branch will continue to be chosen by the Electoral College, though all states must transition to a proportional model in which the number of electors each state awards is equal to the percentage of the popular vote the candidate received.
Section 1 solves a problem that the modern presidency has created. If there is one part of our federal government the founding fathers wouldn't recognize it’s the power of the Executive. The President now appoints or oversees 4 million government employees. This is how most states (including my home state) elect their Executive Branches. It also removes one of the biggest structural flaws in the Constitution, the useless Vice President. As the power of the presidency has grown, it has become more and more alarming that the person set to take over if the president is unable, is an otherwise powerless position. And it assures the Justice Department remains independent. The last part of Section 1 alters what is now a unilateral nuclear decision maker.
Section 2 keeps the intention of the Electoral College without the exaggerated effects we see now thanks to a larger divide between urban and rural America. This would prevent Presidential elections from being decided in essential 5 swing states. It also prevents voters in states like Wyoming and Vermont from having their vote count almost 4 times more than Florida or North Carolina. It’s important to note that the current “winner take all” strategy was not always the case.
5th Amendment Proposal: Making it Easier to Increase the Number of States
Section 1: U.S. territories and regions within states may apply for statehood without Congressional or Presidential Approval once they have reached a population of 1 million residents.
Section 2: Contiguous regions within states may apply for separate statehood without Congressional or Presidential Approval once they have reached a population of 1 million residents.
Section 3: The number of states shall be capped at 250.
Section 1 allows for something that should have been done a century ago. If there is one thing that most Americans throughout history would recognize is the addition of new states. In 200 years we grew from 13 original colonies to a continent full of 50 states (about one state every five years). However, due to race (most non-state territories are suspiciously brown) and a love of round numbers we have not increased the number of states even as we kept them as U.S. territories. The Amendment would also prevent the U.S. from oppressively adding new territory because the local population could quickly become a voting state. Simply, the Constitution should follow the flag.
Section 2 essentially removes Article 4, Section 3 of the Constitution which requires Congressional approval before a state can split. If we truly trust American Federalism then having large states (either by land side or population) just doesn’t fit with the original blueprint for our American republic. Imagine how much less controversial the recent Supreme Court decisions would be if moving to a new state was as easy as moving to a new county.
Section 3 prevents states from gaming the system and creating an unmanageable number of states. 250 may seem like a lot, but Virginia, by far the largest state in 1790, had a smaller population than even the smallest state Wyoming today
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The goal of all 5 of these amendments is to increase “state capacity”. To increase the quality of our government while also binding the country closer together. I have heard concerns that our Constitution is just too old and too flawed to be fixed. But do you think the political leadership that you are so unsatisfied with could remake something better from scratch? If we can’t pass and execute good laws, how could we trust anyone to create a whole new system?
The founding fathers assumed we would make structural changes to the Constitution as we saw structural changes to our country. They themselves passed 12 amendments. James Madison, the primary writer of the Constitution, helped oversee the passage of all 12 even before he became President. He understood the document would need to be updated. It has been done 27 times. We’ve since seen every other generation pass 3-5 amendments to deal with mounting crises. I believe we can and must do it again.
In many ways you wouldn’t even recognize the way our country first functioned under the original Constitution. No protections for citizenship or voting rights (for even landless white men). Non-functioning presidential election system. Not even an assumption that the Constitution even applied to the state governments. No direct election of senators and taxes to cast a ballot.
The final question is, how do we actually pass an amendment? Although there are two ways to amend the Constitution, all 27 amendments have followed the same path. 2/3 of Congress must approve the amendments and then 3/4ths of the states must approve them. It’s a difficult road, but it doesn’t have to be done in one sweeping reform. Americans are not uniquely broken, but an unaltered Constitution has been. It has improved before, it can be again.
