Like most Americans, I have never found reason to question the notion that our founding fathers, endowed with genius, forged a virtually perfect foundation upon which to create a more perfect union of states and individuals within a republic. Until recently, I thought of the U.S. Constitution as sacrosanct, much like the Bible for Christians. It never occurred to me to ask whether, as imperfect people, we’d be better off with a little less – or different kinds of – perfection in our union.
In the UT Law magazine, I ran across an interesting article on that subject, “Reframing the Constitution,” by Sanford Levinson, a UT Law constitutional law professor. There, Professor Levinson reveals his concerns about whether the Constitution still fits our needs. He quickly points out that his questioning the Constitution is not a form of secular blasphemy, but rather, something the founding fathers had in mind all along. Knowing that the Constitution would need improvement in order to perpetuate its central values, he explains, that the drafters specifically included procedures for amending the Constitution in Article V, “including calling a brand-new constitutional convention.”
Professor Levinson then explains why we should now call for such a convention to “renew” the Constitution. He points to the predominant belief that Congress is dysfunctional and poll findings of a 63% majority in this country that believe it is going in the wrong direction. He allows for the fact that these perceptions could be the result of divided government (where the presidency and at least one of the two houses of Congress are controlled by different parties), but ultimately, Levinson concludes, the Constitution itself plays a detrimental role in our political system. Here are some of the deficiencies he identifies in our current constitutional structure:
1) Passing legislation is too difficult, especially on the increasingly challenging and important national issues of our day. In a bicameral system, each house of Congress has the ability to block all legislation passed by the other body. The difficulty is increased when the houses are controlled by opposing parties because the opposition party has an incentive to block any legislation of a first term president to stymie his chances to be reelected, the public interest be damned. (And as we’ve seen, it’s easy enough for Congressmen/women to “just say no,” and there’s not much we can do about it.)
2) The presidential veto isn’t just a check on congressional power, but actually creates a tricameral system (three lawmaking chambers). This might not be a system defect, Levinson allows, if the president truly represented the majority, but as we have witnessed, the electoral college sometimes results in a winner who isn’t supported by a majority of the voters, e.g., Al Gore’s loss to George W. Bush in 2000, and in 1968 and 1992 when Nixon and Clinton won with approximately 43 percent of the vote. Furthermore, the electoral college also guarantees that big predictable states (e.g. Texas and California) get very little of the candidates’ attention during the election process as the candidates fight it out in the appropriately named “battleground states.” (I would say that encourages unequal or uneven political participation.)
3) Life tenure for federal judges, especially those on the Supreme Court, assures that we are governed by de facto “dead hands of the past,” which is especially problematic in regard to matters that the founding fathers could have never imagined, e.g., NSA surveillance, electronic voting, cell phones, drones. And as Levinson states, “Some . . . might even suggest the power and willingness of the Supreme Court to intervene in national political issues makes us a quadricameral system.” Noting the 34-year term of Justice Stevens who retired at age 90, Professor Levinson suggests that single, non-renewable 18 year-terms might be preferable. (And does anyone see a problem with 6 Catholics on the court?)
4) Amending the constitution as described in Article V must follow a stringent process and causes our Constitution to be the most difficult in the world to amend. Professor Levinson finds it significant that the states have opted to make their constitutions significantly easier to amend. (Flexibility can be a good thing when you have a 200+ year-old document.)
And before you dismiss the notion of tweaking the Constitution with a don’t-mess-with-success rationale, consider this question posed by Professor Levinson: “Is it really possible that there are no lessons from our own experience that might enable us to improve our political system?”
I’ll go ahead and answer that: “No it’s not possible. There are many lessons!”
And besides, who wouldn’t love the opportunity for a redo on the Second Amendment? We don’t have militias anymore (at least legal ones), so why should they be well-armed? We now have a standing army, which is very well-armed – even better armed than the military thinks necessary . And most importantly, how many more mass shootings of innocent people can this country stand while we continue to swallow the contention that the Second Amendment prevents any solution?
Equally important, we need the language from the Equal Rights Amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This amendment, which failed to pass enough state legislatures by the 1982 deadline should be incorporated into any new document or its bill of rights. This would cover all LGBT individuals as well.
And just imagine a future in which abortion and contraception were no longer issues of national strife! I would propose an overarching section that recognizes that all people have unfettered rights over their own bodies. Ideally, it would be clear from the ERA language, but I suggest a belts-and-suspenders non-gender approach with language establishing that no law can be enacted to interfere with the doctor/patient relationship and any treatment decision derived therefrom.
Next, there would be constitutional provision prohibiting any law that would imbue corporations with personhood, recognizing them for the fictional entities they are, i.e., vehicles for financing business enterprises and shielding principals and officers from personal (partnership) liability. The new provision would expressly provide that corporations would not have the power to exercise religious beliefs, to engage in political activity, to marry, or possess any rights to free speech of any kind.
And what about religious liberty, i.e., freedom of religion? Can we establish, once and for all, that we are a secular state and freedom FROM religion is just as important as a freedom to worship as you see fit. In other words, can we all agree that a single religion (Christianity) does not respect the rights of others in this melting pot of citizens with their various and strongly-held religious beliefs?
Finally, I believe our political system would be improved if the president were elected for a single term, say six, seven, or even eight years (since most presidents win reelection anyway). This would free the president to govern and prevent the stalemate that often occurs after year two of a president’s first term in office. There could still be some form of impeachment if he/she doesn’t work out.
But after compiling my wish list of changes, my constitutional reverie met up with the harsh reality of a question: who would write this “reframed” constitution. We know Congress could not do it . . . as captives to party politics, they can’t do much of anything, plus they’d have to take a long break from their so-called lawmaking to complete the task.
Maybe we could somehow appoint a body of individuals that included government and law professors, former officeholders (U.S. presidents congressmen/women, judges, legislative staffers, White House counsels), historians, etc? They could hold televised public hearings to take testimony from knowledgeable individuals to assist in the task of writing a Constitution for our time. If nothing else, these hearings would be highly entertaining and a civics lesson like none other in modern American history. Remember the Watergate hearings? It might draw even bigger ratings than the Olympics!
The other option for selecting drafters (or reframers), however, is quite scary: holding elections. I can just imagine who would be elected from Texas: Louie Gohmert- types, right wingers, and tea-partiers who want to do away with government (except for Medicare) or make it small enough to drown in a bathtub a la Grover Norquist. Along with those who would destroy public education and the anti-science crowd (those who insist on he teaching of creationism in science classes), Texas would elect an ample number of abortion foes who would attempt to make abortion a federal capital crime. They’d want flat taxes and eliminate the IRS. They would bring their uncompromising, just-say-no attitudes to the task and nothing would get done. (Could we make the Federalist Papers required reading?)
Alas, the more I consider it, dear readers, I realize that this idea of calling a convention is too enlightened to work in the country we now know. In fact, reading about the various battles and skirmishes among the drafters in Philadelphia in 1787, it’s a minor miracle we got the constitution we did. Those men ultimately found their way to compromise and cooperation, albeit with difficulty.
It’s sad to think that over 200 years later, we are stuck, muddling along, fighting political and legal battles that will never advance the cause of a free and prosperous America or fulfill the promise envisioned by the our founding fathers. But, at least we aren’t singing “God Bless the Queen” and governed by the English Parliament. Or a Fuhrer. On the other hand, give the Supreme Court, with its altar-boys-for life majority, a few more cases like Burwell v. Hobby Lobby Stores, Inc. and we may find ourselves governed by Pope Francis. A constitutional papacy, anyone?
Enough said. Enjoy your fourth of July, anyway!