Americans supposedly embraced change in the 2008 election, but we have devoted little effort to the most fundamental political change we can adopt: amending the Constitution. In 223 years under the Constitution, we have amended it only twenty-seven times. With the approach of May 25, the anniversary of beginning of the Philadelphia Convention in 1787, we should think about how it could be better.
The Framers made the amendment process difficult. Amendments have to be approved by a two-thirds vote in both the Senate and the House of Representatives, then ratified by three-fourths of the state legislatures. (They also can be adopted by a new constitutional convention, but most Americans recoil from the disruption that such a convention might work.)
So what should be the Twenty-Eighth Amendment? Or the Twenty-Ninth? A range of proposals are pending in Congress and zipping around the Internet. They range from adjustments in the mechanics of the federal government to pronouncements of broad social policy.
Direct Election of the President - Our elector system for choosing presidents has several defects. It gives extra power to states with low population. It often distorts election results, transforming modest winning margins in the popular vote into large electoral vote victories. And it occasionally produces "winning" candidates who actually commanded fewer popular votes than their "defeated" opponents; it has done that three times already (1876, 1888, and 2000).
Since the summer of 1787, scores of new constitutions around the globe have borrowed liberally from our Constitution. None has adopted the elector system. It is too strange. It is too anti-democratic. We should change it to a popular vote election, with a run-off between the top two finishers if no candidate wins more than 50 percent.
Fix The Senate? - We are reminded on a regular basis that the Senate slows everything down. Its arcane rules allow the minority to obstruct legislation in a variety of ways; sometimes a single senator can do so. This is not entirely inconsistent with the intent of the Framers. They wanted the Senate to act as a brake on the passions of the day that would dominate in the more democratic (small "d") House of Representatives.
The notion of a more deliberative, careful legislative body is a good one. But the Senate needs to be able to do something. I am intrigued by a constitutional amendment that neither the House nor the Senate may adopt a rule requiring a supermajority vote (more than a simple majority).
Term limits - Proposed amendments would eliminate the limit on presidential terms (two four-year terms) or would impose term limits on congressmen and senators.
Term limits puzzle me. We have term limits. They are called free elections and they happen at regular intervals. If the voters don't like a representative, senator, or president, they can vote that person out. If they keep returning incumbents to office, what is wrong with that? States that have adopted term limits have found that legislators often leave office just when they are figuring out their jobs.
Balanced Budget Amendments - To rein in the seemingly inexorable growth of the federal deficit, several proposals would impose structural limits on the budget process. Measures include requiring a three-fifths majority in each House of Congress for raising the debt ceiling or exceeding a budget, requiring a roll call vote for any increase in taxes, requiring that a president's budget not include a deficit (except in wartime), and giving the president the line-item veto.
I sympathize with these proposals, some of which have been around for decades. Congress has lost the ability to control deficits. The challenge is finding a structural mechanism that actually works and does not mess up anything else. It's wonky stuff.
The line-item veto seems like a sensible step, as does a requirement that debt ceiling and budget legislation be approved by roll call votes. Accountability cannot be bad.
Defining Marriage as between a Man and a Woman, Death Penalty for Child Rape, Guarantee of Quality Public Education - I lump these together because they involve social issues rather than questions of government structure. These sorts of provisions do not belong in the Constitution. The one time we put social policy in the Constitution was the prohibition of alcoholic beverages, and it led to such unrest and such a massive increase in lawlessness that it was repealed after only thirteen years.
Voluntary School Prayer, Flag Desecration, Campaign Contributions by Corporations and Unions - Although these also involve social issues, they arise as efforts to reverse Supreme Court interpretations of the First Amendment. Because there is no other way to change the rulings in those cases, the amendment process is a proper avenue for pressing these questions. I would prefer to seek legislative approaches to work around Supreme Court precedent, however, and not saddle the Constitution with single-issue provisions.
One recent proposal has not yet been proposed in Congress, but is on fire in the blogosphere: "Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Members of the United States Senate and to Members of the United States House of Representatives."
This sounds like a fine idea, though not particularly essential to the future of the Republic. It is based, however, on a number of erroneous beliefs that Congress has carved itself out of various legal obligations (paying Social Security, liability for discrimination, and so on). Snopes.com does a pretty good job debunking this one.
What would you change in the Constitution?