Rewriting the Constitution

By Fairooz Adams, outreach director

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The Constitution of the United States of America is the oldest standing governing document of its kind in the world. It has served as a model for countless other national constitutions. Over the last two centuries, the U.S. Constitution has served the country well, proving to be a malleable document that has adapted to the changing nature of American government, society, and the constantly evolving demands imposed on the country. The document has withstood the Industrial Revolution, American Civil War, the Great Depression, both World Wars, the Cold War, and the rigors of the Information Age.

The Constitution’s endurance is partially a result of the fact that Americans have been willing to amend it – a total of twenty-seven times. Beyond the first ten that comprised the Bill of Rights, amendments have been passed to abolish slavery, grant citizenship and voting rights to greater numbers of Americans, allow the direct election of senators, and lower the voting age, amongst others. When the only constant is change, even a document as readily capable of undergoing reinterpretation will need to undergo amendments.

That is not to say that the underlying principles behind the nation’s founding ought to be changed. The founding principles of freedom and democracy, as lofty and nebulous as they may be, must remain the same. Such a point, as obvious as it may sound, ought to be emphasized repeatedly as support for liberal democracy declines.

Part of that decline is probably a consequence of decades of intense partisanship and obstructionism. Though the opposition has been asymmetric, there has been a serious erosion of trust in the American political system as made clear by the 2016 presidential election.

Traditionally the narrative goes something like this: hyper partisanship in American politics at present time is a historical fluke; that previously American politics was harmonious. Psychologist Jonathan Haidt disputed this – he argues that the lack of partisanship in the latter portion of the twentieth century was unique.  Haidt has pointed out that partisanship used to be very high in the end nineteenth century, and indeed throughout much of American history. He argued that this dissipated in post-World War II America as the conflict forged together a greater national unity. The building of social capital, interpersonal trust, and a strong sense of nationhood are requisite to building a political culture that is capable of bipartisanship. Haidt also cited other factors like the “purification of two parties,” the loss of “liberal Republicans and conservative Democrats” as well, and the proliferation of social media for the rise of modern partisanship.

What is to be done? The solutions I propose will likely never be enacted, but I propose them nonetheless because they are the best suited to solve the problem of hyper partisanship. Going forward, it is important to acknowledge that the era of bipartisan compromise of the twentieth century was a fluke. American politics has traditionally been polarized, but as Haidt points out, several factors came together to overcome those trends for a brief period in American history. Yet it is also important to remember that America can no longer afford for Congress to operate at a glacial pace. American prosperity hinges on its leadership of an increasingly interconnected world, and a nation with over 320 million people will have many challenges that ought to be finished sooner rather than in decades. Post-World War II America cannot be replicated and thus institutional changes must be pursued to circumvent the problem of gridlock.

One constitutional amendment often suggested by lay people and advocated by those unfamiliar with politics is to push for term limits. Norman Ornstein and Thomas Mann in It’s Even Worse Than It Looks argued vehemently against this. In short: while they may  satisfy a populist desire to do away with career politicians, term limits weaken the people's check on the abuse of power. The increase in partisanship is partially a consequence of the declining interpersonal relationship building between the two parties. Informal relationships such as these enable deal making and satisficing that permits bipartisan cooperation. Term limits which mandate a significant of any chamber be completely eliminated each cycle makes long term relationships impossible and worsens gridlock, as the authors of It’s Even Worse Than It Looks assert.

Institutional memory is also important. Members of Congress and their their staff must be competent on a wide range of issues in order to be able to work. One study, for example, has shown that term limits force legislators to be more dependent on lobbyists that are familiar with the policymaking process, and thus increasing their influence. Term limits also distort the incentives of the legislators to remain legislatively independent. Highly ambitious legislators, confronted with mandatory retirement, may find it prudent to curry favor with special interest to land lucrative jobs. Ornstein and Mann and others have pointed out that states and countries that have embraced term limits, the story is the same. Conditions worsen, gridlock is exacerbated, and the power of special interests increase.

Term limits are a terrible idea. Ornstein and Mann argue that American Constitutional government has essentially “collided” with the type of politics that are appropriate for parliamentary forms of government. In a parliamentary system, the legislature and the executive are fused, meaning that the majority party or a coalition of parties create the executive. It would be as if the House of Representatives voted for the president.

I have a series of proposals that avoids fusing the executive and the legislature, preserves the checks and balances that the separation of powers provides, and at the same time force cooperation between the executive and legislative branches. However, other changes ought to be made first.

America has benefited tremendously from immigration. The unfortunate fact is too much change too quickly can cause a nativist backlash, which is to the detriment of liberal democracy in the long run. As a result, America should limit immigration and assimilate those that are currently in the country. The United States ought to embrace a system more similar to that of Canada, where those entering are selected based on a series valuable skills. There ought to be a shift away from identity politics, and instead a shift toward a focus on our common national identity. Diversity is good, and yet Americans must always remember that they are Americans first before any other individual identity group.

Moving the official date of the general election to a weekend would also be prudent. Not all states allow early voting and voters should be able to do their civic duty without having to leave work. Beyond merely enabling Americans to be more civically engaged, perhaps there would be an added benefit that instead of only the most enthusiastic partisans voting, moderates might vote in larger numbers too and become a greater political force.

Reforming how primaries are conducted by the major parties is also necessary. Much has been said about incumbents who are fearful of being defeated in primaries and as a consequence pivot to extreme positions. This is so even though incumbents rarely lose primaries. Thus it is the imagined risk that shapes behavior, and that must be eliminated. For that reason, I recommend allowing candidates that win a party’s nomination for an open seat and then win that office to become the party’s permanent nominee for that position. For example, should a candidate run for a party’s nomination for the House of Representatives and then win the nomination and general election, that candidate cannot be primaried out. However, parties must hold an election one year prior to the general election. Drawing inspiration from the amendments process, if 67% of voters or more vote in favor of having the incumbent challenged, then that party must hold a primary election for that position. If that number remain below 67% then the incumbent will again become the nominee of his or her party. The purpose of this is to diminish incumbents’ fears and enable them to focus on governing.

The means of selecting the president could also be reformed. While the notion of the Electoral College is noble, it has been rendered impotent and does not serve one of its most  important purposes: to filter grossly unqualified candidates. At the same time, it sows distrust in the nation’s political system. An instant runoff voting system will be necessary to sidestep this issue. That would mean ballots that allow voters to rank their choices. If a voter’s first choice has received the lowest number of votes and no candidate has secured a majority, then the voter’s vote would be transferred to their second choice. Should the voter’s second choice be the next candidate to receive the lowest number of votes then that candidate’s votes will be transferred to each of that candidate’s voters’ next choices. The process is repeated until any candidate reaches a majority

An instant runoff system allow runoffs to be conducted without asking 140 or so million people to take hours out of their day and stand in long lines to vote multiple times. Such a system would also eliminate presidents being chosen without a majority of the vote, which is more common than one would think. Bill Clinton won a plurality but not a majority of the popular vote. George W. Bush in 2000 and Donald Trump in 2016 lost both the popular vote and a plurality of the vote. A clear popular vote mandate will bolster the legitimacy of an incoming president.

Beyond targeting presidential legitimacy and promoting the true democratic will of the people, Congress must be reformed as well. Instead of leaving districts to the House of Representatives to be drawn by partisan state legislatures, House districts at the federal level ought to be drawn by bipartisan commissions in order to eliminate gerrymandering and end the potential disenfranchisement of some voters. In order to foster greater relationship building, I propose extending the number of years representatives serve from two years to four. However, should they fail to pass an annual budget, there will be a snap election organized in one month’s time. That prospect of potential electoral defeat ought to be used to force cooperation and avoid delaying important legislative decisions.

As it stands, providing two senators per state regardless of population size diminishes the chamber’s status as a democratic institution. Instead of the current system where two senators come from each state, the upper house ought to be reformed into a proportional representation chamber. In proportional representation legislatures such as Israel, the system works as follows: parties create a list ranking their selections for a chamber. Voters vote for a party instead of a candidate. Should a party receive 43% of the vote, then the top 43% of the party’s list will be selected for the chamber. A party’s leadership determines where on a list a particular parliamentary candidate falls. This system is good for representing the true party preferences of a country as it does not weigh the votes in some states more than others. The system is also good for party loyalty.

I propose a similar system, with a twist.

Party chairs select up to one hundred candidates for the Senate. The percentage of the vote each party earns will determine the number of seats they will be receive in the chamber. However, instead of selection by the party leadership, the senators will be chosen by the president-elect after the election.  For example, if the Senate is to have forty-five Democrats and the president is a Republican, then that Republican president must select forty-five Democrats off a list of eligible candidates. The same is true for his or her own party. Thus unlike most parliamentary democracies in which a proportional representation legislator is loyal exclusively to a party, in this system the legislators in a party opposite the president will have bipartisan loyalties. Such an arrangement will favor those who can work in bipartisan environments, and so senators who are in the same party as the president will have an incentive to demonstrate their ability to work in a bipartisan environment so they may be selected for the list and by the president when the White House changes parties.

The senators would be in office for four years or eight years, depending on how long the president remains in the White House. Therefore senators have an incentive to cooperate with president, but also with their party’s leadership should they wish to be selected to be a part of a list for the next administration. In this system, legislation will still have to be approved by both the House of Representatives and the Senate.

I recognize that my proposals will probably remain pure fantasies. My proposals more than likely will not translate into real reforms, even though they are the best course of action. What they do is illustrate a series of changes to the Constitution to force bipartisan cooperation. They draw from existing systems of government and are modified to preserve the separation of powers, make one of the branches more democratic, and provide powerful incentives for the chambers to work with one another. A new constitutional arrangement of this sort would be a hybrid that draws the strength of a parliamentary system and adapts it to the current organization of American government. While such a theoretical exercise is ultimately fruitless, it is always interesting to wonder how the Constitution might have been written were it drafted today.