Is it time to begin the process of thinking about a new U.S. Constitution? | Opinion

Is it time to begin the process of thinking about a new constitution for the United States? I raise this question in my new book, “No Democracy Lasts Forever: How the Constitution Threatens the United States.” I worry that our reverence for the constitution, and the understandable fears of the unknown, cause us to ignore the ways in which our governing document is contributing to the crisis now facing American democracy.

The constitution was written for a small nation of states in an agrarian society. It is a tribute to its brilliance that we still can be governed under it today, in a country of over 330 million people and in the technological world of the 21st Century. Much that is in the constitution, such as the basic structure of the government it created, makes great sense today. We continue to cherish and protect the liberties protected by the Bill of Rights and later amendments.

But other aspects of the constitution were problematic when adopted and have become serious threats to American democracy.

Electoral college’s inherent flaws

The Electoral College makes no sense as a way of choosing a president. It was not a problem in the 20th century, as it never was the case that the winner of the popular vote lost the Electoral College. But population shifts and partisan realignment have caused the loser in the popular vote to become president not once but twice this century, in 2000 and 2016. And it almost happened in 2004 and 2020.

Having the loser of the popular vote become president cannot be reconciled with the most basic notions of democracy.

As a compromise to get the constitution adopted, the framers allocated two senators to each state. In 1787, the most populous state (Virginia) had 12 times more people than the least populous state (Delaware). Now, the most populous state (California) has 68 times more people than the least populous state (Wyoming). This makes the senate ever more undemocratic.

In the last session of Congress, the 50 Democratic senators represented 42 million more people than the 50 Republican senators.

Supreme Court’s lifetime appointment

In 1787, when the constitution created life tenure for Supreme Court justices, the average life expectancy was 36 years. From 1787 until 1970, the average tenure of a Supreme Court justice was remarkably constant: 15 years. Since 1970, for those appointed and who have left the bench, the average tenure has been 27 years. Justice Clarence Thomas has already been a justice for 33 years and he is only 76 years old. He could easily serve another decade or more.

It is simply too much power in one person’s hands for too long a period of time.

Overhauling the constitution?

The problems have been compounded by other choices: The filibuster in the senate means that it takes 60 votes to pass any bill, other than budget legislation. Partisan gerrymandering has led states to have congressional delegations that aren’t at all representative of voters. And the Supreme Court has gutted the Voting Rights Act by striking down key provisions.

The answer to almost all of this would be to amend the constitution. Other than two senators per state, which Article V forbids being changed by amendment, everything else can be fixed via constitutional amendment. But another flaw in the constitution is that it is extremely difficult to amend: It takes a two-thirds vote of both houses of Congress and ratification by three-fourths of the states to amend the constitution.

If our government was working well, we could overlook all of this. But there is a widespread sense that American democracy is in serious trouble. The Pew Research Institute has been tracking public trust in government since 1958. In 1964, 77% of those surveyed expressed confidence in government; now, it is an abysmal 20%. In a poll in September of 2023, only 4% of those surveyed said the American political system “works well.”

Our country is more ideologically divided than at any time since Reconstruction.

Does it make sense to start thinking of a new Constitution now when there are such deep divisions? Perhaps not. But will there ever be a point when that is not the case? In 1787, when the constitution was adopted, there also were deep divisions. It was ratified in some states by only a handful of votes.

There is reason for fear that a new constitution could be much worse, and that one political side could capture the process. But the hope would be that those entrusted with drafting the new document would live up to their duties, as those in 1787 did, and they would know that anything they propose would have to be adopted by the country.

I’m not suggesting that such an effort at a new constitution will happen anytime soon. But it never will occur if we do not recognize the need for it and begin thinking about it.

This story was originally published August 22, 2024 at 5:00 AM with the headline "Is it time to begin the process of thinking about a new U.S. Constitution? | Opinion."