Throughout the Trump years, I have been constantly thinking about the different ways we could amend the Constitution to protect civil rights and liberties, expand voting rights, and limit the powers of the Presidency and make it more accountable. Although I have always held the Constitution and the ingenuity of the Framers in high esteem, it has become increasingly clear that as authoritarian forces in the American political system continue to rise in power and are here to stay, the United States might need significant institutional reforms and updates to preserve the Republic that we all hold dear.
Enumerated in the first article of the Constitution, Congress is the most powerful and important branch of government that governs directly by the consent of the governed. From my point of view, this branch would need the most significant overhaul to make it more democratic and accountable to the people.
The most significant change I would implement is making Congress more similar to a parliamentary system. This would mean proportional representation by state popular vote to reduce partisan gerrymandering and make room in the legislature for parties and legislators who would better represent the concerns of the governed. It would also mean ranked-choice voting and multi-member districts in which candidates win seats determined by the proportion of votes their party receives. These two concepts would not only encourage higher voter turnout since people could find easier candidates to support because more political views and socioeconomic backgrounds would be represented, but they make elected officials more accountable to everyday people in their constituents since they would no longer be effectively picking their voters via gerrymandering and break polarization. In fact, these concepts would reduce inequality and the underrepresentation of working people. Parties and candidates could even run on regional issues such as the Minnesota Democratic–Farmer–Labor Party, an affiliate of the Democratic Party that represents agrarian and rural labor interests in the Iron Range of Minnesota although a lot of its base seems to be conservative on other issues.
I would apply PR to the US Senate as well. In 1787, the Constitutional Convention struct the Great Compromise between the states with high population and low population to have the US Senate composed of equal representation of the states and the US House of Representatives composed proportional to the population of the states. In modern times, however, it is unconscionable that some members of the upper House represent less people than those with lower populations, yet have effectively the same power when it comes to reflecting the will of the constituents on issues such as treaties, judicial seats, and matters of legislative importance. If for some reason a President wins with a large share of votes, a Senate controlled by the opposing party and represents a minority of American voters could effectively block a popularly elected President from having their Cabinet and judicial nominees confirmed or major legislation passed.
The main potential drawback of having multiple parties in the legislature is deadlock between legislators and coalitions on matters of importance, or political instability and unproductivity like in Italy and Israel. However according to FairVote, most countries with some form of proportional representation like Germany and some Nordic nations have more stable governments and “have commonly passed legislation far more efficiently than our Congress does”. According to Harvard political scientist Pippa Norris, there is more broad consensus about “welfare policies addressing inequality, exclusion, and social justice, and this avoids the adversarial winner-take-all divisive politics”. The other potential drawback mentioned by George Mason University political scientist Jennifer Victor to the Washington Post is that “extreme anti-democratic forces” like Qanon people and Communists could win seats, but I would rebut that Qanon people would win fewer seats than in the evitability that the GOP absorbs people like Rep. Marjorie Taylor Greene into the mainstream as one of two parties, and that most Americans are not left enough for the Communist Party to pose a serious threat to the American political system.
Aside from those means in which we would elect legislators, I would also abolish the filibuster and reconciliation from Senate procedures, as well as the concept of the Majority Leader controlling the business of the chamber. Contrary to what Senators Sinema (D-AZ) and Manchin (D-WV) might think, the 60 vote threshold to pass legislation actually makes governance less efficient with dysfunction and does more harm to bipartisanship by holding up bills that would pass otherwise by, let’s say, a 56–44 majority with votes from both parties. Ezra Klain wrote an excellent explanation in the New York Times as to how budget reconciliation is a nightmare for policymaking that requires a multifaceted approach.
Another problem that needs to be addressed is the impeachment and removal process for federal officers. There’s a reason why the British abolished impeachment in the 1800s. The second Trump impeachment highlighted the problems with forcing Congress to function as a court for effectively indicting, convicting, and punishing federal officers for vague “High crimes and misdemeanours”. Before US Senators, who are meant to be impartial jurors, had a chance to do Q&A with House managers or hear their arguments, you have instances of these “jurors” talking to the media or posting on social media where they might be leaning on conviction or acquittal, and even meeting and advising defense lawyers during the recess of the trial. Judicial-like powers should be left to the courts rather than being prone to the influence of political interests of elected officials who might be threatened with political retribution if they vote against a federal officer in their party. Legislators are not the “enlightened statesmen” that the Framers like Hamilton had hoped, because some legislators will decide by their political party rather than what might be better for the country if it is politically expedient.
Instead, there should be a removal process with a vote of no confidence if legislators feel that a federal officer abused their position, did not fulfill their duties, or committed an egregious act. Once they’re removed, they can still be subject to federal prosecution in cases of corruption or other “High crimes and misdemeanours”. Or a truly nonpartisan Constitutional Court could even try and convict high-level federal officers.
If we had all of these reforms to look like Canada for example, elections might be quicker and less expensive, and governing might be better.
When it comes to the executive branch, one significant reform we could put in place is creating a Prime Minister or Chancellor along with a Presidency. The Prime Minister’s mandate to govern would rely on the majority of their party or forming coalitions in the lower house or both.
As I mentioned before, some might argue that a move like this would cause too much gridlock and that there would be jockeying for cabinet positions based on the power of the political parties rather than by merit. Gridlock happens more in Congress right now than most parliamentary democracies like Germany. I believe however that reliance on support in the legislature is a positive aspect. James Madison argued the opposite but Walter Bagehot had this to say in The English Constitution about the American system of government:
“If the persons who have to do the work are not the same as those who have to make laws, there will be a controversy between two sets of persons. The tax-imposers are sure to quarrel with tax-requirers. The executive is crippled by not getting the laws it needs, and the legislature is spoiled by having to act without responsibility; the executive becomes unfit for its name since it cannot execute what it decides on: the legislature is demoralized by liberty, by taking decisions of which others (and not itself) will suffer the effects.”
More accountability to the legislature and less divided government between the executive and legislation would be a good thing if the head of the executive comes from a party with a majority of the seats or leads a coalition to pass policies in which they have common ground. It is also easier to remove inept leaders who aren’t performing well or are behaving badly. Ideological extremists like Donald Trump that would make the government more likely to halt would be less likely to be leading the government. The Presidency could either be popularly elected, elected by the legislature, or elected by an institution like Germany’s Federal Convention. They could serve as a ceremonial head of state that would help form governments by appointing them upon receiving the confidence of Congress, call for elections, or step in during times of uncertainty with the premiership (especially if there is a crisis like the pandemic during political instability). By convention, the Presidency could be less prone to the influence of political influence (although it would still be somewhat inevitably political because the position is elected in some form or fashion).
A somewhat less drastic reform would be doing away with the Electoral College. I feel that there has been enough debate on this so I will save the space and defer to this article, and refer to the aforementioned recommendations regarding the legislature.
Other reforms of the Presidency could include Congress taking back the many powers it has delegated to a Presidency that is already too powerful (as Trump has made many people realize), and expand existing statutes and pass more statutes to ensure that the President is never above the law.
Since the installation of Justices Barrett, Kavanaugh, and Gorsuch, reform of the Supreme Court has been a popular discussion among Democrats in particular. I believe that the court system is broken. When individuals who are partisan and funded by dark money groups find themselves the center of political intrigue are appointed to an institution that is meant to be above the fray of political ideology and influence, that is a major problem.
According to Article III Section 1 of the Constitution, these Justices can remain in office for life “during good Behavior”. Unaccountable to the people except by impeachment and removal by the people’s elected representatives for “ misbehavior”, these individuals who are already partisan can make decisions to overturn actions by the elected branches of government and have this power for a lifetime. One solution to address this that might receive more mainstream support would Reps. Khanna, Beyer, and Kennedy’s proposal to establish 18-year term limits on Justices, meaning that each president would get two justice appointments per term. We could even depoliticize the process of appointments by having a lottery system in which 180+ federal appeals judges around the country would be randomly selected to serve as Associate Justices (which is how federal appellate courts already operate in most cases that come before them). A couple of professors also proposed a plan for Congress to require a supermajority (7–2 under the Court’s current number of Justices) in order to strike down federal laws. The most popular idea gaining steam are expanding the Court size from 9 to 15 to balance the Court, otherwise known by the negative connotation of “court-packing”. I would also prefer an independent panel that would recommend federal judicial picks to also minimize the partisan influence from entities like the Federalist Society.
Expanding Education, Civil Rights and Liberties
According to the 10th Amendment, powers not delegated to the federal government are reserved for the states. Although the federal government does exercise some influence over national education through funding through the interpretation of the Commerce Clause and Taxing and Spending Clause, the Constitution does not explicitly give Congress or the Presidency power over educational standards. Therefore, these standards are usually left up to state Departments of Education and local school boards to determine. Although there are benefits to state and local control over these standards according to the needs of that area and efficiency in coordination to oversee school districts, we need to have serious conversations over the quality of education and funding of schools (particularly in underserved and poor communities), the right to higher education, and elevating the standards to compete as a country with other nations and get rid of curriculums created by historical revisionists and science deniers. An amendment to the Constitution would empower Congress or the Presidency via the Department of Education or an independent federal commission to create such standards, and we could guarantee the right to quality education for all.
In addition to guaranteeing a right to quality education, we could finally pass the Equal Rights Amendment to guarantee legal rights to all regardless of sex (shout out to Heidi Schreck in her one-woman play What the Constitution Means To Me), legal rights for LGBTQ+ Americans, a voting rights act to abolish gerrymandering and voter suppression efforts, an amendment for adequate health care for all, and an amendment to overturn the disastrous Citizens’ United decision to clarify that corporations are not people with constitutional rights. The United Nation’s Universal Declaration of Human Rights and President Franklin D. Roosevelt’s Second Bill of Rights come to mind as well.
With these amendments, we could empower the economic well-being, and civil rights, and liberties of the people in this country.
I will digress that I don’t believe many of these are realistic to pass because to the institutional challenges that come with passing amendments to the Constitution. According to Article V of the Constitution, amending the document requires two-thirds of both Houses of Congress and ratification by a whopping two-thirds of state legislatures, or a constitutional convention called by two-thirds of state legislatures. Even if the latter was to happen for the first time since 1787, this would be dangerous because all options would be on the table in a runaway convention. Conservatives could push for amendments for an irresponsible balanced budget amendment as they have attempted before and continue to push. They could push for a “traditional marriage” protection amendment that would effectively prevent gay marriage from having equal protection of the law. Authoritarian-minded could even expand the powers of the Presidency, protect and strengthen the interests of the wealthy and powerful, and destroy the Bill of Rights as we know it.
This article is simply an insight on how a modernized Constitution might look to make our government better, restore faith in our institutions, and bolster the prosperity and rights of all citizens. Our Framers were geniuses in forming a new foundation of government that has served as a shining example for the rest of the world, but they too had their shortcomings and views on what it meant to have a government under which all persons are created equal. We need a robust and serious discussion on how we can create a more perfect Union with a government that is truly of the people, by the people, and for the people. Maybe someday the arc of progress will lead to some of these reforms in order to enhance our Republic, if we can keep it.