Rewriting the Constitution
By Zach Toillion

The US political system is based on reverence for the constitution. The document has become a secular religion. Seemingly, no one can question whether or not it was truly a flawed document. The Constitution is so revered that it is nearly holy, and it’s founding fathers who wrote it may as well be considered secular gods.

The truth is the document is seriously flawed. It’s inability to address slavery led to Civil War rather quickly, and the 3/5th’s compromise is obscenely immoral. It’s lack of economic guidance gave birth to a system that led to massive wealth inequality and crashes. The document created a political system, but made one where two parties inadequately represent ideological political diversity in America ( a “rule by mob James Madison was very worried about).

The Constitution is only 4500 words (about the length of this piece). The average state constitution has 26,000 despite a smaller bureaucracy. The supposed “strength” of the constitution is that it allows changes to it. In reality, this proves it’s a weak document for governing a country-it’s the equivalent of ending in an essay with blank spaces at the end and arguing that you should get an A because the things you forgot about during the main essay can be added on later.

The document is riddled with flaws. It didn’t even establish true judicial review (that was taken by sheer force of will be the early Supreme Court). There was hardly any funding mechanism for government spending in place, and the document was so vaguely worded we still argue about what it even meant, preferring to base our interpretation of it based on previous conclusions rather than the document itself (precedent). It might shock Americans to know that arguably some of the world’ most successful democracies don’t have a constitution, (Israel, Canada, New Zealand and the UK are just a few examples)

To believe in the constitution as the end-all for political discourse, one must believe that old knowledge is superior to that of the modern day. The Constitution and the Founding Fathers are deified. This is believed simply because that’s the way it always has been and relies on an appeal to ancient knowledge-the idea that because something is old it must be wiser. This is the same problem religion faces. A man who wasn’t a fan of either, Thomas Jefferson, had a lot to say on the topic.

Jefferson argued the document should expire every 19 to 20 years with each generation given the “solemn opportunity” to update it. Jefferson was so adamant about this that he argued revolution was justifiable for political changes. Jefferson’s thinking has been applied to state constitutions, which are occasionally re-written, or amended so significantly they become almost different documents.

The following is a look into changes that would make us Americans have a far more efficient system.

Universal Suffrage
The US Constitution started out disenfranchising most men, all women, and all ethnic minorities. Literally all non-state legislators were disenfranchised from electing Senators. Legal adults under the age of 21 were also deprived of suffrage. Rectifying this required not one, not two, but six separate amendments to the Constitution. The effort to expand coverage to create a true democracy started in 1811 through proposals to eliminate slavery. The last development in trying to get true universal suffrage was 1971, when the voting age was lowered to 18. Under the US constitution, it took 160 years to get the limited suffrage we have now.

The Constitution still fails in granting true universal suffrage. 6 million US citizens can’t vote because of Felon disenfranchisement. 4 million US citizens can’t vote in federal elections because they live in territories rather than states. Nearly 1 million who live in Washington DC can only vote for one federal office-President. All of these groups are being taxed without representation to show for it. They can have US law used against them, but have no elected officials to help craft those laws.

Similarly Nearly 11 million long term undocumented immigrants who would be offered a pathway to citizenship under plans authored by Bush, Obama and Rubio also can’t vote. 5 million 16–18 year olds can’t vote either. Both of these groups have jobs, pay taxes and can be tried as adults and sent to jail under laws written by Representatives they didn’t have the chance to elect. Just like the other group, they are taxed but receive no representation. This is the exact same case as the other groups. If suffrage was given to all 16–18 year olds and not just those who are taxpayers, the voting pool would expand by roughly 18 million.

Crunching the numbers, the US disenfranchises 40 million people who pay taxes and can be tried by laws they have no say in crafting through the electoral process. An additional 50 million voters are eligible to vote, but aren’t registered. All citizens should be automatically registered to vote when they reach required age or legal status. Because of an inept voting system, 90 million people are being denied their Democratic right to self determination-nearly one third of the entire country.

The Constitution mandates that elections are held the second Tuesday of every November for federal office. This makes no sense in the modern world. Tuesday is a day the vast majority of the country works, and putting it on such a day discourages civic participation. This day also is in Winter where it’s very cold in most regions of the country.

There’s a simple solution to all of this-make voting day a national holiday. Place the holiday in Spring or Summer like most European Countries do it, and place that holiday on a weekend.

The United States also needs a unified voting system rather than the patchwork county-by-county system it has now. Every county comes up with it’s own rules or is issued guidelines by state governments. This leads to differing ballots, confusion over procedure, and poorer counties getting faultier machines that haven’t been updated and are more likely to misread votes.

The case study for why the US needs a unified national voting system is 2000 Florida. In Florida, “butterfly ballots” appeared in some counties that had a confusing design involving arrows and check mark boxes. The problem was the second arrow didn’t point to the second listed candidate (Who at the time was Al Gore) and instead third party candidate Pat Buchanan. Pat Buchanan got his highest share of votes in the entire country in the area with the butterfly design. It likely cost Gore 10,000 votes, and there was no way to contest them because the ballots were filled out validly, even if the intent of the voter was to vote for Gore. Another Florida debacle was hanging chads. Old punch card ballots were used. Voters just punched a hole near the candidate they selected. The problem was that bits of paper would sometime still remain attached. This caused a huge headache because the election was so close any change in the way these votes were counted could swing the election, and the design choice was in a very Democratic county. Almost all nonpartisan analysis has found that if these issues were addressed, Gore would have won the state and the Presidency.

Our lack of a universal law erodes our faith in the system, and can create a massive injustice like the one that occurred in 2000. It’s also unfair that poor counties run the risk of having their votes counted less because we don’t have a unified system.

Voters should also be given a tax deduction of a set amount for doing a civic duty, just as members of a jury are. This would increase turnout.

Electoral Changes
An elected official should be approved of by the majority of the people voting in an election. If someone wins office with 42 percent of the vote, a pretty large majority of the country voted against them. It seems like common sense, yet this is a problem that plagues our politics at the highest level. History is replete with Presidents that got elected with most of the country against them. Richard Nixon received only 43 percent in 1968. Bill Clinton only received 43 percent in 1992. George W. Bush received 48 percent in 2000. President Trump received only 46 percent in 2016. With the exception of Bush due to 9/11, all of these Presidents saw their agenda stall immediately and their opposition made historic gains in their first midterms.

There is an easy solution to this, adapted by many European countries. The first round of voting is open to all parties-political 3rd party mainstays like the Greens, Socialists and Libertarians. If no candidate gets over 50 percent in that election, the top two vote getters face off again shortly thereafter. This would also make major party candidates more responsive to the issues raised by more minor party candidates. This type of system is done in statewide races in some Southern States for both primary and general elections and has been successful.

Another way to solve the problem is ranked choice voting. Voters order the candidates they most support as a 1st, 2nd or 3rd choice. Gradually the least popular candidates are eliminated and those voters 2nd choice gets the vote instead until a candidate reaches 50 percent. This would be a much cheaper option since it doesn’t require a second election and has already been implemented in Maine successfully. Under this system, people who didn’t like Clinton but hated Trump could vote for a third party candidate as their conscience, and then vote for Clinton as their compromise.

Abolish the electoral college
To quote a tweet from our current President, the electoral college is a disaster for Democracy. Since 1992, Democrats have won the popular vote in every Presidential election other than 2004. In a Representative society, that would mean we’d only have 4 years of a Republican President. Instead we’re set to have 12 years because the winner of the popular vote lost the election in 2000 and 2016.

The problem is for Democrats now, but Republicans are usually at a disadvantage in the electoral college. Since 1992, Democrats have had an edge in the electoral college 4 out of 7 times (without Perot in 1992, they would have likely had an edge in 5 of 7 elections). The EC advantage wasn’t an issue because President Clinton and Obama both had built a big enough lead in the popular vote for their elections so that it didn’t matter. Republicans are likely to find themselves in an even worse position in the electoral college well into the future. Democrats are retaining power in the rust belt states held by Trump, but are also beginning to outright win the House popular vote in states like Arizona and Florida. In Georgia and North Carolina, Democrats came within 1 percent. In Texas, Democrats came within 4 percent. Democrats are gaining about 6 points on Republicans per election cycle, meaning the GOP will have a significant problem in the electoral college starting as early as the 2024 election.

There is strong evidence that the gap between the popular vote and the electoral college will get only worse with time.

From 1980 to 2004, the electoral college only diverged from the popular vote by about 0.4%. It wasn’t an issue because there simply weren’t that many close elections during this time, with 2000 as the exception. From 2008 onwards, the electoral college/national popular vote split has quintupled to a rate of 2.0 percent divergence (and a record breaking 2.8 percent in 2016). In an era of increasingly close elections, this will prove to be a recurring problem.

The solution is simply to divide the vote proportionally by the percentage a candidate got in the state. This is how things are done in all Democratic primaries, and a large number of Republican primaries for delegates. It would allow for more states to get a say in the picking of a President, and third parties could finally have a chance to have an impact. Under such a system Ross Perot would have received over 100 electoral votes in 1992, and the issues his voters cared about arguably would have had to have been addressed by the eventual winner of the contest. The 1992, 1996, 2000 and 2016 elections would have all gone to run offs where candidates would need to reach out and address the concerns raised by third party candidates-something we see in Parliamentary systems the world over.

Abolish the Senate
The Senate is where legislation goes to die. Under both political parties, and even when the same party held both Houses, it has always been the US Senate that stalls important legislation or takes too long to pass it. It slows the entire system.

The 6 year Senate term excuses the Senator to be less responsive to constituents. They can take unpopular votes their voters would disapprove of early on and not pay the political price because of the passage of time. More worrying, it’s much easier to corruptly influence a subset of 100 people to get your agenda passed than a subset of 435.

The Senate is undemocratic and will only get more so with time. By 2040 30 percent of the population will have 70 percent of the Senators due to urbanization happening faster than ever. Already California and Wyoming have the same amount of power despite California having 34 times the population. This will get worse with time.

The Senate was designed for debate on issues. It was conceived of as a place where people could change each other’s minds. That is no longer true today. Nearly all votes are a test of party line unity, and if a Senator’s mind was changed on the Senate floor it would likely be seen as a detriment to their political career.

The Senate composition is very slow to change, only 1/3 of it’s seats are up for grabs every two years. This means if the country goes through a radical political shift, the Senate will by its very nature always be behind in terms of public sentiment.

One of the key arguments of Senate apologists is that there needs to be someone looking out for the interests of an entire state. Governors are generally better at that job, rendering the point moot.

The Senate isn’t needed for checks and balances to work. As long as the House of Representatives remains, it can take on the additional roles the Senate had in oversight of the judiciary. Both houses of Congress already provide oversight of the Executive branch.

To give small states a little more say (the one serious hurdle in abolishing the Senate), convert their two senate seats that would be lost into two additional House seats.

Changing Supreme Court Nominations
A bipartisan commission of experts should produce a list of names to give to the President, which is currently how the process works in 41 states. The President should then choose a Justice from that list. Then the Justice should be confirmed or denied by the House of Representatives on an up or down vote. Justice appointments should only last up to ten years, as is the case in 40 states. Judges must retire by the age of 75 or younger, as is the case in 32 states and territories. No President can be allowed to appoint more than 4 judges to a 9 person court. If a vacancy arises, the same independent panel will submit a candidate to Congress, skipping the President entirely.

Other fixes

  1. Allow for the recall of elected officials other than governors. If an elected official has squandered the public trust and those in power have done nothing to address it, the voters should be the final determinants if they so choose.
  2. Increase the amount of elected representatives. The EU has 854 legislators and councilmen. The state of New Hampshire has 400. The country China has 2980. In none of these cases did the number of legislators make things unnecessarily slow or costly, but the benefits are very positive. They allow for a government more responsive to the people. Constituents would find it much easier to get their views out to their represented officials. As of now, there’s only 1 official per 750,000 constituents. In some places it’s even worse-Montana gets one representative for it’s one million residents. When the first apportionment bill went into effect, there was one representative for every 35,000 people. Even as recently as 1910, there was one representative per 100,000.
    The United States should go back halfway to the representation of 1910 and have one representative per 400,00 or so people (equivalent to the population of places like Kansas City or Omaha).

A lot in the current Constitution is great and should remain. Separation of powers, checks and balances, enumerated powers, all of these ideas still remain the best in a government that seeks to represent its people and safeguard from corruption

Most constitutions last only about 7 years before being re-written, because times change. The founders wrote the document before the technological revolution, true global interdependence, concepts like socialism, high rates of higher education in the electorate, large permanent armies, and modern technology that could wipe out all life on earth. They wrote at a time where they feared the political factions that now are a cornerstone of US politics. It as written even before the creation of the model welfare state, widely seen as beginning in 1918 in Germany. The leading intellectual movement of the time was the enlightenment, since than 9 philosophical revolutions have taken place. Multinational institutions like NATO, WTO, IMF, the UN, and a series of trade agreements have whittled away at national sovereignty. The notion that the constitution should be re-written to keep up with modern society is not a new idea-Thomas Jefferson himself thought that the Constitution should be rewritten every w0 or so years. So far, we haven’t even amended it since the early 90’s, much less recite it for modern times.

The President closest to understanding a major change would need to be made was President Franklin Roosevelt. FDR’s Second Bill of Rights, pursued only weeks before his death also give us some hints as to what current law should be guaranteed on a constitutional level. FDR argued that all Americans had the right to fair housing opportunity, Medicare as a right for all, a minimum standard of education, social security insurance programs, and the freedom monopolies and oligopolies gaming the financial system. FDR also toyed with an idea that would guarantee either work or income through a universal basic income program or federal jobs guarantee.

While FDR’s second bill of rights is more radical, the original would be retained as the bedrock of a new constitution. Freedoms of religion, political thought and organization, property and press freedom would need to be maintained in unequivocal terms. Protections against executive overreach, self incrimination, a fair trial and legal representation as well. Double Jeopardy should be even more rigorously enforced, with constant retrials being cracked down on unless truly extenuating circumstances present themselves.

Meanwhile, the ban on cruel and unusual punishment would need to include language banning the death penalty as the US is among the only industrialized country on earth to do so, and only in a number of states. This rarity makes the death penalty unusual, and scientific studies showing the means of execution of be extremely cruel.

No branch of government must be allowed to give itself new powers that infringe on the powers of others. This has been a major problem in recent years as the last 3 Presidents have increasingly unilaterally declared their power to bomb countries without approval, begin construction. Meanwhile, the US Senate has passed the buck to the White House for treaty approval despite treaty ratification being 100 percent the purview of the Senate. Likewise, while the judiciary can rule on the constitutionality of law, it cannot actively make it. Unfortunately, it has continually in cases like Roe v. Wade where it set out a series of guidelines on what abortion would be considered law, effectively usurping the legislative branch.

America’s ability to get things done has ground to a screeching halt. No major legislation can get through under the current rules. Presidents elected on a popular mandate have been unable to push through his agenda without breakneck intransigence from the other side. Our participation rate is terrible compared to similar countries of s birth rates. Trust in institutions of all stripes is at an all time low, global distrust of the US is at an all time high, wealth inequality is worse than at any time during out history, our global military footprint is similar to that of the last days of the Roman Empire, politicians openly vote against the will of the people they represent, and money corrupts the system entirely. Automation threatens nearly everyone’s jobs, and global warming threatens nearly everyone’s health over time. Meanwhile, the US media seems to ignore almost all these issues to focus on issues that don’t matter.

The rules can’t afford not to be rewritten. The stakes are far too great to not at least think about enacting radical change. Rewriting the constitution may be the only way to break the fever.

Libertarian Socialist who writes about politics, economics, philosophy religion & history. Former Newspaper Columnist.

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