Ideas for a Twenty-first Century Constitutional Tune-up.

Ideas for a Twenty-first Century Constitutional Tune-up.

The creation of the U.S. Constitution was the collective work of brilliant minds living in an age when political science was the pinnacle of intellectual disciplines and the practice of the political arts among the most honorable of endeavors; it was the moonshot of its day.

But, it was not and is not perfect.  While it justly deserves to be admired, it would be a mistake to think of it as holly script. Indeed, the original document has been amended twenty-seven times. Some, like the Bill of Rights, addressed flaws perceived during the ratification process, while others have come in response to experience, changing conditions, or values.  As change in every respect only accelerates, it should be no surprise that further amendments may be in order.

The focus here is on concepts that would help restore function to our failing democracy.  The need for political reform is one area where consensus exists across the political spectrum. The problem will be getting the political establishment, in our current hyper-partisan, money-dominated political environment, to turn the necessary gears.  If the Republicans are sent into the political wilderness in 2020 to contemplate the disaster that has befallen their once venerable party and the nation, the moment could be ripe for such changes as proposed here.  (note: 12/30/2020, this, unfortunately, did not come to pass.)

Citizens United - Only money disagrees that we must reduce the role of money in politics.  Money is the principal toxin in our political body.  We must undo Citizens United and make way for publicly financed federal elections.

Electoral College - We must remove this inflamed vestigial organ from the Constitution.  The Presidency is too important to be decided by less than a majority vote, and the justification for the concept has passed while the independence of the electors, which might give it some meaning, has been removed.  

Attorney General Reform - The Attorney General, as the nation's chief law enforcement officer, must be an independent agent whose overriding loyalty is to the nation and the law.  It is unreasonable to expect the AG, appointed by and serving at the pleasure of the President, to provide objective legal oversight of the government. The independent counsel process has repeatedly proven unsatisfactory.  The very existence of the concept underlines the flaw in the current structure.

Most states, recognizing the need for independence in the AG, elect the position.  But at the national level this would make the position more, not less, political in nature, creating the risk of unhelpful competition and conflict between the AG and the administration with which the Justice Department generally should be working cooperatively.

The answer is to depoliticize the position by having the Supreme Court nominate the AG for confirmation by a two-thirds vote of the Senate.  Who better to select the head of the nation's justice department?  Requiring such consensus between and within the judicial and political branches would ensure the office is filled, as well as one might ever hope to, with a highly competent apolitical professional, placing law enforcement as firmly outside the political sphere of government as possible without creating a competing political agency.

Judicial Confirmation Reform - We need to depoliticize Judicial appointments to the extent possible.  There once was, actually still is, a consensus that a two-thirds vote in the Senate should be required to confirm judicial appointments to assure moderate consensus appointments to the bench.  The concept has succumbed to the general deterioration of the political ethic.  We should restore it in the constitution, along with a deadline of sixty days in which to vote on a judicial or justice department appointments, barring by-partisan consent to delay a vote for cause — failure to comply with the time limit resulting in automatic confirmation.  Finally, a nomination should not die at the end of a session of Congress or an administration.  Once made, unless withdrawn, a nomination must be taken up.

Legislative Process Reform - Leaders in both houses of Congress have adopted practices that place partisan interests above doing the nation's business, often by refusing to take up bills that expose the majority party's members to risky and difficult votes.  The constitution should mandate that any bill passed in one house must be considered in regular order in the other house.  

Removing the Debt Ceiling Charade - The nation's debt level being a product of previously passed budgets, voting on a debt ceiling is superfluous, misleading to the public, and contrary to the existing constitutional requirements that the nation honor its debts.  The practice has become a disruptive and damaging lever for political blackmail and brinksmanship.  Accordingly, the Constitution should expressly provide that Congress has no authority to limit the nation's debt other than through the budgetary process.

Electoral Reform - The currently dominant election process in which parties nominate candidates to compete in a general election is polarizing.  In too many places, one party is so dominant that the general election is rendered meaningless if there is a contested election at all.  The result is offices are often not filled by a majority of those represented but by a majority of the majority party.  Those whose views align with the minority party effectively have no meaningful vote or voice in who represents them. The result is to send extremists to Congress and facilitate the threat of being "primaried," which undermines compromise and accentuates the power of money in our politics.  The Constitution should mandate some form of Rank Choice voting for congressional and presidential elections.  Doing so would force candidates to appeal to the majority of all voters rather than just to the majority of the dominant party in their district or state.  In addition, it would tear down the current practical barrier to having more than two parties. 

Voting Rights - The Supreme Court has been sidestepping obvious manipulations of the electoral process, such as gerrymandering, which undermine the fidelity of our elections. We need to expressly provide a constitutional mandate that every citizen has the right to equal access and voice at the polls.

There it is, a list of items to tune up our democracy for the twenty-first century, restore compromise and civility to the political process, and drive consensus-building rather than division and polarization.

There is one more amendment called for by changing circumstances that I can't help but mention.  I bring it up here as an aside because it does not fit in the political reform portfolio.  But, not having heard of it elsewhere, I can't walk past a postscript mention.  We need to add the environment to the Bill of Rights. In this case, a right that belongs to future generations as well as the current ones.  The constitution should provide that the government has a duty to protect and preserve the nation's natural heritage resources and ensure a healthy and stable environment for future generations.  This idea is necessary as humanity is no longer limited to adapting to the environment.  We have the power to and are adapting it to us and must do so with due regard for those yet to come.