The American people regard the US Constitution as a sacred document—even though Jefferson specifically asked us not to—and historically we have been very reluctant to tamper with it. Too bad, because it is badly in need of fundamental revision. Our Constitutional order has broken down. After years of thinking about this, I offer the following amendments.
The Electoral College must now go. Whoever wins the popular vote should be President. The Electoral College was created in 1787 to take the actual election of the President out of the hands of the people. It did just that in 2016. Hillary Clinton won the popular vote by a majority of three million, but the byzantine workings of the Electoral College made Donald Trump President instead. (I’m not contesting his election). What if she had won the popular vote by ten million votes? What about 20 million? The American people are soon going to tire of this fossil of anti-democratic anxiety entailed on us by the Founding Fathers. In 1913 the Constitution was amended to permit direct election of Senators. They were previously chosen by state legislatures. It’s time to amend the Constitution to permit direct election of Presidents.
It’s also time to revisit the Great Compromise that gave us proportional representation in the House of Representatives and identical representation in the Senate. California’s population has now reached 40 million. Wyoming has 577,737 people. And yet they both get two US Senators. How can that be fair or democratic? California has 70 times more population than Wyoming. If you add up the populations of the ten least-populated states, you get 9.3 million people. Those ten states get twenty US Senators, and yet their total population is only a quarter of the population of California, which gets two. Why should my beloved North Dakota, with 760,000 people, have the same number of senators as New York’s 20 million people, or Texas’s 28 million? It’s not fair, but more importantly it does not make for good government.
A handful of small and modest states that happen to encircle a small fraction of the 330 million people of the United States can hold up business in the Senate, and therefore hold up the business of the most important country on earth. It has paralyzed us.
There would be plenty of ways to fix this. How about this. Every state gets at least one Senator, but the most populous states—where the people of America actually live—get more. So, North Dakota, Wyoming, Alaska, and Vermont get one Senator, all the way up to Kentucky, with its population of 4.4 million. That accounts for the 25 least populated states. The top ten states, states that meet the threshold of 10 million citizens, get 4 Senators each: That’s California at 40,000,000 people, down to Michigan at just over 10 million. That takes us to 65. The next five, New Jersey, Virginia, Washington, Arizona, and Massachusetts get 3 Senators each. That takes us up to 80. The remaining ten states—Tennessee, Indiana, Missouri, Maryland, Wisconsin, Colorado, Minnesota, South Carolina, Alabama, and Louisiana--get two each. Voila.
This would almost immediately change the destiny of the United States.
It’s going to be expensive but we need to move to public financing of all national elections, and an outright ban on Political Action Committees and their ilk, and all mechanisms and maneuvers by which powerful individuals and giant corporations control American policy. We should begin by overturning the Supreme Court’s appalling 2010 Citizens United decision that opened up the sluice gates to unlimited money interference in American elections. Each presidential candidate should get an identical X million dollars to spend, period, and any attempts to violate that ceiling should be met by mandatory jail terms for the top campaign staff. A series of three to ten presidential debates would be publicly funded and broadcast by every news entity. Political ads would simply be banned altogether. This would revolutionize our elections. People would wake up and listen carefully to the debates.
Life tenure in our judicial system would be okay if each side did not attempt to pack the courts with young ideologues. We need to create a nonpartisan vetting commission to provide the President a slate of ten or twenty of the best qualified jurists in the United States—distinguished for their learning, judicial temperament, character, administrative mastery, non-partisanship, and independence of thought. There would be an emphasis on diversity: young and old, male and female, Jew and gentile and Muslim, black, white, Asian, Hispanic, Native American. When an opening occurs on the Supreme Court the President chooses from the confines of that list. Meanwhile the farce of the Senate Confirmation procedure must be reformed. At the moment Senators ask questions that a nominee should not be expected to answer, and Presidents now choose nominees who have not left a paper trail of scholarly articles, op-ed pieces, or public speeches that might come back to haunt them in the Senate Hearings. Both parties now have litmus tests, though they deny it. Judicial nomination has become far more political than judicial. In fact, politics should have nothing to do with it. It’s unfair to the nominees and it does not create the kind of brilliantly unpredictable Supreme Court we should want in a free society. I believe we should eliminate life tenure altogether, and establish mandatory retirement, at every level of the US judicial system, after 20 years on the bench. No non-elected individual should serve for life in our republic.
The War Powers Doctrine needs to be re-examined. The Founders were clear that questions of war and taxes must begin in the House of Representatives because that is the branch closest to the will of the people. We need to make it impossible for any President to commit troops anywhere in the world without explicit Congressional approval, except when American citizens or troops are under attack and there is no opportunity to convene Congress before responding. We should create a permanent bipartisan Congressional War Powers Committee that must sign off when the President takes emergency measures even in an international crisis. The principle that the executive must not arrogate to himself the war powers of the Constitution must be strengthened in a way that provides both flexibility and a return to legislative primacy.
We need to pass a Constitutional Amendment requiring members of Congress, the staff of the executive branch, and all other federal operatives to be subject to every law they pass for the rest of us. There must be no exemptions for members of Congress. They must be 100% subject to every law they pass. Furthermore, their salaries should drop by $5000 per day for every day they shut down the American government, and their salaries should be docked $1000 per day for every day they have missed the annual self-imposed deadline to pass a Congressional budget.
The Presidential pardon power should be repealed. Even before it began to be seriously abused by men like Bill Clinton (remember the Marc Rich pardon?) it was a little fossil of monarchism that has no place in a society that says it honors laws not men.
The emoluments clause should be tightened and clarified, and no person should be administered the oath of office who has not released her or his tax returns for the last ten years, placed all of their financial holdings in blind trusts, and separated themselves entirely from any personal financial decisions for the four or eight years they are President.
The Constitution should follow the UN Universal Declaration of Human Rights (1948) and declare access to equal health care a right and not a privilege of the American people.
Well, this could go on and on. We can fix this broken system. There is nothing sacrosanct about the current Constitution of the United States. It was the work of practical idealists, who had torn up the old Articles of Confederation because they no longer enabled a great nation to move forward with its public business.
You may have different constitutional solutions in mind. Send us your thoughts.
Dr. Lindsay Chervinsky and Clay Jenkinson discuss the Fourteenth Amendment to the United States Constitution.