The last constitutional convention was in 1787. Although the Constitution is a very visionary document, it is impossible for anyone to predict and guard against all possible threats to our democracy. The Trump era has exposed many unprotected matters related to the powers of the executive branch, as well as how a president is elected.
Although we often hear people say there are three co-equal branches of the federal government, the framers of the Constitution intended for the legislative branch to be the dominant branch, as its representatives are elected directly by the people, even though "the people" in 1787 did not include poor white males, white women and people of color.
After 240 years and Donald Trump, is it time for a constitutional convention to clarify that the United States of America is a nation of laws and not of men, that those laws are equally applied to all people and that no one, including the president, is above those laws?
We the Living
Perhaps the first person to propose a Second Constitutional Convention, albeit implicitly, was Thomas Jefferson, who was overseas in France during the first convention. In a 1789 letter to James Madison, Jefferson wrestled with the question of whether one generation can legislate for future generations. After conducting some calculations, he concluded that no law can be binding after 19 years. “No society can make a perpetual constitution, or even a perpetual law,” Jefferson wrote. “The earth belongs to the living and not to the dead.” It is quite remarkable that at its core the structure of American government has not changed in the two centuries since Jefferson declared that “the earth belongs to the living.” The United States is still a democratic republic with three branches of government, a bicameral legislature, and a presidential veto, but we are starting to see the walls of this old house begin to crack.
To change the basic framework of the constitution would be immensely difficult. Amendments require the approval of two-thirds of each house of Congress and three-fourths of the states. In other words, change by majority rule is hard. As Jefferson predicted, “The people cannot assemble themselves; their representation is unequal and vicious.” Without a Second Constitutional Convention, we are stuck with this form of government for the foreseeable future. The question is, is this form a good one?
An Imperfect Union
For many who have studied the Constitution and American government at length, the answer to that question is no. “I started out as what I would call a friendly or academic critic of the Constitution,” University of Texas Law School professor Sanford V. Levinson told the HPR. “But sometime in the last five or 10 years, I’ve shifted from being a relative moderate critic to really believing that the Constitution is taking us over a cliff, that it is a clear and present danger to the American public, and that it is really a disgrace that we are not having a national conversation about what a constitutional convention might actually do.” Levinson is one of the most prominent legal scholars to call for a Second Constitutional Convention, having first endorsed the idea in his 2006 book Our Undemocratic Constitution. Since then, the proposition of a convention has been backed by an awkward cluster of thinkers across the ideological spectrum, including Harvard Law professor Lawrence Lessig on the left and the billionaire Koch brothers on the right.
To criticize the U.S. Constitution is usually considered an offense to patriotism. The Founding Fathers have been revered into immortality, and the Declaration of Independence and the Constitution are among the most venerated texts of that era. When Supreme Court Justice Ruth Bader Ginsburg told an Egyptian reporter, “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012,” she was unsurprisingly attacked for her comments. And yet Ginsburg’s point deserves merit. In the two centuries since the Constitution was written, there have undoubtedly been advancements in constitutional design, just as there have been in science, technology, medicine, and every other field. Empirical evidence vindicates Ginsburg’s comment—a 2012 study found that other countries have become increasingly unlikely to model their constitutions after America’s.
Intolerance of constitutional criticism often reflects a lack of understanding of what exactly the Constitution’s critics believe is wrong with the document. When thinkers like Levinson and Ginsburg find fault with the Constitution, it is not for the reasons that most Americans might expect. It is certainly alarming that the rights guaranteed by the Constitution originally excluded poor whites, women, and people of color, but these defects do not explain America’s structural breakdown today. The post-Civil War Reconstruction Amendments and the Supreme Court have expanded the rights of those whom the framers originally excluded. Instead, the greatest flaws of the Constitution lie in the form of government it created. “What is taking us over a cliff right now is not the Bill of Rights or the 14th Amendment,” Levinson said. “It’s structural provisions.” In Levinson’s view, “we could have perfect rights provisions, and we could still have a dangerously dysfunctional Congress, and we could still have a sociopath in the White House.”
Although we often think of the Constitution as embodying timeless principles, it is very much a document steeped in its time. As Levinson writes in his book Framed, the two great compromises of the Constitutional Convention were the product of arguments about political representation and slavery, and the stakes of these debates were enormous—if one side wasn’t happy, they could walk, and the tenuous Union would dissolve. Thus, the convention created a government that answered the peculiar challenges of the post-revolutionary era, but one not based on the best theories of constitutional design. Then, to add insult the injury, the framers created a highly demanding amendment process, making the Constitution particularly difficult to change.
A perfect illustration of this constitutional defect is the archaic Electoral College. According to Levinson, the electoral system was predicated on the understanding that slave states would receive a numeric boost as a result of the Three-Fifths Compromise, and was created on the assumption that American politics would have no political parties. Since 1787, slavery has been abolished and politics have come to be dominated by a two-party system, and yet the Electoral College is still the law of the land. The consequence has been the designation of just a few states as “swing states,” which dominate the campaign season and decide the election. Voters in other states are left as cogs in a machine, which may partially explain why the United States has voter turnout rates below 60 percent, lower than nearly all other developed countries. And yet this anachronistic system has concrete and enormous consequences: two of the last five presidential elections have handed the presidency to a candidate who lost the popular vote, with Trump having lost the popular vote by 3 million votes.