It’s time for a constitutional convention

The republic can’t save itself, so our generation must rise to the task

It’s easy to feel like a lot of things are broken right now. A lot of things are. While 127,000 of our neighbors have died, the disease that killed them has become a party political football. We have, in the White House, a president who has consistently proven himself incapable of expressing empathy or of taking responsibility for leading the country. Black lives continue to be taken with a frequency and callousness that should sting every white person’s conscience. The outrage that black people (and their allies) feel is devalued and denied. A whole swathe of our compatriots are being gaslighted.

There is an obvious need for policing and criminal justice reform. It was urgent decades ago. It is now a matter of existential importance to our society. I don’t know the problem space well enough to have my own ideas on what needs to be done, but I stand ready to support moves to end systemic racism. One of the few things I remember from high school is the definition of ‘justice’ in Black’s Law Dictionary: “The constant and perpetual disposition of legal matters or disputes to render every m̶a̶n̶ ̶h̶i̶s̶ person their due.” We are far from a just society, even by this narrow definition. Extrajudicial punishment, and especially extrajudicial killing, is not just. Every occurrence chips away not only at the rule of law itself, but also at confidence in the social contract. The protests across the United States and around the world are evidence of that. The origin of the problem runs deep — to the earliest days of Anglophone settlement in North America — and the solutions will not be easy. Criminal justice reform is a necessary starting point, but people of conscience must brace ourselves to support a long period of reform if we are serious about, in the words of Black Lives, ending State-sanctioned violence, liberating Black people, and ending white supremacy forever.

We should all mourn the fact fighting racist injustice has become a partisan issue. The partisan politicization of the pandemic should, likewise, give us pause. Society-wide problems require society-wide solutions. Those will never be simple. They will always involve trade-offs between different interests. A political system that can’t contemplate compromise, let alone practice it consistently, is not fit for purpose.

This deep, constitutional problem has been on my mind for some time..

Alongside American exceptionalism, the eternal wisdom of the 1789 constitution is the most enduring article of faith in US political discourse. That is not to say that the right and left agree on what we should do with that wisdom. Those at the conservative end of the spectrum, people tend to advocate for application of the constitution strictly according to its text. There are nuances between textualism, originalism, and strict constructionism, but that’s the fractally nested nature of human subcultures at work.

At the opposite end of the political spectrum — what Americans call liberals but most of the world would call progressives — people are more likely to believe that we should be guided by the intent of those who drafted the constitution, so that it remains a living document that can adapt (bit-by-bit) as society changes over time. Given my firmly left-wing political beliefs and my long admiration for British constitution’s hodgepodge robustness and resilience (“the constitution is what happens”), it should surprise no one that I fall into this latter camp. But I hope not everyone who reads this thinks the same way that I do.

Disclaimer: This is not a “both sides do it” post, but neither is it an attempt to blame people whose politics I disagree with for the mess America is in right now. Rather, it is an attempt to articulate a path towards healing long-festering wounds in the American body politic and agreeing a new set of ground rules that can foster invigorating political debate and effective governance for the next two centuries. Nor do I think that I have all the answers. Indeed, I have more questions than answers. But I sincerely believe that we need a civilized debate about this, and so I’m adding my voice to that debate.

My first working thesis is this: political disagreement is a powerful good for society, but only if we all agree to play by a fair set of ground rules for hashing out those disagreements. That’s what the constitution is for: setting out how we do the political dance in a way that fosters vigorous debate so that, collectively, we might “establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”.

Things aren’t working out that way in the US, and they haven’t been for a while. It’s easy for Democrats to pretend this is a Republican problem. They point to President Trump’s manifest unfitness for office, or the abject failure of the impeachment process to hold him accountable. Or Mitch McConnell’s cynical (and self-admittedly unprincipled) move to deny Obama his last Supreme Court nominee. But, really, the erosion of constitutional norms has been a joint enterprise throughout the nation’s history. It was a Democratically-controlled senate that used the nuclear option to end nearly four decades of consensus on a 60-vote majority for approving judicial nominees and executive appointments. Presidents of both parties have resisted congressional oversight with increasing frequency over the past sixty years. Both parties have eagerly embraced the gerrymandering of voting districts when given the chance. We have all failed to grapple with the centuries of systemic racism on which our political and economic system rests.

As I said in the disclaimer, though, this isn’t a “both sides do it” essay. Since the foundation of the Moral Majority in 1979, and especially since the election of Bill Clinton in 1992, the GOP has been on a slippery slope towards a scorched earth politics in which holding on to power is the only criterion of success. That may sound both harsh and partisan, but only an honest diagnosis of the problem will allow us to contemplate solutions that will benefit the country as a whole.

For the record: I want a robust Republican party: one whose vision of governance and the role of the state and the common welfare differs from mine. I want them to win elections and set policies that I disagree with. Most importantly, I want that to happen in a healthy political system in which everyone behaves honorably and is willing to attribute good faith to those with whom they disagree.

Anyway, it’s probably too soon to say exactly why or even how the Republican party shifted away from its long-standing principles and towards a cynical effort to hold on to power at any institutional cost. (I’ve always agreed with Zhou Enlai’s apocryphal answer when asked about the influence of the French revolution, so I would say that). Here’s what we do know, though: since 1990,

• Democrats have won 16.1m more votes for House seats than Republicans.
• For the Senate, Democratic candidates have won 42.3m more votes.
• For presidential candidates Dems have won 28.9m more votes.

Twice in that period, the House has been controlled by the party that didn’t win the popular vote. Both times, Republicans benefited. The same is true of the presidency (Republican candidates twice took office without winning the popular vote). The Senate is lumpier since only a third of seats are up for grabs each cycle, but on 5 occasions there’s been a mismatch between popular vote and control of the chamber, and in four of those the Republicans benefited from that mismatch.

Now, it is absolutely fair to point out that some of these mismatches are there by design. The Senate was, after all, set up explicitly to protect smaller states from being permanent hostages to their more populous counterparts. And the drafters of the constitution created the electoral college precisely to insulate the presidency from election. That Republicans have benefited from these structures in recent decades is notable but not culpable. Protecting the interests of smaller states, though, is not the same as attempting to entrench rule by a minority party.

Faced with demographic changes that left its base insufficient to secure electoral majorities, the GOP opted against broadening its appeal by moving to the political middle ground; instead, it sought to exploit every potential systematic advantage it could. For all its complaints about judicial activism (and, more recently, the tinfoil hat conspiracy theories about a deep state), Republicans have set about systematically stacking both judicial benches and voting districts to favor their electoral chances. Since George H W Bush took office in 1989, Republicans have held the White House for half the time, but 56% of both Supreme Court and Circuit Court judges have been nominated by Republican presidents. And while both parties have used gerrymandering, Republicans made it central to their political strategy around the 2010 census. And the GOP has variously pursued, condoned, or turned a blind eye to suppression of voting by constituencies that tend to vote for Democrats…particularly black and brown people.

That leads me to my second working hypothesis: in a two-party system, entrenched rule by a party that consistently earns fewer votes will lose legitimacy in the eyes of the citizenry. This is particularly true when the costs of the system are disproportionately borne by states that consistently vote for the other party, as is the case in the US in recent decades. The Rockefeller Institute of Government report on balance of payments found that in the 4-year period ending with 2018, eleven states paid more into the Federal treasury than they received, effectively subsidizing the Federal government and the other states. Eight of those eleven states have consistently been “blue” since the turn of the century. Two, Nebraska & Colorado, are mixed. Only one, Utah, is consistently “red”.

I don’t want to attribute malice to Republicans for this state of affairs. Around the world, political parties will attempt to maximize their political power when given the chance. Small moves here and small moves there add up, though, and erode both constitutional norms and faith in the system. Last year Pew published data showing that “Americans think their distrust of the federal government and each other is a problem that gets in the way of solving issues.”

The last four years have given us plenty of examples of white people with grievances against the current system, but “the share of whites who show high levels of trust (27%) is twice as high as the share of blacks (13%) and Hispanics (12%).” When people stop believing that the social contract is just, they stop abiding by it.

We need systemic change. And that can only happen through changing the system itself. There are plenty of legislative reforms that could improve Americans’ lives and America itself, but without reforming the political system itself, we’ll remain a nation in crisis. We need constitutional reform: recommitting ourselves to the founding principles that are worth retaining, and reckoning with the legacy of racial and ethnic oppression that was written into our founding national document.

The mechanism by which the constitution has always been amended up to now — a two-thirds majority in each house of Congress ratified by three-quarters of states — is far too piecemeal an approach for the urgent reforms we need. The alternative is for two-thirds of states to ask Congress to set up a convention for proposing amendments, each of which would still need ratification by three-quarters of states before taking effect.

What should be on the agenda for the kind of fundamental constitutional reform that requires a convention? Conservatives have long had a wish list for such a convention, revolving mostly around limiting the competence and capacity of the federal government: things like term limits (sure, why not?) and a balanced budget (just think how long a depression we could enjoy off the back of the next pandemic if the federal government weren’t able to take on debt!). The tenacity of the convservative wish list has long made the political left wary of a convention, seeing more risk than benefit. But it’s time for us to acknowledge that the congressional amendment process is insufficient to our present needs. What are those needs? Here’s what I think the constitution ought to do, but currently fails to achieve (or in some cases even encourage):

1. ensuring that every citizen’s vote counts equally,
2. reducing the influence of money in the political process,
3. creating structural incentives for both moderation and compromise,
4. depoliticizing key constitutional processes,
5. ensuring that the inter-branch balance of powers is fit for purpose in the modern world, and
6. acknowledging the long shadow of injustice cast by slavery and displacement of native peoples.

Progressives should develop our own list of reforms that support these objectives, and we should campaign relentlessly to persuade people of all political persuasions that they will improve the civic life of the country. And then we should embrace calls for a constitutional convention. The questions we should ask of any constitutional reform are fairly simple: if this becomes a ground rule for how we do the political dance whose voices are amplified and whose are silenced? Does it, on balance, improve the fairness of the process? Does it create more incentives for cooperation than for intransigence? Does it help us live up to our national motto, E Pluribus Unum?

To support the needs enumerated above, I’ve got my own list of proposed amendments. Some of them appear twice, because they support more than one of the needs, but here goes:

1 — It needs to ensure that every citizen’s vote counts equally.

• End the electoral college, so that the president is elected by popular vote.
• Prohibit gerrymandering, and insist that if states draw electoral districts for federal elections, those districts are both created by nonpartisan commissions and justiceable.
• Include the major elements of the Voting Rights Act of 1965 in the constitution
• Move election day to a Friday in late spring or early Autumn, and make it a federal holiday.

2 — It needs to reduce the influence of money in the political process.

• End the Citizens United farce by declaring that corporations are not citizens, and money is not, in itself, speech.
• Reinforce the role of the senate as the deliberative chamber of the legislature: create a two-term limit for senators, with a lifetime ban on post-office lobbying.

3 — It needs to create structural incentives for both moderation and compromise.

• Reinforce the role of the senate as the deliberative chamber of the legislature (as in 2, above).
• Do away with primaries for federal elections, and replace them with a single transferable vote system.
• Constitutionally enshrine the 60% vote requirement for confirmation of federal judges, to protect the judicial branch from political interference and to encourage the nomination of competent and moderate judges.

4 — It needs to depoliticize key constitutional processes, or at least create the incentives to depoliticize them.

• Constitutionally enshrine the 60* vote requirement for federal judges (as above).
• Set out that impeachment proceedings for a president be carried out with secret ballots.

5— It needs to ensure that the inter-branch balance of powers is fit for purpose.

• Clearly articulate the purposes of and limits on executive privilege.
• Set out that impeachment proceedings for a president be carried out with secret ballots.
• More clearly define the scope and limits of the legislative branch’s oversight of the executive.
• Create, within the judicial branch, a system for expediently resolving disputes between the executive and legislative branches. (Last year when the UK Prime Minister dissolved parliament using one of the Crown’s reserve powers, the Supreme Court there heard the case within 3 weeks, and issued a decision in 7 days: quickly enough for faith in the constitution to be maintained. We should be able to do as much in the US, too)
• Address the gap in legislative branch oversight of the executive by altering the system of inspectors general. The rapid expansion of the executive branch during the 20th century has left the legislature incapable effectively fulfilling the oversight role accorded it by the constitution. One solution could be that, once appointed, inspectors general of executive departments could only be dismissed with the joint consent of both houses of Congress. Alternatively, inspectors general could be appointed by congressional committees and answerable to those committees.

6 — It needs to acknowledge the long shadows of injustice cast by slavery and displacement of native peoples.

• Include the major elements of the Voting Rights Act of 1965 in the constitution.
• Set out, explicitly, that neither state nor federal law will be used to perpetuate any racist purpose or systematic effect.

Are these reforms sufficient to solve our current crises? No, for two reasons. First, and most importantly, immediate harms (like the persistent extra-judicial killing of black people) require immediate solutions. Second, constitutional changes will need to be underpinned by a shift in mindset, in which the electorate demands that public servants respect both norms and institutions, and votes them out when they fail to do so. These two caveats are important, but I still argue that we need to lift our eyes to the generational horizon, and undertake the societal equivalent of the campsite rule: to leave the country in a better state than we found it.

Finally, I’ll admit believing that the work of building a more just society is never complete. The injustices of our collective past must be acknowledged, confronted, corrected. And even if we succeed, we will fail: generations of the future will see, in us, new failures and new injustices to which we are blind. And the march forward will continue. I would never describe myself as a patriot, but I am an American who is proud of the promise of my birth country, and keen to see it more fully realized. The words of Ani Difranco, as so often, ring in my ears:

I love my country
By which I mean
I am indebted joyfully
To all the people throughout its history
Who have fought the government to make right
Where so many cunning sons and daughters
Our foremothers and forefathers
Came singing through slaughter
Came through hell and high water
So that we could stand here
And behold breathlessly the sight
How a raging river of tears
Cut a grand canyon of light