Stuck in the 1700s: It’s time to revisit the Constitution | Opinion
The Supreme Court’s recent decision in Louisiana v. Callais has gutted the remnants of the Voting Rights Act through the purported application of the Fourteenth and Fifteenth Amendments, but it is only the latest example of judicially interpreted constitutional rules threatening, rather than protecting, American democracy. The problem is a far larger decision and deserves a commensurate response.
It is time for America to reconsider its constitutional faith. As of July 4 this year, the American experiment will have endured for a quarter of a millennium. In 2037, our Constitution will also be 250 years old. The former should be celebrated. The latter should be viewed as a national embarrassment.
No country today should be ruled by constitutional designs from the 18th century. Before our Constitution reaches its semiquincentennial, we should transform it in the name of democracy.
Older Americans may find it difficult to accept that our Constitution is undemocratic. Many of them were, like me, raised in a culture of constitutional veneration. When I attended public schools in Kansas in the 1990s, shortly after the fall of the Soviet Union, we learned to see America’s Constitution as a model for the world. Popular books celebrating the Founding Fathers and the greatest generation sat beside heroic accounts of American economic and military supremacy.
In such a climate, it would have seemed blasphemous to criticize our Constitution as undemocratic. But it undeniably is.
No one designing a democratic constitution today would create our Constitution’s exceptionally high hurdles to amendment, our malapportioned Senate, our life-tenured Supreme Court, or our Electoral College. Indeed, some research suggests that presidential government leads to greater political instability than government by parliament. A more democratic alternative to our form of government exists and has proven itself for decades in countries around the world, from New Zealand to the Nordic states: parliamentary democracy with proportional representation.
Defenders of our Constitution might fear that such an arrangement would result in a “tyranny of the majority.” But it was in the United States, and not in a parliamentary democracy, that an army of masked paramilitary agents recently occupied several cities at the direction of the president, systematically stopped individuals based on their apparent ethnicity, and fatally shot citizens who were engaged in protest.
Bold federal legislation could go a long way toward reconstructing American democracy. As soon as a president and a bare majority of both houses of Congress are willing to engage in democratic reconstruction, they should reform the Supreme Court; expand the House; admit D.C. and Puerto Rico—with their voters’ consent—as states; and pass voting and campaign finance reforms.
But eventually our antiquated Constitution itself must be changed.
Legislation cannot fix the inherently undemocratic structure of the Senate, the Electoral College, or the amendment process. The least contestable and most legalistic path would be to call a constitutional convention under Article V of the current Constitution. Progressives have expressed fears regarding the shape that such a convention might take. But as the legal scholar David Pozen has argued, America’s many state constitutional conventions provide precedents for arriving at democratically legitimate convention procedures.
In fact, a valuable first step toward freeing ourselves from the undemocratic shackles of our Constitution would be to experiment broadly with constitutional change at the state level. Defenders of democracy should support state amendments and conventions to familiarize the public with constitutional change, as well as with unfamiliar but internationally established democratic institutions and procedures such as proportional representation, parliamentary government, and the use of randomly drawn citizens’ assemblies to propose laws.
If it is true, as the political scientist Jonathan Rodden has suggested, that proportional representation can reduce rural-urban polarization and lead to more democratically responsive social policies, these benefits should operate at the state level as well.
Younger Americans do not need to be told that there is a rot in our constitutional foundations. They have spent a significant part of their lives in a world where Donald Trump is the President of the United States. Once a constitution has facilitated the election and reelection of a corrupt authoritarian demagogue, a figure whose violent, erratic, bigoted words and acts will disgrace the Presidency as long as it exists, surely it is worth considering: should the Presidency continue to exist? Don’t we owe it to ourselves, and to the world, to try a different path?
Gregory Brazeal teaches criminal law at the University of South Dakota Law School and is a former Major in the Army Reserve. He has written on constitutional faith and the roots of rural authoritarianism.
The views expressed in this article are the writer’s own.
