The Constitution's Father Knows Best
James Madison would want us to restore the power of Congress to make war.
Portrait of fourth U.S. President James Madison, in office 1809-17.
Courtesy of the National Archives/Newsmakers.
Over the next few weeks, some of Slate’s favorite legal eagles are proposing their favorite Constitutional amendments, in the service of our effort, with Me the People author Kevin Bleyer, to rewrite the founding document. Here are proposals about the right to trial by jury, protecting informational privacy, amending the Constitution by national referendum, electing the attorney general, and moving up the date of the presidential inauguration. Plus more from Linda Greenhouse on Supreme Court term limits.
James Madison, the primary father of the Constitution, did not believe that the work of the Framers should be permanent. Frequent constitutional revision would be “a salutary curb on the living generation from imposing unjust or unnecessary burdens on their successors,” he said.
Yet his view is a controversial one in the United States, where the Constitution is often treated as a sacrosanct or even holy document. After I wrote a 2007 book called A More Perfect Constitution: 23 Proposals To Revitalize Our Constitution and Make America a Fairer Country, I received an e-mail from a man named George, who said he was a Madison descendant from Virginia—and who wrote that he would take up arms, if necessary, to prevent any of my cockamamie ideas from ruining his ancestor’s Constitution.
I agree that the Constitution remains brilliant in its overall design and sound with respect to the Bill of Rights and the separation of powers. But where George and I part ways— amicably, I hope—is in my belief that it contains archaic provisions that inhibit constructive change in a 21st-century world unimaginable to the Founders. Here are five suggestions, laid out in detail in my book, for updates:
Restore the War Powers Balance (Article II, Section 2)
The Framers split authority on war-making between the president (commander in chief) and the Congress (declaring war). Does anyone seriously believe that they would have approved of the executive branch waging years-long wars without the explicit approval of the legislature? Yet the advantages accruing to any president (the unitary nature of the office, the swift action that only he can take in a hair-trigger world, his dominance of the TV press conference) have created an emperor as much as a president. To restore constitutional balance, we need a War Powers Amendment:
The president shall have the freedom of action to commit American troops for up to six months. Immediately after that period, both houses of Congress, by affirmative vote and without unlimited debate, must vote to extend any war. If one or both houses decline to vote for an extension, all troops must be withdrawn within a year of the vote. Congress must continue to vote on whether to continue the war once each year for as long as the war lasts.
Create a More Representative Senate (Article 1, Section 3)
Just 18 percent of the American population elects a majority of the United States Senate. This is because, even though gargantuan California has about 66 times the population of tiny Wyoming, both states get two U.S. senators. In the beginning of the American Republic, the population differential between the large and small states—and thus the imbalance of power—was far less. Let’s build a fairer Senate by granting the 10 states with the greatest population two additional senators each, and the next 15 most populated states one additional senator each. The allocation will be updated with each new census, like so:
The Senate of the United States shall be composed of two senators from each state, along with two additional senators each from the 10 most populated states, and one additional senator each from the 15 next most populated states, chosen by the legislature thereof, for six years; and each senator shall have one vote. The allocation of senators shall be determined by each decennial census.
Transform Presidential Elections (Article II.5 and Article II, Section 1)
Americans don’t have to be convinced that our presidential election system is broken, because they’ve seen it fall apart before their very eyes in elections past. On nominations, there is no constitutional guidance, because the document was written in the age before political parties came into being. As for the Electoral College, it is a product of the absence of broad-based democracy in the 1780s; only a handful could vote and a “stabilizing elite” controlled everything, including the election of a president. The nation needs a new Article II.5 that would set up a sensible system of rotating, regional primaries—with the nominating structure no longer subject to the selfish whims of a few states. Moreover, the Electoral College must be overhauled, with more-populated states receiving additional electors so that a candidate who loses the popular vote can no longer become president. Why not abolish it entirely? The state-based Electoral College isolates and simplifies recounts. Imagine how hopeless our predicament would be if a recount like the one in Florida in 2000 ever had to be conducted nationwide.
Presidential primaries: Presidential nominations shall be determined through a series of four regional primaries. A lottery shall be held on Jan. 1 of the election year to determine the order of the primaries, which will be held in the four months before the national party conventions.
Electoral College: States will be granted additional electors in Article II, Section 1, based on the above revisions to Article I, Section 3, granting larger states more senators.
Limited Supreme Court Terms (Article III)
Our judicial Mount Olympus needs a bit of downsizing. If the founders had foreseen the Supreme Court’s evolution—and the establishment of a tradition of decades-long judicial tenure—they might have limited court service in some way. The insularity of lifetime tenure encourages arrogance and overreach. Let’s replace it with this:
The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour for a non-renewable term of 18 years, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Universal National Service (Amendment XXVIII)
For many reasons, shared sacrifice is less widely embraced today than it was when President John F. Kennedy memorably said in his 1960 inaugural address: "Ask not what your country can do for you; ask what you can do for your country." We could change this, with an amendment requiring all able-bodied young Americans to devote at least two years of their lives to the service of their nation. The charge must be broad, and the civilian and military options must be many, to accommodate the varied talents of the population and the diverse dictates of conscience. I offer Amendment XXVIII:
Between the ages of 18 to 26, every American who is able to shall perform two years of national service, civilian or military.
For most of my day, I focus on real politics, and I fully recognize that my proposed reforms will likely be enacted on the 12th of never. Still, we ignore the Constitution’s shortcomings at our peril. Circumstances that cannot now be predicted may eventually encourage the country to build a better constitutional mousetrap. In due course, we may take to heart the advice that Thomas Jefferson gave to his friend, Mr. Madison, in 1789: “No society can make a perpetual constitution …. The earth belongs always to the living generation.”
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