It was about five years ago that I began thinking about a special issue of Democracy on the Constitution. I was frustrated with the Electoral College and the Senate even then, which led me to do some reading, for the first time since graduate school, on comparative political systems, and on why our system was constructed the way it was. I started thinking about ways to critique the existing Constitution in our pages. Then at some point an initriguing light bulb lit up in my brain: Why critique the existing Constitution? I should get some people to write a new one!
I discussed the idea with some friends in progressive circles, who were encouraging, and eventually ran the idea past a couple of foundations, which were discouraging. Constitutional reform, I was told, was “their” issue, meaning the right wing. And of course, that was and is the case. Going back a decade or so, an effort on the right led by Tom Coburn and Mark Levin has sought to assemble a new constitutional convention.
But I always thought that hardly meant that our side shouldn’t have a view on this matter. Indeed, to me, it’s all the more reason to have a position on the Constitution: If a debate over the Constitution looms in our future, as it surely does, our side had better have something to bring to the table. But, sensing a general lack of enthusiasm, I dropped the idea.
Then came 2016, and the second time in five presidential elections that a Republican took office while losing the popular vote. And greater awareness about the anti-democratic nature of the Senate. And about gerrymandering. And the federal courts. With each passing year, it became more and more apparent that our Constitution enabled a bunch of politicians who on issue after issue represented the will of about a third of the American public to thwart majority will.
Finally, I decided that the project needed to go forward. I contacted Sanford Levinson, the esteemed legal scholar and trenchant critic of the Constitution, and ran the idea by him: Let’s assemble a group of liberal scholars to write a new document. Sandy, really, put the group together, working with Caroline Frederickson, who was at the time the president of the American Constitution Society. It started working in late 2019; here, finally, is the result. It’s ambitious. It’s audacious. And it’s unapologetically progressive; let conservatives write their dream constitution, we said, while we write ours (grammatical note: Throughout this issue, upper-case “Constitution” refers to the existing document from 1787, and lower-case “constitution” refers to our effort).
Some of the topline changes:
- No more Electoral College; President chosen by popular vote.
- There is still a Senate, but it is stripped of almost all power except the power to delay—not kill; delay—legislation passed by the House. States no longer have two senators each, but between one and six, based on population.
- Members of the House will serve four-year terms; be elected from either single-member districts or multi-member districts; and be elected via ranked-choice voting.
- We add a third legislative chamber, the Council of Indigenous Nations, which will have a say in all matters affecting Native American tribal nations.
- Supreme Court justices are to serve 16-year terms, and limits are placed on the ability of the Supreme Court to invalidate laws passed by Congress. Additionally, our Court consists of eight members in an effort to force negotiation and compromise.
- Finally, this constitution opens with a Bill of Rights, which enumerates more specific rights to the people than the current Constitution does.
There’s more, but those are the big points. I hope you see what I mean by “audacious.”
This package contains the following elements: a group of introductory essays by some participants, led by Levinson, whose essay goes into more detail about the deliberations; a short collection of some of the emailed deliberations, just to give readers a flavor of some of the debates; the constitution itself; a list of recorded votes taken by the “delegates”; a few dissents from participants; a few responses from outsiders whom we asked to read the document and share their thoughts; and a list of participants, or “delegates.” I should note for transparency’s sake that there were a small number of people who asked that their names be left off, either because their participation just dropped off at some point or, in two cases, because of sensitivities regarding an actual or potential job change.
To those who did see this project through, we can’t thank them enough. Some of our country’s leading legal and constitutional scholars threw themselves into this project, and many of them told me how much they enjoyed it. Certainly, they produced a document that deserves to kick-start a serious discussion about constitutional reform. Let the debate begin.