Symposium | The Democracy Constitution

Problems That Have Festered Too Long…

By Stephen M. Griffin

Tagged ConstitutionDemocracy Constitution

Anyone with a stake in the future of American constitutionalism should be intrigued, indeed fascinated, by the successful outcome of Democracy’s “Rewrite the Constitution” project. Having contributed as a member of the Committee of Detail, I’m personally pleased by our collective work product. Yet given that it could be seen quite easily as the epitome of a purely “academic” exercise, why should that be?

At an initial level, this project suggested several things I’ve long suspected about what would happen if there was a serious collective effort, by scholars or anyone else, at rethinking the U.S. Constitution from the ground up. First, I believed any new draft would be longer, at least longer than the original 1787 Constitution. The length of our document reflects the practical reality of both the accumulated experience with the Constitution and the many new problems of governance that have arisen since 1787. Additionally, I thought such a project would reveal that there is a latent consensus among many constitutional scholars of varied political persuasions that the Constitution should be altered in any number of respects, in matters both small and large. A minor example is suggested by our project and the National Constitution Center’s recent “Progressive” and “Conservative” drafts. They all reject the “natural born citizen” requirement to become President. A much more significant example is the consensus that it is well past time to rid ourselves of superannuated institutions like the Electoral College and elect the President on a national basis.

All quite interesting, but what about the content of our new constitution? Our project demonstrates the depth of creativity in the scholarly community as we raise and address various knotty problems that have festered for too long, especially as Americans have moved away from using amendments to update the Constitution on a regular basis. One is of course the treatment of indigenous peoples, and the new constitution is innovative in advocating the creation of a Council of Indigenous Nations. Another example is the extensive reworking of the set of guaranteed rights. This effort at redefining rights includes an especially acute effort at providing meaningful workers’ rights, along with additional measures and powers to permanently combat social inequality. It also includes a substantially rethought set of rights pertaining to criminal procedure and policing.

Additional aspects of interest result from the careful consideration of examples provided by constitutional developments in the American states and other countries subsequent to the adoption of the Constitution and important amendments. So, for example, a number of provisions are based on staggered legislative approvals by majority rule over several elections rather than sole reliance on supermajority voting requirements. Indeed, supermajority rules are explicitly disfavored in the new constitution, although allowed in certain instances. That includes the filibuster of course. Further, direct democracy is allowed into the constitutional design in the form of referenda to increase the legitimacy of constitutional processes.

As far as restructuring the branches of government, the new constitution centers on a revived Congress centered on a newly empowered House of  Representatives designed to better represent what James Madison called “the great body of the people of the United States.” The enumerated powers doctrine is set aside in the name of democratic public authority. That doctrine has served more often to facilitate judicial meddling than to improve the lives of Americans. The overall effect of the redesigned constitution is to take the presidency and the judiciary down several pegs. This could be regarded as a welcome return to the original plan of the eighteenth-century Framers were it not for the widely shared progressive insight that it would be quite difficult at this point to return in any meaningful sense to their plan. Political parties, expanded voting rights, and the demonstrated need for bureaucratic expertise plugged into the authority provided by a better representative system all make it impossible to return in a literal sense to the Framers’ design.

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Stephen M. Griffin is the W.R. Irby Chair and Rutledge C. Clement, Jr. Professor in Constitutional Law at Tulane University Law School.

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