We asked five distinguished outsiders to read our constitution and comment on it. Here are their thoughts.
A Constitution That Keeps Pace With the Times
By Arturo Valenzuela, professor emeritus of Government and International Affairs at Georgetown University, co-author of The Breakdown of Democratic Regimes, and co-editor and author of The Failure of Presidential Democracy.
With the end of the Cold War, a wave of optimism emerged that authoritarian and totalitarian regimes would soon give way to democratic ones. United States foreign policy sought to encourage that trend as critical to the national interest. Unfortunately, that hope gave way in many new democracies as governments sought to curtail political and human rights, hoping to thwart the advent of alternative governments. That came close to happening in the United States.
Thomas Jefferson warned against frequent changes in laws and constitutions. Nevertheless, in words that are enshrined on the Jefferson Memorial, our third President also held that “laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change . . . institutions must advance also to keep pace with the times . . . [lest] civilized society to remain ever under the regimen of their barbarous ancestors.”
Key amendments to the Constitution, often after horrific and divisive struggles, enabled the country to largely keep pace with the times. And yet, we are once again at a critical and divisive juncture in our history, as the Constitution is invoked by some to pursue what can only be described as the tyranny of the minority. The United States of America is a confederation of semi-sovereign states where, on critical issues of national policy, a state with half a million people counts for the same as one with 40 million, where presidents can be elected by a minority of the citizenry, and state majorities can disenfranchise citizens by depriving them of fundamental political and human rights, contravening the notion that the United States is “one nation, under God, with liberty and justice for all.”
The draft constitution commissioned by Democracy is an essential document to ensure that government of the people, by the people, and for the people becomes a full reality. It binds the United States, individual states, and subdivisions to promote and respect fundamental human, political, social, and environmental rights, while providing particular guarantees to indigenous people; and it sets up a governing structure and procedures with a Congress and presidency that is representative of the will of the majority, while encouraging deliberation within and among the various branches and levels of government.
Of particular importance are the provisions that the President and Vice President be elected by a national popular vote using the ranked-choice voting method and the provision that would permit the states to establish multimember districts that would more faithfully reflect the will of the electorate than winner-take-all single member districts. The experience of other democracies suggests that such steps would not only strengthen democracy but would help diminish the sharp polarization in U.S. politics centered on a two-party system—encouraging coalition politics that can contribute to restoring the country’s missing “vital center.”
In seeking to keep pace with the times with a new constitution, the United States could, once again, be a trusted force in the effort to create a more peaceful world based on the once radical notion of popular sovereignty.
A Good Effort—But Is It Already Too Late?
By Toby Moffett, a former four-term member of Congress from Connecticut. He is currently Co-Chairman, Government Relations, Mercury Public Affairs.
My only close-up experience witnessing the rewriting of a country’s constitution came in 2010.
I was representing the President of Kenya. And I had become friends with the most prominent advocate of the rewrite, the country’s Supreme Court Chief Justice Willy Mutunga. A vote by Kenya’s citizens to ratify the new constitution would be held in early August. In the days and weeks leading up to that vote, there were dire predictions from inside and outside the country that the ballot question would provoke widespread violence and even deaths.
After all, it was just a few years earlier that thousands of Kenyans had died in turmoil following a national election. And there was a relatively recent precedent for failure. In 2005, a similar attempt to have citizens ratify a new constitution had failed badly.
Nevertheless, early on the day of the ratification vote, millions of Kenyans queued up at polling places. Some waited for many hours to cast their votes. The process was peaceful and powerful in terms of the obvious determination of the public to participate and to do so without death and destruction. That historic vote, that process took place in a country long beset by tribal animosities and divisions.
As I read through this version of a new constitution, I thought of Kenya. I also thought of the Egyptian diplomat who nearly a century ago looked out across the Middle East and said that, with the exception of his country, there were no other real countries in the vicinity, just “tribes with flags.”
I wondered if the United States has become just another group of tribes with flags, rather than a real country. And if there are only fierce and stubborn, and yes, even violent subgroups in our society, what difference does it really make if we rewrite our Constitution? Or how many times we try.
At the same time, this new draft constitution seeks to address maladies in our democracy around which there is a fairly substantial consensus on the need for change. The overrepresentation of rural areas in our Congress. The underrepresentation of citizens because of our failure to increase the number of representatives serving a fast-growing population. The shameful denial of voting rights by some states. The blatant gerrymandering where district lines are drawn according to the wants and whims of current officeholders. The outsized role of money in our campaigns. The capture of the land’s highest court through lifetime appointments.
So this exercise is interesting and relevant and refreshing. But the question still lingers: If we ever reached the point where our politicians were seriously debating a constitution along these lines, would our country use the occasion of a debate about a new constitution to move forward in the most democratic and just way? Or are we too far gone, too fractured, too ignorant, too tied to conspiracy theories and the hate they produce?
More than 70 million Americans cast their votes last November for a man who blatantly broke laws, undermined those he saw as “enemies,” belittled immigrants and poor people, and incited a mob to violence in “the Peoples’ House.” And, post-election, a solid majority of those supported the tyrant’s false claims that the election had been rigged or stolen. That quite recent and still-painful history hangs over us. It gives us pause about what’s possible to repair our republic.
Back to Kenya: A few years ago, I spent more than a month in Nairobi, working out of a law firm there. There were unmistakable signs of the good that had come from that ratification of the new constitution in 2010. So many young people had entered and politics, some as candidates, some as campaign staffers, others as career public servants. People seemed more interested in government and excited by their democracy than anything I had witnessed a decade earlier. The antagonism between the main tribes had clearly subsided.
Was it that rewrite of the constitution and its overwhelming ratification that had transformed the country and brought about a renewal of its democracy? Perhaps. And perhaps that can happen here. The national conversation around this new constitution might help bring our fractured nation to its best senses.
A Real Framework for Rights and Dignity
By Nan Aron & Daniel Goldberg. Nan Aron is the founder and president of Alliance for Justice (AFJ), a progressive advocacy organization working on justice issues. Daniel Goldberg is Legal Director of AFJ.
Ultraconservatives have long weaponized our courts and relied on strained, bad faith interpretations of our Constitution to prevent everyday Americans, through their elected officials, from collectively addressing their needs. From weakening the Reconstruction Amendments and gutting civil rights laws to leveling Lochner-era attacks on protections for workers and consumers, these forces have too often twisted our Constitution—designed to promote the “general welfare”—to weaken our democracy, limit civil rights, and impede social and economic justice.
These attacks have only increased in recent decades. Fifty years ago, Lewis Powell infamously argued that the “American economic system is under broad attack” and urged the business community to create a legal center and other entities that would promote the general interests of businesses in our nation’s courts. Since then, Republicans have confirmed hundreds of ultraconservative judges who, on the bench, have been laser-focused on warping the Constitution to protect the economic interests of the wealthy and powerful at the expense of everyone else. They have attacked vital social programs and protections for workers, consumers, and the environment. They have degraded protections for persons of color, women, LGBTQ Americans, immigrants, persons with disabilities, and Native Americans. And, in nearly 20 years’ worth of decisions, from Bush v. Gore to Shelby County v. Holder, Republican-appointed judges have thrust the Court into the middle of electoral politics in order to tilt the political playing field toward the Republican Party, despite Republicans’ lack of popular electoral support.
In fact, conservatives know they cannot achieve their unpopular policy objectives through the democratic process—one need only look at Republican failure to repeal the Affordable Care Act despite fully controlling Congress and the White House. Instead, they have filled the courts with ideologues who will simply use the courts to achieve Republican policy goals. An illustrative example is Judge Andrew Oldham, a former counsel to Texas Governor Greg Abbott who now sits on the Fifth Circuit and who as a lawyer argued that the entire Department of Labor was unconstitutional. He filed dozens of lawsuits with the goal, in his own words, of making labor, consumer, and environmental regulations “completely inoperable”—and now he is one of hundreds of ideological judges who, from the bench, continue working to do just that.
These attacks on our rights and freedoms show why the Democracy constitution is so critical, and so welcome. The preamble to the United States Constitution makes clear that we must have a government that can promote the “general welfare,” and the Democracy constitution makes clear that rather than a document that is used as a bludgeon to protect special interests and side with the powerful over the powerless, we can—and indeed hopefully will one day—have the constitution our Founders envisioned: a framework for government that protects human rights and dignity for all.
Conservatives’ twisted interpretation of the existing Constitution intentionally paralyzes government and hamstrings worker and consumer protections so that powerful corporate interests are left unchecked. Conversely, the Democracy constitution rightly recognizes and lives up to the ideal of a government that works for all people. It guarantees fair treatment and a decent standard of living for workers, a right to health care for all, and a right to breathe clean air and drink clean water. These basic yet incredibly important guarantees are cornerstones of liberty and represent the ideals of America. They are among the rights and protections that people across the country have fought for over the course of centuries. It is long past time to enshrine them into a lasting charter for government that is truly for the people, and not corporate interests.
Justice William Brennan said that “the Constitution will endure as a vital charter of human liberty as long as there are those with the courage to defend it, the vision to interpret it, and the fidelity to live by it.” The Democracy constitution has started an important conversation and debate about what kind of constitution our nation can aspire to have, and it should be commended.
What’s the Greater Risk— Tyranny or Torpor?
By Michael Waldman, President of the Brennan Center for Justice at NYU School of Law, and author of The Second Amendment and The Fight to Vote.
Back when the Framers were writing the real Constitution, there was much curiosity about what was going on behind those closed doors and nailed-shut windows in Philadelphia. It was a big reveal. A local newspaper in Philadelphia enthused, “We hear that the Convention propose to adjourn next week . . . The year 1776 is celebrated for a revolution in favor of Liberty. The year 1787 it is expected will be celebrated with equal joy, for a revolution in favor of government.” At its best, this thought-exercise conducted by Democracy would represent a “revolution in favor of democracy.” Yet like the Americans of 1787, I am of two minds about what would result from this. Am I a “federalist” or an “anti-federalist”—would I vote for this? Or better to keep what we’ve got, imperfect as it is? What’s the greater risk in government—tyranny or torpor? `
Three things stand out.
The first is hard to miss. This time, the Constitution includes a Bill of Rights, and right at the beginning, rather than added later at the end. It’s also a very different Bill of Rights, no longer a Ten Commandments style decalogue. This is a minutely detailed proposal for a more equal society, more like a Bernie Sanders party platform than a natural rights manifesto. This is less astounding than it appears. Newer constitutions in countries such as South Africa enumerate economic and social goals as rights. (Indeed, one of FDR’s last great speeches proposed an economic bill of rights to guarantee a social welfare state in the post-World War II period.)
But I find myself wondering, just as James Madison did when he resisted having a Bill of Rights in the first place, whether this is all just too much. These rights risk freezing progress in place. If this had been written 20 years ago, how would it have treated gender and LGBTQ issues? Others are so specific and unlikely that they would probably be ignored, such as a right to an income one quarter as great as the salary of a Member of Congress.
All of this would heap new responsibility onto the least democratically accountable officials: federal judges. That risks bogging down our politics even more than it is now in litigation and legalisms. (That’s not all new. Alexis De Tocqueville wrote in 1835, “There is almost no political question in the United States that does not sooner or later resolve itself into a judicial question.”)
And I can’t help but notice that one key right is not included, at least a right tens of millions of Americans recognize to be in the Constitution: the right to keep and bear arms (whether in a “well regulated militia” or otherwise).
Far more encouraging is the treatment of democracy as a central—and explicit—goal for the new constitution. This would be a marked improvement. The real-life Framers did not establish what any of us would recognize as a democracy. They came close to enshrining the then-prevalent rule that only white men who owned property could vote, only dropping the idea after Ben Franklin objected. The country has evolved toward democracy in fits and starts ever since. Five times, amendments protected the “right to vote,” for example. But for too much of the time, too many people tried to roll back democratic participation. We’re living through such a moment right now, of course.
So the notion of a constitutionally mandated National Election Commission is both exciting and unnerving. Such an independent body is actually common in many democracies. They call the winners of elections without provoking an insurrection or the Big Lie. More worrisome, though, is the idea that this commission would set all election law, replacing the role of Congress and the President. After Selma in 1965, Lyndon Johnson, responding to the moral calling of a mass movement and deftly applied pressure and protest, proposed the Voting Rights Act and pushed it to enactment. Would a stuffy electoral commission have responded the same way? I doubt it.
Again, the specificity of the constitutional provision risks freezing innovation. It mandates ranked-choice voting, for example. Why not proportional representation? Why not runoffs or top four finisher elections, as in Alaska?
There’s a third big new thing, though, that makes me uneasy. The famed system of checks and balances has often struck me as among the least defensible remnants of Madison’s initial vision. Power checking power, and so on. We know all the ways this has frustrated majority rule and needed action. Sure, it prevents tyranny, but hey, I would reason, it’s not as though the United States could elect a would-be Caesar, someone who would, say, try to overturn an election, foment an insurrection, ban Muslims, collude with Russia, and so on. As Madison warned during the Constitutional Convention, American voters might one day choose a man of “opulence and ambition” who would threaten the republic. Suddenly, checks and balances look pretty good.
This draft constitution errs in two directions, I think. It strips the Senate of much of a role, turning the House of Representatives into, basically, a House of Commons, and the Senate into a vestigial House of Lords. Representatives, for example, would now have the power to approve nominations. But it gives the President nearly untrammeled power to declare emergencies and suspend the laws for urgent national needs. It steps on the brake and the accelerator at the same time.
Maybe it’s the shock of the new. But seeing all this counterfactual law in one place makes me miss the real thing.
Constitutionalizing Indian Affairs
By Matthew Fletcher, Foundation Professor at Michigan State University
College of Law
Sam Deloria, the patriarch of twenty-first century federal Indian law, talks about what would happen if the Indians “won,” and all the colonizers decided to leave America and head back over the oceans. He jokes, not so facetiously, that Indian people would follow them to the shores as they left and yell, “Get back here and fulfill your trust responsibility.”
He’s right. Indian law is rife with contradiction. On one hand, Indian tribes insist on increased autonomy. On the other, Indian tribes demand more from the federal government.
Tribes are right, too. The United States’s dispossession of Indian lands, natural resources, governments, cultures, languages, religions, and even people (most horribly, children) are not losses than can be repaid.
Ever. But the federal government did make promises—in particular, the trust responsibility, originally known in the nineteenth century as the duty of protection.
The duty of protection is a creature of international customary law. Think of the Vatican as a protectorate of Italy and the Swiss. The duty of protection allows for a small sovereign to thrive under the umbrella of a larger sovereign. This is what tribes negotiated for in about 400 treaties with the United States throughout the first century of the American governance, primarily because it is what the United States offered in exchange for land and national alliance.
The duty of protection—and we don’t even call it that anymore, instead we cling to the metaphor of “trust”—is quite reasonable, if properly implemented. The duty of protection is a source of congressional authority to enact Indian affairs legislation. The duty of protection obligates the executive branch to literally “protect” tribal interests in land, culture, children, and so on.
Of course, the United States has never fulfilled either aspect of its duty of protection. Congress dramatically underfunds tribal governmental services. The Department of Justice has never conceded that the duty of protection is a “duty” at all, instead arguing that it’s a voluntary duty. The Supreme Court rarely enforces the duty of protection.
That all sounds terrible for tribal interests. Often, it is. But the structure of the Constitution is the way it is because of the duty of protection. The Commerce Clause delegates to Congress the power to regulate commerce with “Indian tribes.” That’s how the colonizers wanted to deal with Indian tribes. “Indians” are explicitly mentioned as “people” in the Constitution. It is true Indians were not considered part of the American policy, hence, “Indians not taxed,” but that language presupposes that Congress can enact legislation that applies to “Indians.”
There is ambiguity in that constitutional imperfection. Those who seek to do mischief in Indian affairs point first to the ambiguity. Those who seek to do good also point to the ambiguity.
The Democracy constitution project’s provisions on Indigenous Nations would eradicate much of that ambiguity. Introduced in the draft is explicit tribal consent for any federal act that would affect Indigenous Nations. Gone would be debates over whether Congress had the power to enact Indian affairs legislation. Gone would be the possibility of Congress abrogating tribal interests without tribal consent. No more threats to terminate tribes or treaty rights.
I worry, though, that the federal duty to guarantee law and order, education, health, and everything else tribes sought in exchange for large swaths of their homelands would be gone as well. Congress can act, so great. Must Congress act? Not under this draft. If I could change one thing with this constitution it would be to make the duty of protection enforceable, rather than nonexistent. I guess I’ll be that guy yelling, “Get back here and fulfill your trust responsibility!”