Constitutional reform can save us yet

A modest proposal for a budget system that works -- and a more perfectly representative union

Published October 12, 2013 12:00PM (EDT)

        (Shutterstock larry1235)
(Shutterstock larry1235)

This article originally appeared on The Globalist.

TheGlobalistIf anything, the chronic re-occurrence of the U.S. government’s failure to approve a budget as well as the repetitive quarrel over raising the country’s debt ceiling demonstrate one thing clearly: Constitutional reform is the priority in the United States. Without it, the U.S. will indeed become a failed state.

Such reform should not be difficult. At the U.S. state level there have been 230 constitutional conventions since the founding of the country, according to Sanford Levinson, a law professor at the University of Texas and author of Our Undemocratic Constitution. The State of New York is currently on its fifth constitution. If the 50 states can do it, why not the nation as a whole?

Other countries, too, have a record of frequently changing or adopting new versions of their constitutions. In contrast, the constitution of the United States of 1787 seems to enjoy a sacredness only matched by some religious books.

The last change to the U.S. Constitution, the 27th Amendment, was approved in 1992. Hard though it may be to believe, it dealt with the oh-so critical issue of increases in salary for members of the U.S. Congress not taking effect until the term following the increase.

How much more myopic can one get? Maybe the country should have saved its action-oriented powder for something more earthshaking.

The Constitution: dead or alive?

Nobody seems to remember that the U.S. Constitution was a highly controversial document as it was being drafted. The so-called Federalist Papers are living proof. And that was at a time when there were only 13 states in the union.

The fact that the U.S. Constitution has only been changed 27 times since 1787, which was almost 100 years before Thomas Edison turned on the lights, shows how stale and out-of-date a reference point it has become.

In other words, the rest of the living world has changed significantly. But, as Supreme Court Justice Antonin Scalia has been quoted as saying approvingly, the U.S. Constitution is “not a living document. It’s dead, dead, dead.”

Of course, Justice Scalia is not suggesting that the meaning of the Constitution is dead, but that it should be interpreted exactly as written by the Founding Fathers. He views them as omniscient, even though they had not seen a light bulb, a car, a plane, a space ship, a computer, a 3D printer or a female Supreme Court Justice, for that matter.

Scalia’s view of the Constitution, also dubbed strict constructionism suits his political purposes as a paleo-conservative. Consequently, he has no qualms with expanding the “right to bear arms” to semi-automatic weapons rather than limiting it to muskets existing at the times of the Founding Fathers.

And, naturally, Justice Scalia had no patience to read the entire Second Amendment which states: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Well, guess what? Just like we have don’t have slavery anymore, we also don’t have state militias.

Urgent need for constitutional reform

All this goes to say is: The United States urgently needs constitutional reform. What key changes would need to be made?

Starting with Scalia and his colleagues, the terms of justices to the Supreme Court should be limited to one term of about 10 years, enough to establish a record, without allowing individuals to create a “legacy” all the way to the graveyard. Of course, the nine Justices’ terms would be staggered so that no President would appoint more than two.

All elections in the country would be publicly funded to make sure the country is a true democracy and not a place where the legislative body is described as “the best Congress money can buy.” Thus, all direct or indirect campaign contributions would be explicitly prohibited.

Money, after all, is not free speech. It’s creating an acidic stench over the entire American body politic.

The non-democratic Electoral College would be eliminated, since it can lead – and has led – to the election of four Presidents without support from the majority of the American people (the last one, President George W. Bush in his first term).

How can it get more undemocratic?

All Senators should be elected every six years, with half being elected during the year of presidential elections and half three years thereafter. The Senate should be composed according to size of population in each state following every ten-year census.

According to the 2010 census, the smallest 25 states of the union account for 16.3% of the U.S. population. In contrast, they hold 50 of 100 seats in the Senate. More specifically, a Senator from Wyoming represents some 282,000 people, while a Senator from California represents 66 times as many or 18.7 million. It does not get more undemocratic than that.

All Members of the House should serve four-year terms. The current system leads to permanent campaigning with little substantive legislative work done. All Members of the House should be elected concurrently.

Every ten years, the district maps in each state should be drawn by a committee of regional representatives from the other 49 states. This would end gerrymandering.

A more perfectly representative union

In electing the House of Representatives, a system akin to that of Germany should be adopted. Americans should have a first and second vote. The first vote would be cast for the party voters prefer, while the second vote would be cast for the specific candidates running for office in each district.

Representation in the House should be based on the number of seats equivalent to each party’s share of votes received in the first vote, while – at the same time – all directly elected candidates would be guaranteed their seats in the House.

That system would make the U.S. a more representative democracy, while allowing for a candidate’s close relationship with his/her district to be rewarded. This will also most likely lead to a break-up of the antiquated two-party system.

The new constitution would also provide that there would be no discretion for either chamber to introduce special voting rules, such as the Senate’s filibuster. All votes would require a simple majority vote, except in such cases as the removal of the President and change of the constitution.

The legislative process should be streamlined by prohibiting all riders or earmarks on any bills. All bills should deal with the subject matter at hand. This way Congress would look at the benefit of a bill rather than being sidetracked by unrelated issues.

Budgeting that works – or else

Borrowing a little from the Israeli law, a budget should be required each year. Failing such approval, the budget of the first month following the previous budget should be equal to the first month of that previous budget.

Should Congress fail to approve a new budget by the fourth month, new elections for Members of the House of Representatives should be held by the sixth month of the ongoing budget year. This would surely get the attention of lawmakers.

A change of the new constitution should simply require two/thirds in both chambers of Congress with no additional involvement of the states.

Of course, it is unthinkable that the United States would do what its states have done 230 times, i.e., to call a constitutional convention to design a modern framework of governance. This would require two-thirds of the states to agree. Amending the current constitution is also nearly impossible as it demands a two-thirds majority in both chambers of Congress as well as the approval by 38 states.

In both instances, it is especially the deep-seated belief in American Exceptionalism that leads to inaction.

And so I guess in the United States, we are full steam ahead to a failed state, a slight problem for the most powerful nation on earth.

By Uwe Bott