This piece is part of “America in the balance: the fight for our history and future,” a special series from MS NOW that explores where we are as a nation as we commemorate the 250th anniversary of the signing of the Declaration of Independence.
We rightly celebrate the Declaration of Independence, issued in July 1776, as a great moment in the global history of ideas. Here was a group of people laying out their case for self-government against a tyrannical foreign ruler and claiming the right to overthrow his rule. But perhaps an even more important moment had occurred six months earlier, on Jan. 5, 1776. That’s when New Hampshire promulgated the first American state constitution. Seven more states followed suit that year, articulating rights and institutional structures that informed the drafting of our national charter 11 years later. The United States’ enduring gift to the world is the idea of a national constitution, something that virtually every country now has.
The United States’ enduring gift to the world is the idea of a national constitution.
The U.S. Constitution is the world’s oldest currently in force, and some would say it’s showing its age. To be sure, the drafters created some enduring institutions that have proved highly influential: federalism, the Bill of Rights and the presidency, to name a few. But the document also has anomalies that make little sense. Knowing what we now know, who in their right mind would adopt the Electoral College, which has four times delivered the presidency to someone who lost the popular vote?
The same goes for the idea of lifetime tenure for justices of the Supreme Court. Perhaps the most naive decision made by those drafting the Constitution was letting state legislatures fix the “time, places and manner” of electing the Congress, which has given rise to our perverse system of gerrymandering. The founders thought, wrongly of course, that they were creating a system that would not have political parties.
So what if we could start over? A little-known provision of Article 5 allows for a new constitutional convention to propose amendments, if two-thirds of the states call for it. (Any proposals must be ratified by three-fourths of the states, so it is not an easy process.) By some accounts we are actually close to having the requisite number of calls. Given the current state of our politics, now is probably not the right time to engage in such a high-stakes venture, but one thing is for certain: If we were to write a new document today, it would look very different from the one we have been living with.
For starters, we could take account of new ideas that have emerged in the field of government over the past two centuries. Our founders thought of the Constitution as requiring a separation of powers among three branches of government, but a typical new constitution written today has a “fourth branch” of government, with institutions that are designed to ensure accountability. These include countercorruption commissions, ombudsmen and state auditors to monitor spending. Insulating accountability helps make it effective, and when bodies like this are mentioned in a constitution, their members cannot be simply hired and fired by the president at will. But such bodies are not mentioned in ours, and the Supreme Court ruled Monday that the president can fire members of independent federal agencies.
In a new constitution, we might also consider tinkering with the institutions we have. A national electoral commission to draw boundaries on the basis of technical rather than political considerations would reduce legislators’ incentives to draw safe seats. This would lead to more-competitive elections but less polarized legislatures. We could also institute rules to make sure the presidency goes to the person with the most votes. And a term limit for Supreme Court justices would eliminate the incentive to appoint ever-younger partisans to the bench. One idea, considered by President Joe Biden’s Supreme Court commission, is to allow each president to appoint two justices to an 18-year term. This would allow for justices to take a long-term view, without staying past their “sell by” date.
Another set of innovations has occurred in the realm of rights. We fought our Revolution for the inalienable rights to “life, liberty and the pursuit of happiness,” but, as society and the economy have grown more complex, ideas regarding what is necessary for a dignified existence have evolved. About 70% of Americans think healthcare should be a right, and most of the world’s constitution-makers agree. The right to an education is found in most constitutions, and the majority of them prohibit discrimination on the basis of sex or gender. Newer texts protect the disabled, and sometimes demand that policymakers take future generations into account.
As society and the economy have grown more complex, ideas regarding what is necessary for a dignified existence have evolved.
To be sure, we should not adopt new rules just to follow the crowd. Political institutions have to fit their society. But government evolves like other kinds of technology, and we would do well to consider updating ours from time to time. This, at least, was Thomas Jefferson’s view. Forty years after he penned the Declaration of Independence, Jefferson wrote a letter to a friend in which he argued that “laws and institutions must go hand in hand with the progress of the human mind … we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
For the moment, we may be doomed to live under rules adopted long ago in a very different United States, but that should not prevent us from imagining a better set of possibilities.
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