The Constitution is Broken: We Need a Constitutional Convention to Fix It

The Constitution is broken and it needs to be fixed.   Yeah, I know it's heresy to say that.

I once assigned to my political science students the task of identifying a provision in the Constitution that has not worked and how it could be fixed.  I was shocked by my students' response.  The Constitution is PERFECT.  Nothing needs to be changed.  You would have thought I was suggesting the Bible be rewritten.

While reverence toward our (second) Constitution is not unreasonable, it should not blind us to the imperfections in the document.  Certainly if Madison, Hamilton, Washington and Franklin had lived to see 2021, they no doubt could identify specific constitutional provisions they drafted in 1787 which have proven over time not to work.  They would also undoubtedly have suggested changes.

Since the Founders are not coming back, my thoughts on Constitutional changes will have to suffice.

IMPEACHMENT:  The threat of impeachment and removal was considered to be a significant check on the executive and judicial branches.  Yet, there has only been eight federal judges impeached and removed from office in the entire history of this country.  When it comes to Presidents, none have ever been removed through the impeachment process.  (Nixon probably escaped that fate by resigning.)  But even more damning is that only one Senator - Mitt Romney - has ever voted to convict a President of his party during the trial of his impeachment.  While that number will no doubt improve as of today, the fact Donald Trump will once again easily avoid the 2/3 vote for conviction despite inciting an insurrection to stop the counting of electoral votes, an insurrection that resulted in five deaths and members of Congress and the Vice President narrowly escaping with their lives, shows how partisan politics has made a mockery of impeachment as any sort of check on the President.  

SUGGESTION:  When it comes to the President and perhaps cabinet officials, the Constitution should be changed so the House and Senate should be responsible, by majority vote, for impeachment with the trial of that impeachment taking place in the U.S. Supreme Court, with 6 or 7 (out of 9 justices) votes being required for removal. 

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PARDON POWER  As I have documented on these pages, the President's pardon power was originally limited for the simple fact that there were then very few federal crimes and pardons could only go toward those crimes. With an expansion of the federal criminal code came an expansion of the President's pardon power.   During his term, President Trump rewarded friends with pardons, and even dangled pardons as a reward for political cronies who refuse to speak to prosecutors about Trump's misdeeds.

SUGGESTION:  The President retains the federal pardon power, but the pardons have to be submitted to Congress.  Unless both houses of Congress decide by a majority vote to override the pardon by a certain date, the pardon is approved.

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TERM LIMITS FOR SUPREME COURT JUSTICES:  We need to get away from the game of appointing a 45 year old, relatively inexperienced person to the U.S. Supreme Court, hoping that he or she gets 40 years on the bench.  This is not a good practice, but one both parties understandably engage in.

SUGGESTION:  18 year terms for Supreme Court justices, with a term of a justice ending every 2 years.  That way every President will have at least two appointments during a four year term.

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TERM LIMITS FOR OTHER FEDERAL JUDGES:  I have never been a fan of lifetime appointments for federal judges.  I understand the need to be insulated from politics, but a long tenure in office, with no reappointment, would accomplish the same goal while instilling more youth and vitality in our federal judiciary.

SUGGESTION:  Perhaps a single 10 year term for federal district and appellate judges.  I guess you could match my Supreme Court proposal and make the terms 18 years.  Just don't make it a life term or give the judge a chance to be reappointed. 

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EMOLUMENTS CLAUSE:  The Constitution contains a foreign emoluments clause.  The purpose of the clause is to prevent corruption and foreign influence on federal officers, including the President.  It does this by prohibiting federal officials from receiving things of value from foreign leaders (who might be seeking to influence the official) unless Congress assents.  Up until Donald Trump, Presidents regularly divested themselves of business entanglements and investments that could have provided a possible avenue for foreign governments to seek influence.  Trump decided to just ignore the emoluments clause, never once seeking the assent of Congress for his numerous business ventures for which Trump personally profited from payments by foreign governments.

SUGGESTION:  It would notrequire a constitutional change to the emoluments clause, but there needs to be legislation which gives the emoluments clause teeth by requiring disclosure and deadlines for seeking approval from Congress.

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25TH AMENDMENT:  The 25th Amendment provides a process to remove a disabled President.  The Amendment says the Vice-President can have an unfit President removed with a majority vote of the President's cabinet.  This has proven to be unworkable.

SUGGESTION:  Fortunately, the 25th Amendment has language that allows Congress to establish an alternative body to the President's cabinet for the purpose of evaluating the President's fitness and casting a vote.  (Say a panel including medical experts and other professionals.) Congress just needs to get off its collective duff and pass the law.

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REDISTRICTING (GERRYMANDERING):  With the advancement of technology came the ability of state legislators to better gerrymander districts so competitive general elections have become few and far between. No longer needing to appeal to the broad electorate, candidates run appealing to their party's base by usually taking the most extreme positions possible.  The reason why compromise in Congress is rarely an option is that there are few legislators who have to worry about anything but appealing to their party's base in a primary.

Some people have argued Congress could pass a law taking away from states the drawing of congressional district lines.  Possibly.  It might take a constitutional amendment though.  Certainly as to states drawing their own legislative district lines a constitutional amendment would be required.  

SUGGESTION:  Turn the drawing of congressional and state district lines to federal judges.  You could assign the responsibility to federal circuit court judges to draw district lines for the states that they cover.  The 7th Circuit Court, for example, would draw district lines for Indiana, Illinois and Wisconsin.  I know some people will suggest "independent commissions" but too often those commission are as political as legislative bodies they replace.  I'm more confident in federal judges, with life tenures, drawing fair, competitive districts.

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HOUSE:  As House members are up every 2 years, they are constantly in re-election mode.  There needs to be more insulation from the whims of voters.

SUGGESTION:  House members should have four year terms, with half the chamber up every two years.

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How to go about making these numerous changes?  A constitutional convention.  

Extremists on both sides of the political spectrum freak-out when the possibility o f a constitutional convention is mentioned.  The far right envisions liberals using the Convention to write into the Constitution left-wing policies. The far left envisions conservatives doing the same thing.  

The extremists are united in their delusion..  Any proposal that a constitutional convention came up with would still have to be ratified by 3/4 of the states, a huge lift which ensures no far-right or far-left constitutional changes have a prayer of being approved.  Only the most reasonable, most most moderate changes to our foundational document would have a chance of being ratified.