The Constitution Is Basically Fine the Way It Is

By Robert VerBruggen

Sunday, December 13, 2020

 

It’s hard to change the Constitution. But it’s not so hard to get legal experts to talk about how they want to change the Constitution. So in a fun exercise, the National Constitution Center (NCC) recently asked teams of heavy-hitting conservative, liberal, and libertarian scholars to rewrite the document however they wanted.

 

The results are, more than anything, a testament to the enduring power of the original.

 

All three groups reworked the existing rules rather than starting from scratch. In their introduction, the libertarians recall joking that “all we needed to do was to add ‘and we mean it’ at the end of every clause.” And the conservatives sound like they had to force themselves to do the task they were assigned:

 

As conservatives, we were tempted to leave the Constitution largely unchanged, amending only those provisions most obviously in need of alteration. However, in the spirit of the NCC’s project, we attempted to think more boldly and propose changes that we believe would improve the Constitution to meet the exigencies of our era.

 

Heck, even the progressives sing the original Constitution’s praises and push back against claims that it’s “antithetical to a progressive vision of a government powerful enough to promote the public good while constrained by judges committed to protecting fundamental human rights.” They also resist the temptation to write “positive rights” — say, a right to health care — into the document, opting to leave such decisions to the political process.

 

Turns out the whole “three branches of government with strong protections for certain truly non-negotiable rights” concept is tough to beat.

 

And once you start tinkering with the smaller stuff that’s served us well for centuries, you quickly get into trouble. Despite keeping the basics of the current Constitution intact, these proposals manage to change a lot on a line-by-line basis — and these ideas largely come off as interesting fodder for academic conversations rather than things we’d actually want to try, even setting aside the practical difficulty of passing an amendment. Which, in turn, further drives home the conclusion that what we already have is pretty freakin’ great.

 

The progressives seem to want red states (and small states) to secede from the union. There would be 126 senators, and each state would be guaranteed only one, with the rest reflecting population shares; California would get 13 and Texas nine. Presidents would be elected by popular vote. The Second Amendment would read, “The right of the people to keep and bear arms is subject to reasonable regulation by the United States and by the States.” There would be broad new antidiscrimination language protecting “gender identity” and “the decision to . . . terminate a pregnancy.”

 

The libertarians, meanwhile, want to tip the playing field in the direction of smaller government, in part by returning to the Constitution’s original meaning but also by hamstringing the feds in new ways. There’d be a balanced-budget amendment to rein in federal spending except in emergencies, and all appropriations would sunset after two years. The “general-welfare” clause could no longer justify laws benefiting “the specific welfare of any particular group or individual”; the commerce clause could no longer justify federal regulations on purely within-state activities. Open borders would be the new rule, except for terrorists, criminals, and those with contagious diseases. The authors “thought about further restricting [immigrants’] eligibility for public benefits, but then realized that under our system, there wouldn’t be many public benefits available at the federal level” anyway. Can you even begin to imagine the backlash?

 

And the conservatives, whose proposal I found the most interesting, envision a new breed of politician, one more interested in the “common good” and less interested in doing whatever the public wants at any given second. The Senate would be cut down to 50 members “to facilitate genuine deliberation,” with each member limited to a single nine-year term and appointed by state legislatures rather than elected by the public. Presidential candidates would be chosen by state-level elected officials, rather than by the public in primaries, and elected through a national popular vote to a single six-year term. Maybe we’d be better off if the public would turn over more control to elites, but I seriously doubt it would stand for that.

 

There are a lot more ideas in these three proposals, and I can’t do justice to every issue — the administrative state! sovereign immunity! line-item vetoes! emoluments! — in a brief article. But of course, some of the ideas really are good ways to improve the Constitution. I’ve written before about reforming the way we pick Supreme Court justices, for example, and (like the libertarians and conservatives) I wouldn’t mind clarifying the Second Amendment so a future Supreme Court doesn’t effectively repeal it. Don’t tell any of my coworkers, but I even have some sympathy for electing the president by popular vote, or at least giving electoral votes to states in a way that more precisely reflects their populations.

 

But these are the kinds of tweaks we’ve passed numerous times throughout U.S. history, and that the Founders foresaw would be needed. A thorough rewrite, at this point, is destined to be too risky, too obviously a power grab by one side or the other, or too big a threat to our already-weakening national cohesion.