Rewrite the United States Constitution
Maybe it’s time to do what Thomas Jefferson advised every generation to do.
The Constitution has served as a framework for the government of the United States and as a guarantee of individual freedoms since 1788, but from the outset, people have had ideas on how to improve on what the Framers had created in their Convention. Within 18 months, the Bill of Rights was passed, adding 10 amendments to the new document—without which some state legislatures had refused to ratify it.
Now, 227 years later, the world has changed in ways that would overwhelm a Founding Father’s mind.
From 1789 to 1992, the Constitution was amended 27 times, and through judicial review, the meanings of many parts of the Constitution have changed. Yet questioning the wisdom—or the legend—of the framers can still be as electrifying as touching the third rail on the subway.
Despite the rose-colored history we learned in school, a deeper study reveals that most Founding Fathers believed that the best form of government was one in which the wealthy made the rules; their Constitution does at least as much to protect property and commerce as “liberty and justice for all.”
The original Constitution embraced slavery and limited suffrage to white men with property. And like a mythological many-headed hydra, the Amendment that finally ended the plantation system and freed the slaves (a change that, to many, looked like the birth of real democracy) became, a century-and-a-half later, the vehicle for the Supreme Court to create the concept of corporate personhood out of thin air (see page 19). No discussion, no vote, and no accident—and nobody’s life was enriched but the corporate gentry.
From Reconstruction to the Turn of the Century
Changed circumstances in the decades following the Civil War stirred several authors to propose modifying the Constitution. Reconstruction itself, and the varied feelings of victory, defeat, and unfairness, undoubtedly contributed, as did, in 1776 and 1789, the centennials of the Declaration and the Constitution. In addition, technology was advancing quickly, and the economy of the United States was undergoing transformation as millions of farmers and small-business owners became laborers for industrial conglomerates, and the Gilded Age created the first multimillionaires—who once again took the reins of power for themselves.
Albert Stickney, a Boston lawyer, published a book in 1879 on the subject of a new Constitution. He would maintain the executive and legislative branches separately, but allow the members of both to serve “during good behavior”—that is, perpetually, unless they were impeached for “bad” behavior. This, he hoped, would put an end to the party system, which he felt undermined the democratic process.
Between the late 1800s and early 1900s future President Woodrow Wilson (1913-21) wrote several papers on revising the Constitution. One of his major proposals was to allow cabinet members to come from, and remain in, Congress (as in the British Parliament). Wilson’s primary concern was a decline in statesmanship, and by allowing the two branches to mix, he believed, the cream would float to the top. He also proposed lengthening the term of congressmen, and perhaps even allowing the President to serve during good behavior. He would also allow the House to be dissolved, and expected the Senate to follow suit.
English-born lawyer Goldwin Smith was a frequent commentator on the U.S. Constitution. He published an article in 1898 in which he recommended modifying the legislature to the British Parliamentary model, weakening the Supreme Court, and clarifying taxation and tariff issues. He proposed repealing the 15th Amendment, and though he claimed it was not to disenfranchise blacks, his comments on Eastern European immigrants belie a racist twinge.
Proposals Occasioned by Progressivism and War
The early 20th century was marked by two great political events: the rise of progressivism, and World War I. Progressivism, led by such reformers as Theodore Roosevelt, Eugene Debs, Jacob Riis, and Jane Addams, was a movement concerned with such new phenomena as the rise of industry and the growth of cities. Progressives touted equality of women and of the races, and supported suffrage reform and civil rights. World War I, like WW II 30 years later, brought some needed prosperity, but also the deaths of many American soldiers. American isolationism was a prevalent theme until the U.S. entered the war.
Walter Clark, chief justice of the North Carolina Supreme Court, published an article in 1907 that embodied progressive ideologies. His main complaint was that the Constitution is not democratic. He advocated popular election of Senators (a common theme prior to the passage of the 17th Amendment) and proportional state representation in the Senate. He applauded the changes in the election of the president, but called for even more reform, including changing the Electoral College to match population ratios rather than legislative representation, and a six-year presidential term.
Walter Tuller, California lawyer, in 1911 advocated a convention to amend the Constitution. His primary goal was popular election of Senators (which was accomplished in 1913). He also proposed that the amendment process be changed to allow an amendment to be ratified upon acceptance of half the states rather than three-quarters of them, and a change to allow the federal government more explicit control over corporations. Tuller devoted much of his paper to a discussion of the number of states that have called for a convention, and how to force one should the Congress fail to call one.
Proposals from the Turbulent 1960s and Early 1970s
Civil Rights was the topic of the decades following WW II. Judicial activism clearly upset many observers as well as those holding positions of power. Many people proposed changes to overturn one or two Supreme Court decisions, though calls for widespread change continued to be issued as well.
The Council of State Governments met in 1962 and adopted a platform that consisted of suggestions for several amendments that would specifically strengthen states’ rights. It proposed a state-centric method for amendment and created a “Court of the Union,” which could overrule any Supreme Court decision. The proposals of the Council were widely panned.
The Black Panthers met in 1970, and had a convention to propose changes to the Constitution. The convention never issued a formal statement of proposed changes, but a newspaper account listed the following: a total restructuring of all political boundaries, police forces made up of community volunteers, a military made up of volunteers, free housing and health care, free child care, and a host of proposals to support communist rebels and governments. Though a good share of their proposals would seem to have little to do with the Constitution, some of their proposals have eventually become reality.
Rexford Tugwell, an economist who worked with FDR, wrote a book finally published in 1974, 29 years after Roosevelt’s death. It was an exhaustive tome, intended for a scholarly audience. His main concerns were that today’s government bore little resemblance to that outlined in the Constitution, and that the amendment process was too rigid to allow for continual, generational change. He was also highly critical of judicial review, unsurprising considering his political roots. His plans for revision are hard to categorize. He was critical of the current system of separation of powers, but he would not have eliminated it, just refined it. He thought the president had too much power, but rather than eliminate the presidency, he expanded the presidential term and provided for two vice-presidents instead of just one. Senators would be appointed for life, a portion of the House was elected on a national scale, several new courts were proposed, and he added a Bill of Responsibility to the Bill of Rights.
More Proposals from the Bicentennial to the Present
Jeremy Miller, law professor at Western State University College of Law, called for a re-evaluation of the Constitution at its 1987 bicentennial. He wanted in particular to do away with paternalistic law, a decrease in the size of government, and an increase in individual freedom. Miller even provides a draft of his proposed document, which is much more detailed than the current Constitution.
For example, it goes into detail on religious freedom, defines specifically what “arms” means, details search-and-seizure and stop-and-frisk procedures, outlaws abortion, and the use of mechanical objects for organ transplant. Interestingly, neither voting rights nor equal protection are guaranteed. Like the Chinese Constitution, among others, it also lists the duties of citizens. He similarly outlines many changes to the structure of the government, including term limits, creation of a national lottery, and legislative review of judicial review.
Amendment XIV
SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
SECTION 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
SECTION 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
SECTION 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
SECTION 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
