The United States Constitution is the greatest legal framework developed in the history of humankind, carefully designed to enshrine individual liberties and establish impenetrable democratic institutions. Yet, a recent poll conducted by the Heartland Institute and Rasmussen Reports indicates that a substantial swathe of American voters–primarily Democrats and young people–believe the Constitution to be racist and sexist, with a full third of survey respondents believing the Constitution should be rewritten. Many liberal politicians and voters have explicitly called for sweeping changes to our democratic institutions, such as packing the Supreme Court with additional justices in the wake of Dobbs v. Jackson, proposing a new constitutional amendment to enshrine abortion rights at the federal level, and ending the filibuster, among many other radical ideas.
Though the solutions put forth by the progressive movement are either short-sighted or outright dangerous, there may be ways in which the Constitution can be amended to strengthen democracy, protect individual freedoms, enhance government efficiency, and optimize fiscal policy. Dan McLaughlin, in a piece written for the National Review, proposes seven such changes.
Quoting directly from the article, McLaughlin suggests:
Keeping the Supreme Court at nine justices: I have written at length on the “Keep Nine” Amendment before: a nine-member Supreme Court has been a stable feature of our system since 1869, and should be written into the Constitution in order to prevent the menace of court-packing, which would severely destabilize the rule of law, fundamentally alter the relationship between the branches of government, and create an uncontrollable vicious cycle of retaliations. Ideally, an amendment would make explicit what is already implicit: Democrats can’t get around this by removing the justices to another court and claiming that this is not an unconstitutional interference with life tenure.
Making the Electoral College automatic: The basic structure of the Electoral College is, despite its progressive critics, straightforward: Each state is awarded a number of electors by population (with small states gaining an advantage from the addition to each state’s votes of two electors for their two senators), a statewide popular vote is held, and the winner of that vote claims the electors. Two states, Maine and Nebraska, have chosen to distribute some of their electors by congressional district. But as we saw in recent elections, particularly in 2020, there are lingering threats to the system: States claim that their legislatures could choose electors directly (which no state has done since 1876) even after holding a popular vote, there are popular pressure campaigns on electors to be “faithless” and not select the candidate they were elected to support, and there are controversial claimed ambiguities in the Twelfth Amendment process that Donald Trump tried to exploit.
Congress can fix some of these problems by reforming the Electoral Count Act of 1887. But a firmer basis for eliminating future controversies over the election of the president would entail amending the Constitution to make clear that every state must choose electors via a statewide popular vote, and the winner of that popular vote must be automatically awarded all of that state’s electors. The amendment would also explicitly permit Congress to set, by legislation, certain types of rules of the road for how it counts electoral votes, thus removing constitutional objections to the Electoral Count Act.
Preserving the Senate filibuster and cloture rule: The Senate filibuster, like the nine-member Supreme Court, is a deeply entrenched part of our system, notwithstanding its erosion by lowering the threshold in 1975 and abolishing its use against judicial and executive nominations. The Constitution already sets minimum thresholds above a majority vote for treaties. My proposal would be simple, and mostly constitutionalize present practices: A bare majority of the Senate may confirm presidential nominees (including judges), set rates of taxation, and appropriate funds for a period of up to two years. But it may not pass any law binding on citizens, or create any program extending beyond the current Congress, without 60 percent of the Senate — a rule that thus requires the consent of statewide elected officials in at least three-fifths of the states.
Imposing age limits: We are increasingly plagued by gerontocratic leadership in the presidency and Congress, and we are storing up trouble. We also have no workable mechanism to remove an infirm Supreme Court justice. None of this was foreseeable at the Founding, when lifespans were much shorter. In order to head off crises that are at this point inevitable, we should amend the Constitution to prohibit anyone past the age of 80 from being elected to Congress, require Supreme Court justices and to retire by the end of the term in which they turn 70, and bar presidents from serving past a lower age — perhaps 75. Naturally, such an amendment would require some limited grandfathering of people currently in office, such that it does not become tied up in personal debates about Joe Biden, Nancy Pelosi, Mitch McConnell, Donald Trump, or Clarence Thomas. But our system would, within a few years, adjust perfectly well to these outer limits. The alternative is to eventually be led by those in a position of infirmity even more obvious than Biden’s current condition.
Age limits for Congress and the Supreme Court would also produce an outside form of term limits, without the intrusiveness of artificially shortened terms of office.
Implementing budget reforms: The line-item veto is a popular provision, previously passed as federal legislation and used in many states. (It is, in fact, just about the only good idea to come out of the Confederate Constitution.) Enshrining it in a constitutional amendment would allow presidents to highlight and veto particularly problematic portions of omnibus budget bills.
This amendment would change the dynamics of how such bills are written and negotiated, and gives the executive branch more power. But it could be paired with the other items. One is biennial budgeting, which allows Congress to go through the budget process every other year rather than every year. Another is to sunset all federal spending to require affirmative reauthorization — as the Framers originally expected Congress to work, as it worked until the 1930s, and as the Constitution explicitly requires it to work for the defense budget. Many entitlement programs would still be reauthorized if required to come to regular votes, but at least they would not run forever on autopilot unless affirmatively dismantled. That would restore control to the elected branches over the budget.
Separating federal and state budgets: Here, we would get onto more controversial ground. Accountability in our federal system has been gradually eroded by the proportion of state and local budgets that are funded by grants and programs in Washington. The fiscal justification for this is that the federal government can borrow money more cheaply than can states or localities, but that just allows more of our nation’s spending to be deficit-financed, evading state and local balanced-budget rules.
A federal balanced-budget amendment, while appealing at first glance, would never be workable, and would be used by progressives to mandate higher taxes; by contrast, an amendment returning to states and localities the burden of raising locally the money they spend locally would give voters more direct input into what projects are truly worth paying for.
Limiting spending leverage: The Supreme Court has been vigorous in protecting the right of religious people and organizations to receive government benefits on an equal basis with secular people and organizations. But many believers still rationally fear that taking the government’s dollar now means being coerced to violate their conscience later. We need not enshrine particular views on social issues into the Constitution in order to enact a more general protection against the use of the ever-expanding size of government as leverage to compel government orthodoxy at the expense of free conscience — religious or otherwise.
Jack McPherrin ([email protected]) is a managing editor of StoppingSocialism.com, research editor for The Heartland Institute, and a research fellow for Heartland's Socialism Research Center. He holds an MA in International Affairs from Loyola University-Chicago, and a dual BA in Economics and History from Boston College.