Fixing the Constitution

On July 29, 2024, The Washington Post published an opinion piece written by President Joe Biden. He proposed two Constitutional amendments and the adoption of an enforceable code of conduct for Supreme Court Justices. The proposed Constitutional amendments are intended to ensure that the abuses of power exploited by former President Donald Trump are constitutionally prohibited.

This initiative by Biden is important because he has opened the door for Americans of all political inclinations to talk about the Constitution. What is the Constitution’s political philosophy, its processes, its goals? What needs to be fixed? How can it be fixed? And, probably most important, what do we want American society to become? Biden’s proposals for Constitutional reform illustrate two types of problems that need to be addressed.

What is Biden proposing?

Biden’s first proposed Constitutional amendment, the “No One Is Above the Law Amendment,” is about rights. One role of the U.S. Constitution is to protect rights. This commitment was held by most men living in the colonies at the time. Before Americans would agree to the Constitution, the authors needed to commit to the first ten amendments and define certain limits on the federal government and rights reserved to the states and individuals. Americans at the time wanted it clearly stated that the government should not be free to do whatever it wants. The people who were responsible for establishing the Constitution and the Bill of Rights could not possibly have imagined a time when their document would result in a situation where, under their Constitution, the Supreme Court gives power to the president that puts him (they never thought of a “her” president) above the law.

His second proposal, Term Limits for Supreme Court Justices, is about how the government is organized with separation of powers. The authors of the first Constitution were unanimous in their opinion about this value. They did not want to have a king. So, they set up a revolutionary design with legislative, executive, and judicial branches. Since the average lifespan of a white American in 1776 was less than 50 years, they didn't anticipate members of the Supreme Court would live as long as they do today and potentially lose touch with younger generations of Americans. Neither could they anticipate that the Supreme Court members would come to see themselves as the most powerful branch of the government. Nor could they predict a future where American politicians are as polarized as they are today. So, how could the founders possibly design a Constitution that would avoid the current situation where the Supreme Court has so many members who have extreme views on the importance of individual and corporation freedoms and a small minority of those who are committed to the collective good of all Americans? Biden’s proposal is to amend the Constitution to limit the term of office for Supreme Court members to 18 years. This is designed so two new justices are appointed during every presidential term.

Constitutional reform is very difficult

The authors of the Constitution knew that the document they finished was not perfect. The founders provided two paths for the Constitution to be changed, set forth in Article V. Both set such a high bar that since 1790, when the Bill of Rights was added, only 27 amendments have been added. In one case, prohibition, an amendment was made and then rescinded.

One possible method has never been used. We have never had a constitutional convention. A convention can be called if it is requested by two-thirds of the state legislatures. After the convention proposes specific amendments, those amendments must be ratified by three-fourths of the states.

So far the Constitution has only been amended when two-thirds majorities in both the House of Representatives and the Senate agree to a proposal that is then ratified by three-fourths of the states. Even when there is an overwhelming majority of Americans who want a particular change in the Constitution, it is easy for their will to be denied. With 100 senators, 33 senators representing the population of just over 23 million people can prevent a proposed amendment from going to the states for ratification. This is about seven percent of the total population.

Both methods of amending the Constitution require that three-fourths of the states approve the proposed change. This means that fewer than half a million people in Wyoming have the same say as the more than 33 million people in California.

With one of the major political parties supporting Trump, it seems extremely unlikely that the amendments proposed by Biden can make it through the amendment process since they are directed toward Trump’s abuses of the existing Constitution.

Neither of the existing processes for amending the Constitution are consistent with the ideals of democracy.

This raises the question: Why don’t we start with changing the way we amend the Constitution? There is one value that should be easy to rally the American people and politicians around. That is the value of democracy. As we saw above, the process of modifying the Constitution is completely contrary to the principles of democracy. When people on the left and right who value democracy are challenged to support democracy, we can change the process of modifying the Constitution. All we need to do is elect people at both the federal and state levels who share the American people’s commitment to democracy.

At Ending Racism USA, we dream of a time when the structure of the government is modified along the lines that Dr. Martin Luther King Jr. proposed. King argued for re-establishing America on the principles of beloved community. This is a rejection of the concepts of competition and compromise that are built into the Constitution. In a beloved community, everyone is concerned about supporting what is good for the whole nation rather than what is in one's own self-interest. King argued for a structure of society with economic equity. He would be appalled to see the influence that wealthy people have under our Constitution with Supreme Court decisions that empower the wealthy. And King’s vision included non-violence in society and politics as well as non-violence as the foundation of American foreign policy. Once we make it easier to amend the Constitution, we can ratify amendments like Biden proposes. And we can amend the structures and rights so they support a multicultural society without racism.