The American people regard the U.S. Constitution as a sacred document — even though Jefferson specifically asked us not to — and historically we have been very reluctant to tamper with it. Too bad because it is badly in need of fundamental revision. Our Constitutional order has broken down. After years of thinking about this, I offer the following amendments.
- The Electoral College must now go. Whoever wins the popular vote should be president. The Electoral College was created in 1787 to take the actual election of the president out of the hands of the people. It did just that in 2016. Hillary Clinton won the popular vote by a majority of 3 million, but the byzantine workings of the Electoral College made Donald Trump president instead. (I’m not contesting his election). What if she had won the popular vote by 10 million votes? What about 20 million? The American people are soon going to tire of this fossil of anti-democratic anxiety entailed on us by the Founding Fathers. In 1913, the Constitution was amended to permit direct election of senators. They were previously chosen by state legislatures. It’s time to amend the Constitution to permit direct election of presidents.
- It’s also time to revisit the Great Compromise that gave us proportional representation in the House of Representatives and identical representation in the Senate. California’s population has now reached 40 million. Wyoming has 577,737 people. And yet they both get two U.S. senators. How can that be fair or democratic? California has 70 times more population than Wyoming. If you add up the populations of the 10 least-populated states, you get 9.3 million people. Those 10 states get 20 U.S. Senators, and yet their total population is only a quarter of the population of California, which gets two. Why should my beloved North Dakota, with 760,000 people, have the same number of senators as New York’s 20 million people, or Texas’s 28 million? It’s not fair, but more importantly it does not make for good government.
A handful of small and modest states that happen to encircle a small fraction of the 330 million people of the United States can hold up business in the Senate, and therefore hold up the business of the most important country on earth. It has paralyzed us.
There would be plenty of ways to fix this. How about this. Every state gets at least one senator, but the most populous states — where the people of America actually live — get more. So, North Dakota, Wyoming, Alaska and Vermont get one senator, all the way up to Kentucky, with its population of 4.4 million. That accounts for the 25 least populated states. The top 10 states, states that meet the threshold of 10 million citizens, get four senators each: That’s California at 40 million people, down to Michigan at just over 10 million. That takes us to 65. The next five, New Jersey, Virginia, Washington, Arizona and Massachusetts get three senators each. That takes us up to 80. The remaining 10 states — Tennessee, Indiana, Missouri, Maryland, Wisconsin, Colorado, Minnesota, South Carolina, Alabama and Louisiana — get two each. Voila.
This would almost immediately change the destiny of the United States.
- It’s going to be expensive, but we need to move to public financing of all national elections, and an outright ban on Political Action Committees and their ilk, and all mechanisms and maneuvers by which powerful individuals and giant corporations control American policy. We should begin by overturning the Supreme Court’s appalling 2010 Citizens United decision that opened up the sluice gates to unlimited money interference in American elections. Each presidential candidate should get an identical X million dollars to spend, period, and any attempts to violate that ceiling should be met by mandatory jail terms for the top campaign staff. A series of three to 10 presidential debates would be publicly funded and broadcast by every news entity. Political ads would simply be banned altogether. This would revolutionize our elections. People would wake up and listen carefully to the debates.
- Life tenure in our judicial system would be OK if each side did not attempt to pack the courts with young ideologues. We need to create a nonpartisan vetting commission to provide the president a slate of 10 or 20 of the best qualified jurists in the United States — distinguished for their learning, judicial temperament, character, administrative mastery, nonpartisanship and independence of thought. There would be an emphasis on diversity: young and old, male and female, Jew and gentile and Muslim, black, white, Asian, Hispanic, Native American. When an opening occurs on the Supreme Court, the president chooses from the confines of that list. Meanwhile the farce of the Senate Confirmation procedure must be reformed. At the moment, senators ask questions that a nominee should not be expected to answer, and presidents now choose nominees who have not left a paper trail of scholarly articles, op-ed pieces or public speeches that might come back to haunt them in the Senate hearings. Both parties now have litmus tests, though they deny it. Judicial nomination has become far more political than judicial. In fact, politics should have nothing to do with it. It’s unfair to the nominees, and it does not create the kind of brilliantly unpredictable Supreme Court we should want in a free society. I believe we should eliminate life tenure altogether and establish mandatory retirement, at every level of the U.S. judicial system, after 20 years on the bench. No nonelected individual should serve for life in our republic.
- The War Powers Doctrine needs to be re-examined. The founders were clear that questions of war and taxes must begin in the House of Representatives because that is the branch closest to the will of the people. We need to make it impossible for any president to commit troops anywhere in the world without explicit congressional approval, except when American citizens or troops are under attack and there is no opportunity to convene Congress before responding. We should create a permanent bipartisan Congressional War Powers Committee that must sign off when the president takes emergency measures even in an international crisis. The principle that the executive must not arrogate to himself the war powers of the Constitution must be strengthened in a way that provides both flexibility and a return to legislative primacy.
- We need to pass a constitutional amendment requiring members of Congress, the staff of the executive branch and all other federal operatives to be subject to every law they pass for the rest of us. There must be no exemptions for members of Congress. They must be 100 percent subject to every law they pass. Furthermore, their salaries should drop by $5,000 per day for every day they shut down the American government, and their salaries should be docked $1,000 per day for every day they have missed the annual self-imposed deadline to pass a congressional budget.
- The presidential pardon power should be repealed. Even before it began to be seriously abused by men like Bill Clinton (remember the Marc Rich pardon?) it was a little fossil of monarchism that has no place in a society that says it honors laws not men.
- The emoluments clause should be tightened and clarified, and no person should be administered the oath of office who has not released her or his tax returns for the past 10 years, placed all of their financial holdings in blind trusts and separated themselves entirely from any personal financial decisions for the four or eight years they are President.
- The Constitution should follow the U.N. Universal Declaration of Human Rights (1948) and declare access to equal health care a right and not a privilege of the American people.
Well, this could go on and on. We can fix this broken system. There is nothing sacrosanct about the current Constitution of the United States. It was the work of practical idealists, who had torn up the old Articles of Confederation because they no longer enabled a great nation to move forward with its public business.
You may have different constitutional solutions in mind. Send us your thoughts.
John A Burke March 2, 2019 at 11:51 am
Thank you Clay! I am 100% in agreement with you. As we look at the symptoms, the two that presently stand out the strongest to me are: 1. Fear by members of Congress that they may lose their seat; and 2. Elimination of the “Fairness Doctrine” in broadcasting. Many, possibly even a majority of, Republican members of Congress probably don’t like, or even detest Trump. But they have seen that their chances of re-election are diminished if they oppose him. Senator Lindsey Graham was quite critical of Trump until he noticed that his approval rating among South Carolina Republicans had fallen to 58%, while he must run again in 2020. So he did a 180 degree turn and embraced Trump, and is approval rating has risen to 72%. North Dakota’s own Kevin Cramer rode the Trump coattails to a decisive victory over an incumbent Heidi Heitkamp. The willingness of the Far Right to attack and defeat moderate incumbents has driven Republican members much further to the right. How did we get here? Largely because the “Fairness Doctrine” was repealed during the Reagan administration, opening the airwaves to the likes of Rush Limbaugh, Glenn Beck, Alan Jones, Sean Hannity, Bill O’Reilly, Ann Coulter, Tucker Carlson, Fox News, Breitbart News, etc. Over the past 30 years these and others have systematically carried on a propaganda campaign that has poisoned the minds of a significant slice of the people, causing them to illogically vote against their own interests. Harlan County Kentucky, for instance is one of the poorest in America. Fifty-four percent of the population receive government assistance. And yet 90% voted for Trump in 2016. I believe we need to carefully study how FDR won the people back from the oligarchs. For one thing, just offering assistance is not enough. Too often it comes with a sense of embarrassment and/or degradation. We must also find a way to offer dignity as well.Reply
DE Green March 3, 2019 at 6:34 pm
Awsome piece!! A perfect example of how things can and should be adjusted so that country will run FOR and BY the people instead of the deep pockets of greed that have our country in it’s grip. I have forwarded it to FB and would jump in an instant to be one of the 3% that it will take to get our country on it;s own legs for a change.Reply
NOW THAT YOU’VE WRITTEN IT, HOW DO WE GET IT DONE??
David S. Day March 4, 2019 at 12:01 pm
Thank you Mr. Jenkinson, for your thoughtful and well reasoned prescriptions to remedy the steady corruption of our Democratic Representational Republic. Like you, I have given thought to many of the same concerns you identify, and have come to many of the same conclusions. There might be a few work around fixes that would not require constitutional amendments or super majorities to accomplish.Reply
You say that your election remedies would be expensive. That is not necessarily so. The primary cost driver in modern elections is TV time. One wouldn’t have to ban all political ads to achieve desireable effects. Legislation that limited the time period of ads from Labor Day, to Election Day, would serve two purposes. Spare the public from never ending bombardment of political ads, but, also greatly reduce the total amount of dollars spent on airtime.
Secondly, people have forgotten that WE own the airwaves. Broadcasters, whether television or radio, rent the airwaves. There was a time when we required public service announcements to qualify for a broadcasting license. We could again. Presently our system provides a gigantic windfall from political ads, to powerful broadcasters. Their lobbyists insured the predicament that we find ourselves in. This could change easily with the weight of public determination, through legislative means.
Several states have already legislatively required that their Electoral Votes be designated to the Presidential candidate who secures the most votes, nationally. It could sound the death Nell for the Electoral College. While smaller states might resist, at first, Their cooperation would soon follow public sentiment. Jump on, or be left out!
Finally, along with the reinvigoration of The Fairness Doctrine, and reversal of Citizen’s United, we should consider making Election Day a national holiday. It would honor our Republic, it would honor our forefathers, and it would honor all Americans.