Unheralded

CLAY JENKINSON: Future In Context — America’s Constitution In 2021: What Would Thomas Jefferson Do?

In an earlier article, Editor-at-Large Clay Jenkinson described America’s Three Constitutions: The Capital C Constitution drafted in 1787, the small c constitution of norms and traditions not specified in the written Constitution and the ways the American people actually constitute themselves. In this second in a series, Jenkinson looks at the Constitution circa 2021.

“Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched.”

Thomas Jefferson

Thomas Jefferson warned us not to regard the Capital C Constitution as sacred writ. On July 12, 1816, he wrote, “Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”

Jefferson believed that a dynamic society like ours needed periodic constitutional revision lest it be suffocated by an out-of-date social contract. “Laws and institutions must go hand in hand with the progress of the human mind,” he wrote. “We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

Jefferson’s “solution” to the problem of a claustrophobic constitution was to tear it up once every nineteen or twenty years and start again. “The earth belongs to the living generation,” he declared to his closest friend James Madison, who was both impressed and aghast.

Almost Impervious to Change

We have not only embraced the 1787 Constitution in precisely the way Jefferson feared, but we have also been hesitant about amending it to keep it current with changing demographics, technologies and domestic geopolitical challenges.

The Constitution has only been amended 27 times in 234 tumultuous years, just 17 since the adoption of the Bill of Rights on Dec. 15, 1791. The most recent amendment (No. 27) dates to 1992 — it prevents sitting members of Congress from raising their own salaries. The more substantive 26th Amendment, setting the voting age at 18, was ratified in 1971, half a century ago.

Americans tend to be exceedingly conservative about amending the Constitution, and the Founding Fathers set the bar high: a two-thirds majority in both houses of Congress followed by ratification by three-fourths of the states. In the age of social media and mass mobilization, aggregating that high a supermajority has become so difficult that amending the Constitution is now regarded as a near impossibility.

Since 1787, more than 11,000 amendments to the Constitution have been proposed. Most of them die a harmless death in congressional committee. No more than 33 proposed amendments have been approved by both houses of Congress; of those, all but six have been ratified by the states. On average, approximately 200 amendments are introduced by members of Congress during its two-year tenure. In recent years the most frequently recurring proposals are:

From a longer historical perspective, several previously proposed amendments are as intriguing as they are fanciful:

“(N)o society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. … It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only.”

Thomas Jefferson, Paris, Sept. 6, 1789.

The Constitutional Struggle Over the Electoral College

If the United States followed Jefferson’s advice and wrote a new constitution or revised the one we have, what clauses and issues would likely dominate the debate?

At the moment, the principal subject of constitutional debate is the Electoral College, created by the founders for two reasons: first, to devise a practical and orderly way to tally presidential votes in an already immense nation that had, at the time, a very weak communications infrastructure; and second, to prevent direct democracy by establishing a kind of “college of cardinals” to make sure that “the people” don’t elect a corrupt or unfit demagogue.

The founders did not trust democracy. Jefferson was one of the few national leaders who believed that the people were up to it. Thanks to the infamous Three-Fifths Clause (expunged in 1868), the Electoral College also reinforced and protected slavery by giving extra weight to states where slavery was still legal.

Since 1788 the United States has moved (lurchingly) toward greater democracy. By that emerging standard, the Electoral College is seen by many as a fossil of the founders’ pessimism, an anti-democratic embarrassment. The main reasons for keeping it, aside from constitutional inertia, have been that it gives small-population states slightly more weight in national elections than they would otherwise have, and that, like the human appendix, it does little or no harm. That view has been challenged in light of recent elections in which the losing presidential candidate has received a significant majority in the popular vote.

Divided Decisions: When the Electoral College Goes to the Victor but Popular Vote Goes to the Other

The popular vote vs. the Electoral College vote: In 2016, Hillary R. Clinton won the former, Donald J. Trump won the latter, something he did not repeat in 2020.

In 2016, Hillary Clinton won the popular vote by a margin of 3 million but lost in the Electoral College 304-227. In 2000, George W. Bush received a few hundred thousand fewer votes than his opponent Al Gore, but with the help of the Supreme Court, he was declared the 43rd president.This past November, if a hundred thousand votes had gone the other way in key battleground states, President Trump would have won in the Electoral College, though he lost the popular tally by 6 million votes (more than the entire population of the United States at the time of Jefferson’s election in 1800). As several constitutional historians have asserted, the Electoral College is “a ticking time bomb” — opinion writers, too — that could lead to a severe constitutional crisis.

George W. Bush and Al Gore during the 2000 presidential campaign, the result of which would ultimately be decided by the U.S. Supreme Court.

Clarifying the Constitution Clause by Clause

Most constitutional historians and theorists agree that more provisions in the Constitution need to be clarified than replaced. President Trump, who was a self-defined disrupter and norm-buster, put so much pressure on the Constitution between 2016-2021 that he became the only twice-impeached president. He was twice acquitted. From the perspective of our national civics, we owe Trump a debt of gratitude for forcing us to focus on provisions of the Constitution that we had come to take for granted: the pardon clause, the emoluments clause, the impeachment clause and the separation of powers doctrine, among others. It would make sense now for the American people to address the clauses and provisions of the Constitution that have failed to provide unambiguous guidance in this time of national civic anxiety.

Rogues’ Gallery from the Pardon Clause: From left, Marc Rich (pardoned by President Clinton), Roger Stone, Paul Manafort, Michael Flynn, and Joe Arpaio (pardoned by President Trump).

Take the pardon clause (Article 2, Section 2), for example. The Founding Fathers wanted the national leader of the United States to have the power to show mercy to individuals who deserve it — whether they were wrongfully convicted, convicted according to standards we no longer support, when it was abundantly clear that they had been punished enough or when newly discovered information makes their incarceration problematic. In the Federalist Papers, Alexander Hamilton suggested that pardoning individuals who had participated in a rebellion or insurrection might help the country heal after a period of instability. The makers of the Constitution certainly did not intend the pardon power to be used to assist a president’s cronies, or key campaign contributors, or (worse) to be dangled prospectively before co-conspirators to keep them from revealing the crimes or corruption of the incumbent.

Most people remember President Clinton’s unconscionable pardon of commodities trader Marc Rich in the last hours of his presidency Jan. 20, 2001. President Trump’s pardons of Roger Stone, Paul Manafort, Michael Flynn and convicted former Maricopa County, Ariz., sheriff Joe Arpaio, among others, were widely seen as an abuse of the pardon power.

By any measure, the Constitution’s impeachment clause has not only failed to serve its purpose — which is to remove a corrupt or criminal president before his or her four-year term expires — but it is now in danger of becoming a routinize political weapon rather than a last-option civic guardrail.

To review:

  • In the 234-year history of the Constitution, only three presidents have been impeached: Andrew Johnson (1868), Bill Clinton (1998) and Donald Trump (twice, 2019 and 2021).
  • None have been removed by a two-thirds vote of the U.S. Senate.

It’s hard to believe that not one of the 46 presidents of the United States has deserved legal removal. It’s equally hard to believe — given what we have experienced — that any president, no matter how egregious, could muster a two-thirds eviction majority in the Senate.

The founders naively believed that senators would serve as a wise nonpartisan jury in the event of an impeachment trial. That senators mostly cast their impeachment trial votes along strict party lines indicates the weakness of the design. It might be more intelligent for the United States to adopt the British parliamentary system of an ad hoc vote of confidence or no confidence. Given the political bitterness over what President Trump went through during his single term, it is quite possible that in the event (post 2022?) of a solid Republican majority in the U.S. House of Representatives, the House might impeach President Biden or Vice President Harris, just for the fun of retribution and payback.

Executive Action as Soft Law without Constitutional Sanction

Executive orders are nowhere authorized in the Constitution itself, but all presidents have used them, some in a massive way. Virtually everyone accepts the idea that a president should be entitled to issue executive orders on purely administrative matters or matters not necessarily worthy of full congressional action. But the founders — crafting a constitution designed to grant primary authority to the legislative branch, but wary of executive overreach — would be deeply concerned when presidents issue executive orders on big and important matters that ought to be debated and voted on by the representatives of the people in Congress.

Examples:

The question is not the wisdom or rightness of these policies, but their constitutional legitimacy. It might be useful for a revisal commission to write an executive order clause into the Constitution, define their scope and create a mechanism for congressional review.

Continuing Efforts to Bend Constitution to the Will of Competing Interests

Other procedure adjustments (all controversial at various levels of outrage) might include:

  • Moving toward some sort of proportionality in the makeup of the U.S. Senate (two senators from Wyoming with its population of 579,000 and just two from California where 40 million people live?).
  • The elimination or reform of the Electoral College.
  • Clarification on the meaning of the Second Amendment in an age of mass shootings and gun technology that would have seemed impossible to the Founding Fathers.
  • Moving up a new president’s inauguration to December instead of Jan. 21.
  • Review of the emoluments clause, indented to limit foreign influence on federal officials.
  • Lowering the bar a little for future constitutional amendments.
  • Creating uniform best-practices voting procedures for every national election.
  • And clarifying the war powers doctrine, which the founders wanted to reside almost exclusively in Congress (indeed in the House of Representatives), but that was a time when the Atlantic Ocean was a moat that took six weeks for a foreign adversary to cross.

Given the high bar for constitutional amendment, the constitutional conservativism of the majority of Americans, the partisan paralysis of our times and the nearly universal view that tearing up the Constitution and starting over would be a nightmare and a political disaster, it is very unlikely that any of these provisions of the Constitution will be adjusted or reformed. But if Jefferson were here to advise us, he would almost certainly argue that regarding the Constitution as “too sacred to be touched” will eventually lead to the collapse of the American republic.

You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour,” and the new Governing podcast, “The Future In Context.”




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