The United States Constitution is the longest lasting written constitution in the world, despite the fact that one of the key framers, Thomas Jefferson, believed that written constitutions ought to have a nineteen year expiration date before they are revised or rewritten. Yet, it has been nearly thirty years since the United States Constitution has even been amended, and critics believe many aspects of the Constitution are no longer suitable for the United States today.
This article argues that the Constitution is long overdue to be amended or even rewritten. It will first analyze factors that have allowed the United States Constitution to endure far past its expiration date. Second, it will criticize the Senate, the House of Representatives, and the presidential system in the context of the Constitution..
Finally the article will analyze a proposed solution to break Washington D.C. into 127 states in order to gain a supermajority to amend the Constitution, and analyze whether the solution could be plausible under the rigid constraints of Article V of the Constitution.
On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right1.
In one of the longest letters written in his life, Thomas Jefferson wrote to his friend James Madison from his post in Paris as the American ambassador to France. In this September 6th, 1789 letter, while observing the early days of the French Revolution, Jefferson eloquently articulated that the earth belongs to the living and should be governed as the living see fit, explaining that laws imposed by previous generations naturally have a 19 year expiration date.
If these were the words and thoughts of one of the prominent minds behind the Constitution, why does the United States continue to adhere to this relic of a constitution that has exceeded its expiration date by over 200 years? The United States Constitution continues to be revered in the federal government and beyond, despite blatant gaps that have been supplemented over the years by court precedents, unwritten norms, and traditions.
It is puzzling that despite a civil war and numerous paradigm shifting social movements and technological advances over the past two centuries, the Constitution has endured with minimal criticism and remarkably few amendments. As is evident from Jefferson’s letter to Madison, the Constitution was not intended to last until the year 2020. This paper will examine the reasons why it has endured to this day, why it is so difficult to revise, and whether it truly is time for a new one to be written.
Constitutional Longevity in the United States
The United States Constitution was drafted to solve the problems the new nation was facing under their first attempt of a constitution, the Articles of Confederation. Under the Articles of Confederation, there was little centralization of government, allotting minimal powers to congress and granting individual states sovereignty and independence.
Congress lacked authority to levy taxes or regulate commerce, which were principal issues precipitating in the Constitutional Convention of 17872. After fighting for independence from a religious oligarchy in England, the authors of the Articles of Confederation were apprehensive to grant strong power to the central government in fears that it would erode into the kind of tyranny they had just broken away from, but in the years following the ratification of the Articles, it became clear that a new constitution was needed in order to strengthen the union between the states3.
The resulting Constitution this country continues to adhere to today was written before the age of partisan politics, which is one reason why it has endured for so long. The process to modify the Constitution was plausible before partisan politics emerged as the new norm, since there was a significantly higher level of compromise occuring in the legislative branch that would have accommodated either a two-thirds vote in both the House and the Senate, or a convention to be called for by two-thirds of state legislatures, as laid out in Article V of the Constitution.
But today the political landscape is completely different than it was in 1787 during the drafting of the Constitution, before the existence of partisan politics.
Politics in the United States has grown increasingly polarized since 1787, creating severe negative implications on democracy and threatening the primary functions of the government. Politicians are less likely to compromise, equating to increasingly low levels of productivity in all branches and levels of government.
The deterioration in government productivity can be observed in the last five years, evident in increased Senate rejections of presidential nominees – a process which used to be routine. Other examples of that deterioration include increased use of the filibuster by the minority and the subsequent response of the majority in abolishing filibusters for certain types of votes, as well as and the decline in the number of laws passed by Congress to the lowest levels in recent history4.
The increasing polarization gap can also be observed in the frequency of amendments to the Constitution in its history. The last amendment to the Constitution was the 27th Amendment, ratified in 19925. In the 28 years since then, the Constitution has not been touched, which can likely be linked to the decline in the government’s ability to compromise and pass legislation due to polarization.
While polarization provides one explanation of the Constitution’s permanence, another factor in the enduring marriage of the United States to its Constitution is the symbolism of the Constitution and the importance of American exceptionalism. For those who grew up in the United States, the Constitution was taught in school from an early age and ingrained in young peoples’ minds as the supreme law of the land. The symbolism of the Constitution is planted in young Americans and that symbolization solidifies the longer the United States goes without amending it. Not just in the United States, but around the world, Constitutions symbolize sovereignty and statehood, which is often equated with legitimacy6. In the 1930s, political journalist Max Lerner stated that for people from all walks of life, “even below the threshold of their consciousness, and you will in the main find that the Constitution and Supreme Court are symbols of an ancient sureness and a comforting stability7.” The founding fathers of the Constitution have god-like status in the United States, and the images of the 1787 Constitutional Convention symbolize respect and permanence. The Constitution was written based on doctrines of French philosopher Jean Jacques Rousseau, as a protection against foreign aggression, and to check the power of the federal government so the new nation would not experience the pitfalls of their predecessors8. To many Americans, the Constitution is more than just a law-making document, it represents core values of the United States such as sovereignty, stability, and possibly a representation of American exceptionalism, since it is the first and longest lasting national written constitution. Allegiance to the Constitution equates to allegiance to the United States of America, meaning the Constitution itself is a symbol of American identity, which explains the strong sense of ownership Americans have over their Constitution.
In a 2009 report titled “The Lifespan of Written Constitutions” conducted by Thomas Ginsburg, Zachary Elkins, and James Melton, all national constitutions written since the 1789 ratification of the United States Constitution were studied to determine average lifespan of written constitutions, the factors that lead to failure or success of a written constitution, and what ultimately leads to the demise of constitutions. They estimate that the lifespan of written constitutions has averaged only 70 years since 1789, compared to the United States Constitution, which has tripled that average, lasting over 230 years since 1789. While many may consider longevity of a constitution to be an indicator of success, this is not necessarily the case. Ginsburg, Elkins, and Melton define a successful constitution as one that “serves as a coordination device that renders its underlying political bargains self-enforcing, meaning that it must create a state of equilibrium from which no party has an incentive to deviate9.” This is an thought-provoking definition in the context of the United States political environment today. One of the major failures of the United States Constitution is its application today is its rigidity and its need for court precedents and unwritten norms to fill that gaps that should realistically be structured by constitutional guidelines. These unwritten norms allow for abuses to occur without repercussions in the federal government, since so much of the Constitution can be left to interpretation.
Under Ginsberg, Elkins, and Melton’s definition of a successful constitution, the United States Constitution does not pass as successful because there are significant incentives on both sides to deviate from the so-called “equilibrium,” and as a coordination device, the Constitution fails to explicitly guide key government functions, creating need for those unwritten norms and court precedents. In these scholars’ definition of a successful constitution, at no point does that success equate to longevity. They emphasize that, “even though constitutional bargains may have relative winners and relative losers, they will endure to the extent that the losers either (1) believe they are better off within the current constitutional bargain than in taking a chance on negotiating a new one or (2) are unable to overthrow the existing order10.” This point provides a possible explanation for why the Constitution has gone so long without being amended or rewritten. The status quo of preserving the Constitution benefits a majority of people in the United States who do not question the authority of their constitution. Those who take the time to analyze the failings of the Constitution are in the minority and likely do not possess the power to make significant change in the federal government. That minority is the clear “loser” in this context, as they do not possess the power and influence to overthrow the existing order and therefore would be better off not taking a chance on negotiating a new one. Additionally, in the context of the United States, the people who possess the most power are the ones who benefit the most from the Constitutional status quo and this fact further entrenches the permanence of the United States Constitution.
Criticism of the United States Constitution
In Barack Obama’s 2009 book The Audacity of Hope, he writes that “Conservative or liberal, we are all constitutionalists11.” Politicians in the federal government seem to believe that speaking out against the Constitution is cardinal sin, revering it as if it were the ten commandments12. But outside Washington, many prominent political minds are unafraid to criticize the Constitution for a wide range of reasons, with criticisms coming from both sides of the political spectrum. A leading critic of the Constitution is University of Texas law professor Sanford Levinson13. Levinson has written numerous pieces criticizing the Constitution and arguing for why it needs to be rewritten from a liberal perspective. A prominent critic of the Constitution on the other side of the political spectrum is Mark Levin, lawyer, radio host, and Fox News pundit who identifies with the tea party and attacks the Constitution with their ideals in mind14. While critics of the Constitution may have different motives to revise or rewrite the Constitution, they tend to address similar areas in which the document is failing American people.
The most widely criticized chamber of the United States federal government is the Senate. During the Constitutional Convention, the Senate was the most hotly debated topic, with dissent from Federalists James Madison and Alexander Hamilton15. The Federalist argument against creation of the Senate was that the government should represent people, rather than socially constructed “states16.” The argument over the Senate threatened the Constitutional Convention of 1787 to collapse on multiple occasions, but ultimately Robert Sherman of Connecticut, and Benjamin Franklin’s guidance led the convention towards the compromise that created the bicameral legislative branch17. The intention behind creating the Senate made sense for 18th century America, but the problem today is that a small state such as Vermont, with a population of approximately 600,000 people, has equal voting power in the Senate as California, which has a population of nearly 36 million people18. Levison further breaks down the disproportionation of the Senate, explaining that 52 percent of the American population lives in only 9 states, meaning only 18 percent of Senate votes are representing over half of the country’s population. He continues by predicting that by 2040, an estimated 70 percent of the population will live in 15 states, while the remaining 30 percent of the country will have 70 senate votes19. Now more than ever, it is illogical and undemocratic to try to represent the population of the country based on arbitrary geographical borders.
Toobin claims that the creation of the Senate was the “original sin” of the Constitution, and that it has not redeemed itself since then, and has in fact deteriorated, referring to it as “a graveyard for legislation20.” Even since the passing of the Seventeenth Amendment in 1913, allowing for direct elections of senators, the Senate’s main purpose has been to shut down bills. The bills that are shut down in the Senate tend to be backed by a popularly elected President, and House members of the same party21. The Senate naturally favors smaller states due to the disproportionate distribution of voting power, and this is a problem because it does allow for equal representation the population of larger states, and therefore the population of the country as a whole. The idea behind creating the senatorial veto was that it would be an accessible tool to both parties, although this concept fails in today’s context22. Since many of the small states tend to vote conservative, the senate is generally a conservative body that aims to slow change in government, and this is a major roadblock for legislative progress, perpetuating the “legislative graveyard” reputation of the Senate23. Rather than actually representing the American people, the Senate adheres to arbitrary geographic borders, rather than ideological.
According to Harvard Law School professor Noah Feldman, “The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats24.” While the party that strives for activism has swapped back and forth between the Democrats and Republicans in the past two centuries, the core argument of this statement is that the party striving to make positive changes in the government will almost always be stopped in the Senate, because the composition of the Senate accommodates those who are already in power and benefit from the status quo. This impacts the discussion of amending the Constitution because any potential activism to change the Constitution is less likely to come from liberals, and therefore the currently conservative Senate is where any potential amendment will die because of the deep partisan divide in the federal government. To Levinson, one of the most impenetrable defenses of the Constitution is the difficulty of the amending process, stating that “you have a situation where legislators representing less than one-tenth of the population of the country can stop any amendment. That’s completely undemocratic25.” Article V of the Constitution restricts any modification of the makeup of the Senate, declaring that “no State, without its Consent, shall be deprived of its equal Suffrage to the Senate26.” It’s ironic that the chamber of the federal government that’s creation nearly caused the collapse of the 1787 Constitutional Convention is the very chamber that would likely put the brakes on any modifications that could mend the problems of the federal government.
The House of Representatives
The ailing Senate is not the only failure of the Constitution, the House of Representative has its share of issues as well. While the past section discussed how the Senate is a graveyard for political activism, the House of Representative has its own dysfunctional past, causing multiple government shutdowns and creating the undemocratic practice of partisan gerrymandering27. While Levinson is outwardly critical of the house, other prominent voices in the Constitutional conversation offer their critiques of the House. For example, Georgetown Law School professor Randy E. Barnett actually favors the Senate over the House from a states rights point of view28. The key aspect of the Senate that Barnett defends is veto by smaller states who should not be manipulated by bigger states’ influence. This rift, Toobin argues, is one of the “great American fault lines29.” Senator Orrin Hatch of Utah is another critic of the House, since as a senator, he benefits from the Senate’s equal representation of states regardless of their size30. But the issue lies in the fact that it is not the needs of individual states that are important, but the people living within those constructed state borders.
This raises the question, is the House actually representative of the American populace? Simply put, no. Partisan redistricting has played a starring role in the makeup of the House since Elbridge Gerry’s infamous redistricting of Massachusetts in the shape of a salamander, which generated the term Gerrymandering31. Since the Constitution has nothing that explicitly rules out the practice of Gerrymandering, the decision whether to allow it fell upon the Supreme Court in the summer of 201932. In a 5-4 decision, the courts effectively ended the conversation on Gerrymandering, ruling that it would be permitted under the Constitution. On behalf of the court majority, Chief Justice Roberts wrote that the drafters of the Constitution “understood that politics would play a role in drawing election districts when they gave the task to state legislatures. Judges are not entitled to second-guess lawmakers’ judgements33.” This explanation for the ruling simply does not justify the degree to which gerrymandering affects the House. As mentioned before, the Constitution was not written under the expectation that the United States Government would become a deeply divided partisan system. But more importantly, the Constitution was not meant to last into the twenty-first century, and these philosophies are outdated and must be amended.
While the practice of gerrymandering does not inherently favor one party over the other, the Republicans have used it more frequently in recent elections, using sophisticated software to analyze populations to reorganize districts that favor their candidates34. The events that precipitated the Supreme Court ruling were that redistricted maps of Maryland and North Carolina that favored the Republican party were thrown out by district courts that deemed the practice unconstitutional. This decision was appealed and brought to the Supreme Court, who ultimately decided that the predicament of partisan gerrymandering was a political question that ought to be decided by the elected branches of government as opposed to a federal court decision35. Nowadays, partisan gerrymandering is most prevalent in Republican states because in the 2010 elections, Republicans gained significantly more control of state legislatures, granting them redistricting responsibilities after the 2010 census36. Republicans devoted resources and hired experts on the topic of redistricting, much to the chagrin of Democrats37. In Justice Kagan’s dissent on the 2019 Supreme Court rulings, she wrote that “the practices challenged in these cases imperil our system of government. Part of the court’s role in that system is to defend its foundations. None is more important than free and fair elections38.” Kagan is right, because partisan gerrymandering prevents elections from resulting in true representative government, which is a pinnacle function of a democracy. The Constitution failed to anticipate the deeply partisan nature of the government which has led parties to partake in extremely undemocratic practices to win more influence for their party, rather than represent the needs of their population.
The Presidential System
Arguably one of the biggest threats to American democracy today is the threat of executive autocracy. The Constitution was written with a goal of balancing power between three equal branches of government in order to prevent a tyranny from emerging, but over the two centuries since the Constitutional Convention, presidents have found loopholes and created precedents that increase their influence and hamper the built-in checks of the Constitution. According to Malcolm Gladwell and Noah Feldman, one of the biggest mistakes of the Constitution was the choice to use a presidential system for the executive branch, as opposed to a parliament39. They argue that presidential systems are rigid and inefficient, and are inferior to a parliament because if the public does not like their prime minister, a vote of no confidence will be conducted and the leader will be swiftly removed and replaced40. This seems like an infinitely more competent removal process than the impeachment process used in presidential systems. In the United States, the Constitution lays out the impeachment process in Article II, Section 4, explaining that the “President, Vice President and all civil Officers of the United States” shall be removed from office if convicted in an impeachment trial of “Treason, Bribery, or other high Crimes and Misdemeanors41.” In the age of the Constitution, three presidents, one senator, one cabinet officer, and fifteen judges have been impeached, and of those twenty people, only eight judges were convicted and removed from office42.
The myriad of issues with the impeachment process in the United States begin with the vagueness of impeachable offenses in Article II, Section 4. The Impeachment Clause, defining impeachable offenses as “high Crimes and Misdemeanors, precludes Congress from impeaching officials for other offenses, or simply for incompetence to serve their position, even that incompetence is blatantly obvious to the public43. In September of 2019, Speaker Pelosi announced that the House would begin an impeachment inquiry of President Trump’s alleged efforts to influence Ukraine to investigate Vice President Joe Biden, making Trump the third president to be impeached in US history44. Of those three presidents that have been impeached, Trump is also the third president to be acquitted of his impeachment charges, proving how ineffective the impeachment process is in the United States45. Over the course of Trump’s presidency, his approval ratings have averaged a historically low 40%46, which would likely result in a vote of no confidence in a parliamentary system. Unfortunately the Constitution uses a presidential system that likely could have been amended, along with the other aforementioned problems with the Constitution if the amending process was more suited to the reality of the modern United States.
In addition to the faults in the Constitution that make the removal of a president nearly impossible, the presidential election process is seriously flawed because of the use of an electoral college. There is nothing in the Constitution that allows people to actually choose their president, that ability is bestowed upon the 538 electors of the electoral college47. While usually the results of the electoral college reflect the results of the popular vote, there are obvious election cycles that are an exception to that norm – such as the 2016 presidential election in which Clinton won the popular vote, but Trump won the electoral college, and therefore the presidency48. In fact, in the past five elections, two have resulted in one candidate winning the popular vote and the other candidate winning the electoral college, and in both cases, the winner was a Republican49. The framers instilled the Electoral College in the hopes of diluting any populist influence and ensuring that the President would not be inordinately reliant on Congress. Additionally, the framers wanted to ensure that the larger states would not have an unfair advantage over the small states, which was the justification for the chosen number of electors allotted to each state50. But since 1787, these worries have been debunked and the Electoral College system has eroded into an antiquated and undemocratic election process that desperately needs abolition.
The aforementioned trend points out a number of constitutional flaws. Only a handful of states actually make a difference in a presidential election, which are the so called “swing states” such as Ohio, Pennsylvania, Floria, and a few others depending on the year51. The majority of other states in the country can reliably be categorized as “blue” or “red” states. The swing states are so important in a presidential election because of the winner-takes-all nature of the electoral college, meaning that if a candidate wins an election in a state by even a slim margin, they win all the electoral seats for that state, rather than the proportion of electors equivalent to the percent of popular votes for each candidate52. This can be extremely influential in an election if a candidate wins a notorious swing state like Pennsylvania or Florida, who have 20 and 29 electoral votes, respectively. Since the winner takes all those electoral votes, just one state can make or break an entire election, regardless of the percentage of votes that the candidate actually won in that state. This was the case in 2016 when President Trump won the election, despite Hillary Clinton winning the popular election53. Over the past five elections, the winner of the popular vote has been a Democrat, despite the fact that a Republican has won three of those elections due to the electoral college54. This highlights the second major flaw in the Constitution regarding the presidential election process, which also links to problems in the Senate and the House, which is that the electoral college is not representative of the American populace. Notable critics of the electoral college such as former Attorney General Eric Holder are publicly calling to abolish the electoral college, but this runs into the same issue that plagues the House and the Senate, that any legislation with this goal will likely die in the Senate even if it passes through the House, because there are too many people who benefit from the electoral college that will not stand to see it dissolved55.
Plausibility of Rewriting the United States Constitution
Hopefully the past two sections of this paper have made it abundantly clear that the Constitution does in fact need to be amended in order to serve the needs of twenty-first century Americans, as well as to fend off the modern threats to democracy that the United States faces today. This section will delve into the plausibility of amending or rewriting the Constitution under its rigid constraints. In an anonymous Harvard Law Review article titled, “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Protection,” Anonymous explored the possibility of spitting the District of Columbia into 127 states with the purpose of calling for a Constitutional Convention to amend the Constitution. In the opening paragraph of the article, Anonymous expresses their grievances with the chief executives of the past two decades, writing:
For most of the twenty-first century, the world’s oldest surviving democracy has been led by a chief executive who received fewer votes than his opponent in an election for the position. The first of these executives started a war based on false pretenses that killed hundreds of thousands of civilians. The second — a serial abuser of women who hired as his campaign manager a lobbyist for violent dictatorships — authorized an immigration policy that forcibly separated migrant children from their families and indefinitely detained them in facilities described as “concentration camps56.”
Anonymous clearly identifies their stance on the state of democracy in the twenty-first century, largely attributing the “messiness” to Republican presidents George W. Bush and Donald Trump. The author continues by explaining the profoundly undemocratic Federal Government of the United States, first by observing the flaws of the executive branch and the electoral college, and continuing by criticizing the unrepresentative Senate. Next, Anonymous highlights the fact that American citizens living in DC, Puerto Rico, and other US territories are not represented in Congress or in the Electoral College57. The primary grievances that anonymous intends to tackle in this article are those regarding representation: “The 600,000 residents of Wyoming and the 40,000,000 residents of California should not be represented by the same number of senators. Nor should some citizens get to vote for President, while others do not58.” The two territories that are the most vocal about their desire for statehood are DC and Puerto Rico, because between those two territories reside 4 million citizens who do not receive representation in Congress or the Electoral College59. The problem that the territories run into time and time again is that the proposal to add DC and Puerto Rico as states serves no benefit to the Republicans, and therefore they are unwilling to budge60.
The central argument of this anonymous Harvard Law Review article is this:
Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans61.
Anonymous argues that as radical as their proposition sounds, it is no more radical than the notion that a citizen’s proportional voting power depends entirely on where they live. The elements of the Constitution that this article argues need to be amended mirror those discussed in the previous sections of this paper, namely the obscenely disproportionate Senate, the gerrymandered House, and the antiquated Electoral College. The article argues that the public policy implications of the unrepresentative federal government are reflected in the fact that Congress passes legislation that American people don’t want, and they confirm supreme court justice nominations that people also don’t want, and this is not how democracy is supposed to work62. Anonymous argues that the disconnect between legislation that Americans want and the legislation that Congress passes is usually blamed on the influence of money in politics, and while this is partly true, the misrepresentation of the populace is the less talked about but equally important factor63. The effects of the misrepresentation trickle down to the Supreme Court. Anonymous recounts the example of the death of Justice Scalia, and subsequent refusal of the Republican controlled Senate to hold hearings for candidate Merrick Garland, resulting in the confirmation of two Conservative justices during the following administration64. Continuing on, anonymous specifies the areas where the federal government fails its citizens living in US territories by forcing them to pay taxes yet are not eligible for Supplemental Security Income, among other things. Finally, it is noted that the office of the president went from being a somewhat modest position, to the most powerful office in the world65. These sections can be boiled down to Anonymous’ central argument that the Constitution today is not what the framers intended it to be, and it is time to revise it.
The following section of the article starts with a fantastic analogy to explain the reason it is so difficult to amend the United States Constitution. “For the same reason it is hard for a man to see where he placed his glasses, it is hard for a democracy to fix its political process66.” An example of this concept in action is how D.C. wants to be granted statehood, yet their hands are tied since they have no representation in Congress that would allow them to vote for it. Here is where the article discusses plausibility for amending the Constitution. Under the constraints of Article V, it would be nearly impossible to gain the necessary supermajority. Since Congress can actually admit new states with a simple majority, the notion of admitting 127 new states is technically within the realm of possibility67. The rationale behind creating 127 new states out of D.C. is that since D.C. is not currently a state, they would not need to negotiate with any existing states to dismember. The second reason is that every subdivision of D.C. voted for the Democratic party in the 2016 presidential election, so the members of Congress that would represent those districts would likely be on board to amend the Constitution68. When it comes to the actual amendments the article proposes, they are as follows: “(1) a transfer of the Senate’s duties to a fairly apportioned body; (2) an expansion of the House to ensure that all citizens are represented equally; and (3) a presidential election system by popular vote. A fourth amendment would modify Article V to ensure that this scheme could not be repeated69.”
So how realistic is the proposed solution? According to Malcolm Gladwell and Noah Feldman who discuss the “Pack the Union” in an episode of Noah Feldman’s podcast, “Deep Background with Noah Feldman,” the proposed solution is quite radical, but a more modest version may in fact be within the realm of possibility. Gladwell and Feldman argue that the biggest argument against the anonymous author’s proposition is that it would be a gross violation of our norms, and would go against the core idea of the way the framers intended the Constitution70. Gladwell describes the so-called “modest version” as creating just one state called “Columbia,” using the same proposed methodology, and conserving the area surrounding the key federal government buildings as “D.C.” Feldman agrees that this proposition makes it plausible, but it runs into the classic dilemma where it is predictable which political party the Senators and and representatives will be from, and the opposite party which in this case would be Republicans, would pull out all the stops to prevent it71. Feldman compares the predicament to Israel, who still has not written their own constitution. The Israeli government cannot compromise and draft a constitution because the right wing is worried the left wing will impose individual rights that they disagree with, while the left wing fears that the right will push for a more right wing vision of what the country ought to look like. The only way to do it is to make both sides feel like the other side is making a mistake72. Gladwell and Feldman emphasize that the only way they see any possibility for compromise in the United States government would have to be under the same conditions. If both liberals and conservatives somehow feel like the other side is being duped, those are the conditions under which any agreements may be struck73. Now, the challenge will be to create those conditions when it comes to the discussion of amending the Constitution.
While this example from the Harvard Law Review is clearly far-fetched and unlikely to materialize, it proves that the discussion surrounding Constitutional revision is boiling up and has the potential to make an impact in the future. To circle back to the analogy about the man trying to find where he placed his glasses, the problems that affect the government are the very reason that it would be so difficult to fix them – a vicious cycle one might say. The partisan nature of politics makes it extremely unlikely that the government would be able to cross the aisle and find comprehensive solutions to the deeply rooted issues of the Constitution. And if by some measure a Constitutional Convention were to occur, it would be a chaotic endeavor to say the least, and would likely lead to deadlock. What would be included in a new Constitution? Which amendments would be added to the current Constitution, and which would be abolished? The hypotheticals are endless, but the main point remains that the United States Constitution was never intended to last into 2020, and it no longer serves its citizens.
Anonymous. (2020) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation. Harvard Law Review. https://harvardlawreview.org/2020/01/pack-the-union-a-proposal-to-admit-new-states-for-the-purpose-of-amending-the-constitution-to-ensure-equal-representation/
Baas, L. (1979). The Constitution as Symbol: The Interpersonal Sources of Meaning of a Secondary Symbol. American Journal of Political Science, 23(1), 101-120. doi:10.2307/2110774
Bouie, J., (2019). The Electoral College is the Greatest Threat to Our Democracy. The New York Times. https://www.nytimes.com/2019/02/28/opinion/the-electoral-college.html
Diamond, J. (2014). Four Threats to American Democracy. Governance, 27(2), 185-189.
Feldman, N., & Gladwell, M. (2020, February 12). Malcolm Gladwell and “Magical Technical Fixes.” https://www.stitcher.com/podcast/pushkin-industries/deep-background-with-noah-feldman/e/67284657
Gallup. (2020) Presidential Approval Ratings — Donald Trump. Gallup. https://news.gallup.com/poll/203198/presidential-approval-ratings-donald-trump.aspx
Ginsburg, Thomas, Elkins, Zachary, & Melton, James. (2009). The lifespan of written constitutions. The Law School Record, 55(2), 17.
Jefferson, T. (1789). Thomas Jefferson to James Madison. The Papers of Thomas Jefferson, 15, 392–398.
Kinkopf, N. & Whittington, K. (n.d.). Article II, Section 4. Interactive Constitution https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/349.
Klein, E. (2018, October 26). Democrats need to get serious on statehood for DC and Puerto Rico. Vox. https://www.vox.com/policy-and-politics/2018/10/26/18024542/dc-puerto-rico-statehood-senate-democracy
Lerner, M. (1937). Constitution and court as symbols. Yale Law Journal, 46, 1290-1319.
Levinson, Sanford. (2011). So much to rewrite, so little time…. Constitutional Commentary, 27(3), 515.
Levinson, S. (2019). The Constitution Is the Crisis. The Atlantic. https://www.theatlantic.com/ideas/archive/2019/10/the-constitution-is-the-crisis/598435/
Liptak, A. (2019). Supreme Court Bars Challenges to Partisan Gerrymandering. The New York Times. https://www.nytimes.com/2019/06/27/us/politics/supreme-court-gerrymandering.html
Mascaro, L., Jalonick, M.C., & Tucker, E. (2020) Not guilty: Senate acquits Trump of Impeachment Charges. The Associated Press. https://apnews.com/93c85dcfb0e6b2185391965e77ebea51
Obama, B. (2009). The Audacity of Hope: Thoughts on Reclaiming the American Dream. Bath: Paragon.
Prokop, A., (2016). Why the Electoral College is the Absolute Worst, Explained. Vox. https://www.vox.com/policy-and-politics/2016/11/7/12315574/electoral-college-explained-presidential-elections-2016
Savage, C. (2019). How the Impeachment Process Works. The New York Times. https://www.nytimes.com/2019/09/24/us/politics/impeachment-trump-explained.html
Schoenbachler, M. (2017). Madison’s Hand: Revising the Constitutional Convention/Humboldt and Jefferson: A Transatlantic Friendship of the Enlightenment. Presidential Studies Quarterly, 47(1), 204-206.
Seidman, L. (2014). The Secret History of American Constitutional Skepticism: A Recovery and Preliminary Evaluation. University of Pennsylvania Journal of Constitutional Law, 17, 1-1515.
Seitz-Wald, A. (2013). The U.S. Needs a New Constitution-Here’s How to Write It. The Atlantic. https://www.theatlantic.com/politics/archive/2013/11/the-us-needs-a-new-constitution-heres-how-to-write-it/281090/
The Constitution of the United States. (1788). National Archives. https://www.archives.gov/founding-docs/constitution
The Editors of Encyclopaedia Britannica. (2019, August 28). Constitutional Convention. Encyclopaedia Britannica. https://www.britannica.com/event/Constitutional-Convention, paragraph 1.
Tikkanen, A., (2017). United States Presidential Election Results. Encyclopaedia Britannica. https://www.britannica.com/topic/United-States-Presidential-Election-Results-1788863.
Toobin, J. (2013). Our Broken Constitution. The New York Times. https://www.newyorker.com/magazine/2013/12/09/our-broken-constitution
Trickey, E. (2017, July 20). Where Did the Term “Gerrymander” Come From? Smithsonian Magazine. https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118
U.S. Census Bureau (2020). State Population Totals: 2010-2019. United States Census Bureau https://www.census.gov/data/datasets/time-series/demo/popest/2010s-state-total.html.
Wines, M. (2019). What is Gerrymandering? And Why did the Supreme Court Rule on it? The New York Times. https://www.nytimes.com/2019/06/27/us/what-is-gerrymandering.html
1.) Jefferson, T. (1789). Thomas Jefferson to James Madison. The Papers of Thomas Jefferson, 15, 392–398
2.) Toobin, J. (2013). Our Broken Constitution. The New York Times. https://www.newyorker.com/magazine/2013/12/09/our-broken-constitution, paragraph 1.
3.) The Editors of Encyclopaedia Britannica, Constitutional Convention, paragraph 1.
4.) Diamond, J. (2014). Four Threats to American Democracy. Governance, 27(2), 185-189.
5.) The Constitution of the United States. (1788). National Archives. https://www.archives.gov/founding-docs/constitution.
6.) Ginsburg, T., Elkins, Z., & Melton, J. (2009). The lifespan of written constitutions. The Law School Record, 55(2), 17.
7.) Lerner, M. (1937). Constitution and Court as Symbols. Yale Law Journal, 46, p. 1291.
8.) Lerner, Constitution and Court as Symbols, p. 1291.
9.) Ginsburg, Elkins, & Melton, The lifespan of written constitutions.
10.) Ginsburg, Elkins, & Melton, The lifespan of written constitutions.
11.) Obama, B. (2009). The Audacity of Hope: Thoughts on Reclaiming the American Dream. Bath: Paragon.
12.) Toobin, J. (2013). Our Broken Constitution. The New York Times. https://www.newyorker.com/magazine/2013/12/09/our-broken-constitution.
13.) Toobin, Our Broken Constitution.
14.) Toobin, Our Broken Constitution.
15.) Toobin, Our Broken Constitution.
16.) Toobin, Our Broken Constitution.
17.) Toobin, Our Broken Constitution.
18.) U.S. Census Bureau (2020). State Population Totals: 2010-2019. United States Census Bureau. https://www.census.gov/data/datasets/time-series/demo/popest/2010s-state-total.html.
19.) Levinson, S. (2019). The Constitution Is the Crisis. The Atlantic. https://www.theatlantic.com/ideas/archive/2019/10/the-constitution-is-the-crisis/598435/
20.) Toobin, Our Broken Constitution.
21.) Toobin, Our Broken Constitution.
22.) Toobin, Our Broken Constitution.
23.) Toobin, Our Broken Constitution.
24.) Toobin, Our Broken Constitution.
25.) Toobin, Our Broken Constitution.
26.) Toobin, Our Broken Constitution.
27.) Toobin, Our Broken Constitution.
28.) Toobin, Our Broken Constitution.
29.) Toobin, Our Broken Constitution.
30.) Toobin, Our Broken Constitution.
31.) Trickey, E. (2017, July 20). Where Did the Term “Gerrymander” Come From? Smithsonian Magazine. https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/
32.) Liptak, A. (2019). Supreme Court Bars Challenges to Partisan Gerrymandering. The New York Times. https://www.nytimes.com/2019/06/27/us/politics/supreme-court-gerrymandering.html
33.) Liptak, Supreme Court Bars Challenges to Partisan Gerrymandering.
34.) Liptak, Supreme Court Bars Challenges to Partisan Gerrymandering.
35.) Wines, M. (2019). What is Gerrymandering? And Why did the Supreme Court Rule on it? The New York Times. https://www.nytimes.com/2019/06/27/us/what-is-gerrymandering.html
36.) Wines, What is Gerrymandering? And Why did the Supreme Court Rule on it?
37.) Wines, What is Gerrymandering? And Why did the Supreme Court Rule on it?
38.) Liptak, Supreme Court Bars Challenges to Partisan Gerrymandering.
39.) Feldman, N., & Gladwell, M. (2020, February 12). Malcolm Gladwell and “Magical Technical Fixes.” Deep Background with Noah Feldman. https://www.stitcher.com/podcast/pushkin-industries/deep-background-with-noah-feldman/e/67284657
40.) Feldman & Gladwell, Malcolm Gladwell and “Magical Technical Fixes.”
41.) Kinkopf, N. & Whittington, K. (n.d.). Article II, Section 4. Interactive Constitution https://constitutioncenter.org/interactive-constitution/interpretation/article-ii/clauses/349.
42.) Kinkopf & Whittington, Article II, Section 4.
43.) Kinkopf & Whittington, Article II, Section 4.
44.) Savage, C. (2019). How the Impeachment Process Works. The New York Times. https://www.nytimes.com/2019/09/24/us/politics/impeachment-trump-explained.html
45.) Mascaro, L., Jalonick, M.C., & Tucker, E. (2020) Not guilty: Senate acquits Trump of Impeachment Charges. The Associated Press. https://apnews.com/93c85dcfb0e6b2185391965e77ebea51
46.) 40.) Gallup. (2020) Presidential Approval Ratings — Donald Trump. Gallup. https://news.gallup.com/poll/203198/presidential-approval-ratings-donald-trump.aspx
47.) Prokop, A., (2016). Why the Electoral College is the Absolute Worst, Explained. Vox. https://www.vox.com/policy-and-politics/2016/11/7/12315574/electoral-college-explained-presidential-elections-2016
48.) Prokop, Why the Electoral College is the Absolute Worst, Explained.
49.) Prokop, Why the Electoral College is the Absolute Worst, Explained.
50.) Anonymous. (2020) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation. Harvard Law Review. https://harvardlawreview.org/2020/01/pack-the-union-a-proposal-to-admit-new-states-for-the-purpose-of-amending-the-constitution-to-ensure-equal-representation/
51.) Prokop, Why the Electoral College is the Absolute Worst, Explained.
52.) Prokop, Why the Electoral College is the Absolute Worst, Explained.
53.) Prokop, Why the Electoral College is the Absolute Worst, Explained.
54.) Tikkanen, A., (2017). United States Presidential Election Results. Encyclopaedia Britannica. https://www.britannica.com/topic/United-States-Presidential-Election-Results-1788863.
55.) Bouie, J., (2019). The Electoral College is the Greatest Threat to Our Democracy. The New York Times. https://www.nytimes.com/2019/02/28/opinion/the-electoral-college.html
56.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
57.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
58.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
59.) Klein, E. (2018, October 26). Democrats need to get serious on statehood for DC and Puerto Rico. Vox. https://www.vox.com/policy-and-politics/2018/10/26/18024542/dc-puerto-rico-statehood-senate-democracy
60.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
61.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
62.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
63.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
64.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
65.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
66.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
67.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
68.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
69.) Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.
70.) Feldman & Gladwell, Malcolm Gladwell and “Magical Technical Fixes.”
71.) Feldman & Gladwell, Malcolm Gladwell and “Magical Technical Fixes.”
72.) Feldman & Gladwell, Malcolm Gladwell and “Magical Technical Fixes.”
73.) Feldman & Gladwell, Malcolm Gladwell and “Magical Technical Fixes.”