Saturday, November 25, 2017

What's next for the U.S. Constitution?

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Monday marked the 225th anniversary of the Constitution of the United States, publicly unveiled in Philadelphia amid considerable fanfare. As Americans think back on the last two and a quarter centuries, we should also think ahead by the same amount. What will and what should the Constitution look like 200 years hence? Or if that seems too mind-bendingly futuristic, what will and should it look like in 2020 or 2121?

The most powerful portents of the future are to be found in America's existing state constitutions, the proverbial laboratories of American democracy. These 50 documents have converged to form a distinctly American model of governance — call it "American exceptionalism," if you like. For example, unlike the regimes in various democratic countries around the world — England, Germany, France, Israel, India, Australia — almost all 50 states follow the same basic formula, featuring ratified written constitutions, bicameral legislatures, chief executives who look remarkably like mini-presidents and robust bills of rights enforceable in ordinary courtrooms.

Indeed, the Philadelphia Constitution of 1787 to which we wish happy birthday was itself built upon state constitutional templates. Various elements of judicial independence drew upon state antecedents, as did the U.S. Constitution's basic commitment to trial by jury.

So much for the past 225 years. Let's now think about the next two centuries. How could we spruce up our founding documents based on changes the states have made to theirs?

Many states have term limits for state legislators and also allow voters to recall corrupt or incompetent state lawmakers in certain situations. This invites us to think hard about whether the federal Constitution should provide similar checks against Congress. Or consider the fact that no state has an upper house in which each county has two seats, regardless of population. Perhaps the Senate could be changed to be more proportionate. Consider also the way that the states elect governors — directly by the voters, one person, one vote. If the federal Electoral College is so good, why does no state closely follow it? Let's scrap it. And if naturalized Americans like California's Arnold Schwarzenegger and Michigan's Jennifer Granholm can be trusted to serve as governors, why not amend the federal Constitution to allow them to run for president?

Amendment-minded Americans should imagine ourselves today as representatives of 22nd-century posterity, tasked with the challenge of framing just rules for that society. As modern American constitutionalists focus obsessively on the deeds and words of 225 years ago, shouldn't we spend at least some time thinking about what we want two centuries into the future? Much of American constitutional law remains to be written.

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