The U.S. Needs a New Constitution—Here's How to Write It

Let's face it: What worked well 224 years ago is no longer the best we can do.
Richard A. Bloom/National Journal

America, we've got some bad news: Our Constitution isn't going to make it. It's had 224 years of commendable, often glorious service, but there's a time for everything, and the government shutdown and permanent-crisis governance signal that it's time to think about moving on. "No society can make a perpetual constitution," Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. "The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years." By that calculation, we're more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn't pretty.

If men (and, finally, women) as wise as Jefferson and Madison set about the task of writing a constitution in 2013, it would look little like the one we have now. Americans today can't agree on anything about Washington except that they want to "blow up the place," in the words of former Republican Senator George Voinovich as he left Congress, and maybe that thought isn't so radical.

Clocking in at some 4,500 words—about the same length as the screenplay for an episode of Two and a Half Men—and without serious modification since 18-year-olds got the vote in 1971, the Constitution simply isn't cut out for 21st-century governance. It's full of holes, only some of which have been patched; it guarantees gridlock; and it's virtually impossible to change. "It gets close to a failing grade in terms of 21st-century notions on democratic theory," says University of Texas law professor Sanford Levinson, part of the growing cadre of legal scholars who say the time has come for a new constitutional convention.

Put simply, we've learned a lot since 1787. What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science. More than 700 constitutions have been composed since World War II alone, and other countries have solved the very problems that cripple us today. It seems un-American to look abroad for ways to change our sacred text, but the world's nations copied us, so why not learn from them?

No Longer a Model

Supreme Court Justice Ruth Bader Ginsburg was pilloried when she told Egyptian revolutionaries last year that she "would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012." But her sentiment is taken for granted by anyone who has actually tried to write a constitution since politicians stopped wearing powdered wigs. "Our Constitution really has been a steady force guiding us and has been perhaps the most stable in the world," says Louis Aucoin, who has helped draft constitutions in Cambodia, East Timor, Kosovo, Rwanda, and elsewhere while working with the U.N. and other groups. "But the disadvantage to the stability is that it's old, and there are things that more-modern constitutions address more clearly."

Almost nobody uses the U.S. Constitution as a model—not even Americans. When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forebear, has two houses. But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse.

The story was largely the same in defeated Nazi Germany, and more recently in Iraq and Afghanistan, which all emerged from American occupation with constitutions that look little like the one Madison and the other framers wrote. They have the same democratic values, sure, but different ways of realizing them. According to researchers who analyzed all 729 constitutions adopted between 1946 and 2006, the U.S. Constitution is rarely used as a model. What's more, "the American example is being rejected to an even greater extent by America's allies than by the global community at large," write David Law of Washington University and Mila Versteeg of the University of Virginia.

That's a not a fluke. The American system was designed with plenty of checks and balances, but the Founders assumed the elites elected to Congress would sort things out. They didn't plan for the political parties that emerged almost immediately after ratification, and they certainly didn't plan for Ted Cruz. And factionalism isn't the only problem. Belgium, a country whose ethnic divisions make our partisan sparring look like a thumb war, was unable to form a governing coalition for 589 days in 2010 and 2011. Nevertheless, the government stayed open and fulfilled its duties almost without interruption, thanks to a smarter institutional arrangement.

As the famed Spanish political scientist Juan Linz wrote in an influential 1990 essay, dysfunction, trending toward constitutional breakdown, is baked into our DNA. Any system that gives equally strong claims of democratic legitimacy to both the legislature and the president, while also allowing each to be controlled by people with fundamentally different agendas, is doomed to fail. America has muddled through thus far by compromise, but what happens when the sides no longer wish to compromise? "No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people," Linz wrote.

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Alex Seitz-Wald is a reporter for National Journal

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