- New Year's Day, 2022 (Updated Oct. 28, 2022)
If you feel the same way I do, you’re worried about the future of democracy and wondering what life will be like in this country if our government falls into the hands of an autocratic regime.
As unfathomable as that sounded only a few years ago, it’s now a very real prospect with democracy on the edge of collapse. When Donald Trump took office in 2016 and began exploiting every weakness in our system of checks & balances, ignoring the rule of law, and trampling ethical norms that have been our guard rails for nearly 250 years, I realized that I will probably not live long enough to see that pendulum swing back to something that most adult Americans remember as “normal”.
I’ve tried to keep a sense of humor about it. In 2021, I relocated from the “herd stupidity” of Texas to the more sensible atmosphere in Denver, Colorado. Recalling the scene in Ghostbusters when the city inspector opened the containment tank and released all the spooks, we are seemingly unable to reverse the growing trends in social media, cable news, and bigoted public discourse. Unable to contain them or squelch them, we’ve seen the radicalization of youngsters, Q-anon followers, underground hate groups and even political leaders who pledge their fealty to their “base”. My conscience doesn’t allow me to remain silent, mind my own business and reconcile the fact that it doesn’t affect me personally as much as it will for my children and grandkids … so I’ve decided to go public with this essay about how, in my opinion, there’s only one way to fix things. How? By updating the Constitution.
Let’s pause here for a moment. If you’re among those who are quick to conclude: “that will never happen” let me just say that I hear you, I get it, and undeniably you may be right. But I’ll remind you that many other things that never before happened did happen and the word “unprecedented” no longer has the shock value it had before 2015. Consider this list of things we believed, with good reason, could never happen:
- A person would be elected president who had never before been elected to any local, state, or federal office, nor ever held a position in any government agency.
- Glaciers would melt and 40+ years of scientific consensus would be ignored
- The emoluments clause in our Constitution would be disregarded, along with all visible, material and quantifiable consequences of doing so.
- A president could shamelessly lie to the nation nearly 30,000 times without consequence.
- Two impeachment trials within the space of 13 months would fail to convict and remove a president from office because partisans in the Congress placed their own hypocritical, political self-interests ahead of the truth and the national interest.
- Nepotism and national security were disregarded and formal nominations circumvented by the routine appointment of “active” cabinet and other officials.
- Traditions and rules in the U.S. Senate would be swept aside to make possible whatever political goal satisfies the ambitions of self-serving members for more power.
- Gun violence would penetrate the hallways of schools, churches, theaters and public places while the overwhelming popular support for reasonable controls is out-maneuvered by the Congress’s devotion to the gun lobby.
- Efforts to cleverly suppress the votes of non-white and poor citizens are no longer disguised by cleverly written policies and laws; instead they are hidden in plain sight.
- Although 5 of every 6 citizens support the rights women earned 50 years ago in the Roe v. Wade decision, the Congress, too many state legislatures and even SCOTUS itself appear to be determined to turn a blind eye to any states that deny Constitutional rights based on nonsensical concepts like “fetal personhood”. The Dobbs decision opened the door to more reversals of other individual rights.
Let me repeat a point I heard recently on Al Franken’s podcast interview of Dalia Lithwick, a well-respected journalist whose focus on the Supreme Court is her career specialty. Ms. Lithwick urged that we not be so consumed by the abortion issue that we fail to see how it is only a symptom, indeed a very alarming one, of a more egregious weakness in our political system: the increasing influence of minority rule. For each of the causes Ms. Lithwick cited, it’s obvious to me that all three branches of our national government (as well as state legislatures, too) have been weakened and compromised because powerful minorities have exploited a structural vulnerability to manipulation.
Moreover, we can add to this list the obvious efforts being made in dozens of states to not only suppress voting by making it difficult, impossible, or by threatening people to exercise their franchise … but going even farther by installing partisan officials — many of whom have made no secret of their belief that the 2020 election was stolen — into positions of power that have historically expected or demanded neutrality and adherence to the rule of law. And because precedent may not be enough to guarantee minority victories in future elections, legislatures are now empowering themselves to discard electoral results and choose the winner they prefer.
While the focus of all this suppression has been on the presidency, few people seem to realize, at least in public, that those same alleged fraudulent ballots also awarded House and Senate seats to more Republicans than Democrats. How is a ballot fraudulent only on the first line where the President and Vice-president are chosen? To be clear, the January 6, 2021 insurrection appears in hindsight to have been a dress rehearsal for the chaos we can expect in November 2022 and thereafter.
The Executive Branch depends on victory in the Electoral College, a system seen in no other country on Earth. While political scientists have debated the merits and drawbacks of a system devised 240 years ago when voters were considered incapable of making intelligent choices, recent years have funneled campaign resources into a tiny handful of “battleground” states while disregarding any margins of victory in states where the outcome is all but certain in advance. Nearly 4.5 million California Republican votes exceed the population of half the states in our country, but they were not enough to win a single California electoral college vote for Donald Trump in 2016. Then, during his presidency, he short-changed millions of the state’s citizens by labeling California a “blue state” not deserving either his concern or much needed Federal funding. We’ve seen two elections in two recent decades in which the electoral college winner lost the popular vote. More than a century ago, the 17th Amendment provided for the direct election of Senators, yet we continue to deny the majority of voters their collective choice of the President and Vice-president by perpetuating the Electoral College, a mechanism that makes minority rule possible.
The Judicial Branch is also a victim of minority rule. A recent change to the filibuster rule in the Senate made it possible for Supreme Court nominees to be confirmed by a simple majority instead of the higher threshold that previously required at least a small number of affirmative votes from the party not in power. Gone are the days when SCOTUS appointments received the overwhelming bipartisan support of the U.S. Senate in its advise & consent role under the Constitution. The phrase “elections have consequences” no longer applies unless the majority party in the Senate is of the same party as the Executive. It has been 27 years since a SCOTUS nominee was confirmed with 80 or more votes. Until 1994 it was quite common, except in the case of Clarence Thomas: Breyer (87-9), Ginsburg (96-3), Souter (90-9), Kennedy (97-0), Scalia (98-0), O’Connor (99-0), Stevens (98-0), Powell (89-1), Blackmun (94-0).
The confirmation process has become a public spectacle, with nominees rehearsed for their hearings by partisans who have mastered the theatrical nature of the hearings. All three of the most recent SCOTUS nominees were pre-cleared by the Federalist Society; then nominated by a president who admitted that the abortion litmus test would be determinative in his selection. As we have seen in recent weeks, public statements about “settled law” and “stare decisis”, made under oath by nominees in their confirmation hearings, were made with fingers crossed behind their backs. It’s more of a shock than a surprise to anyone whose faith in the integrity of the Supreme Court has been forever constant and unshaken.
Not as visible to the public, and perhaps with greater long-term impact on the nation’s well-being is the long list of lifetime appointments made by a President whose party controls not only the Senate but also its calendar and rules.
The Legislative Branch is increasingly struggling under the weight of minority rule. After many decades of representation in the House of Representatives that reasonably reflected the constituencies in each district, the minority party has succeeded in gerrymandering enough districts to guarantee that the winner of their primary will also be the winner of the general election. As has been reported so often, House members are now choosing their voters instead of the voters choosing their Representative. And because the same gerrymandering is also working at the state level, when the decennial Census count is also under-counting people who are encouraged by fear-tactics to not report, the imbalance gets increasingly worse in its favor of minority rule.
The United States Senate was conceived in the 18th century to give equal standing to each of the 13 states. As already mentioned, voters did not choose their U.S. Senators until 1913. In the first U.S. Census in 1790, no state had less than 1.5% of the total U.S. population and only one state (Virginia) had more than 18%. Notably, of the 6 states with more than 6% of the population, 5 of them had slave populations that exceeded 25% of their state populations. Therefore, it is safe to conclude that the founders did not foresee either the emancipation of slaves 75 years later or the consequential demographic changes that would result from their freedom. In 1789, the Senate representation of 2 Senators per state was reasonably equal to the population, or equal enough to give the Senate the deliberative character intended by the founders.
Today, however, the situation is quite different. 25% of the states have populations greater than 10 million people. Fifteen states with 2 senators have populations smaller than Brooklyn, New York. There are 31 cities and more than 100 counties in the United States (including the District of Columbia) with populations greater than the entire state of Wyoming which itself has 23 counties, the largest of which has a population of only 100,000 people.
The arithmetic alone should be compelling enough to make the case for reform of Senate representation. But the most common opposition to change rests on concepts like “tradition” or reverence for the wisdom and intent of the founders, all of whom died two centuries ago and can neither testify to nor reconsider their philosophy on this subject. For as long as anyone now alive can remember, we have been admonished to not change long-standing rules by an adherence to “originalism.”
So, let’s consider two examples from the world of sports where long-standing rules have been successfully adjusted to conform to modern times:
Major League Baseball adopted the designated hitter rule in 1973. Controversial at the time, it was limited to the American League teams and required various adaptations to those rules for World Series, All-Star, Inter-league and exhibition games, as well as various awards. The DH was introduced into National League play in 2022, 49 years after its first use in the American League. What does this prove? Time-honored traditions and rules can be subject to change, albeit slow and cautious.
The NBA (National Basketball Association) experimented with the 3-point “field goal” as long ago as 1945. Until then, points were only awarded for field goals (2 points) and free throws (1 point). Not until 1979 did the NBA adopt its new rule for a 1-year trial. In 1986 it was adopted by the NCAA for college play. Rules defining distances have changed from time to time, but the 3-point field goal rule is credited with creating more fan interest and excitement in the game and its players.
Similar changes have been attempted and/or introduced in lacrosse, soccer, and hockey. The important conclusion we can draw from these sports analogies is that the public has shown its willingness to debate such controversial rule changes and eventually accept them as an expression of progress.
State Legislatures are not immune from the consequences of minority rule, in fact they have been the cornerstone of plans to exploit weaknesses in a system of government that was created to rely on fairness. Districts drawn to favor the minority party and peculiar rules designed to guarantee the passing of unpopular legislation have had a pernicious effect on our society.
When you consider that a Constitutional Amendment must be ratified, after passage by Congress, by three-fourths of the States it is no wonder that the Equal Rights Amendment never became law. First proposed in 1923, it was introduced again and passed by the House in 1971; the Senate then passed it in 1972.
The Equal Rights Amendment died in 1979 and although Congress tried to extend the deadline, it never succeeded. It has been 50 years since any new Amendment was introduced, passed and ratified. The 26th Amendment gave the right to vote in 1971 to 18-year old citizens when Richard Nixon, perhaps influenced by the Vietnam War casualties or the 1972 election cycle or both, proposed it and saw it ratified only 4 months later. Oddly, the 27th Amendment (Congressional salaries) was ratified in 1991, 202 years after it was first proposed!
Will there ever be another Constitutional Amendment that can be approved by 38 states? Not likely. The 2020 election was found by experts to have been the most secure and fair election in U.S. History. Will there ever be a future election that is insulated from bogus accusations of “fake news” and “voter fraud”.? Certainly not, because the lesson learned from Donald Trump is that a big lie, perpetrated on an under-informed public, can wound and disable the winner to such an extent that the loser’s prospects in the next election cycle are enhanced.
The case for upgrades
I first began thinking about the need for upgrading the Constitution in 2012 when the NoLabels movement solicited ideas in support of their campaign to reform Congress by proposing new rules for the national legislature and thereby break the gridlock. My theory at that time was based on two assertions of my own:
- That the founders, no matter how brilliant and prescient they may have been, could not have been visionary enough to foresee many of the conditions of 21st century life that now render many parts of the Constitution and its Bill of Rights anachronistic.
- That the American public is sufficiently familiar with upgrades to many aspects of modern life, from their kitchens to their cars to their computers and obviously the software and technology that keep all those assets running well. People periodically update legal documents such as their Last Will & Testament. Other legal documents like leases and licenses expire at the end of a pre-defined term and may then be renewable. The concept is familiar and well-accepted.
More about the ordinary rationale for upgrading the Constitution will be discussed later. For now, we are faced with an extraordinary, more compelling reason: the imminent threat of violent revolution.
One need only look across the Atlantic to recall the history of France and its several Constitutions, the most recent one introduced by Charles deGaulle in 1958.
What brought about the French Revolution at the end of the 18th century? Two decades of poor harvests, drought, cattle disease and skyrocketing bread prices kindled unrest among peasants and the urban poor. Many expressed desperation and resentment toward a regime that imposed heavy taxes — yet failed to provide any relief — by rioting, looting and striking. Is that so different from the current American conditions of climate change, COVID-19, income inequality, high cost-of-living, student debt, racial injustice, opioid addiction, prescription drug prices, immigration issues, fossil fuel dependency, tax loopholes and falsehoods spread on social media? I think not.
To understand why violent revolution is a real possibility in the United States, we must take a careful look back at Donald Trump’s rise to power and the consequences of the actions he took - and failed to take - while serving as President.
As someone who grew up in Jamaica, Queens and lived and worked in the New York metro area until 1993, I consider myself qualified to have certain insights into Trump’s personality profile. Not because I lived on Wareham Place, only yards away from his home on Midland Parkway. Not because of the incident reported in Trump Revealed by Michael Kranish of the Washington Post. Not because we both attended Kew-Forest School, as did Donald’s four siblings, and where Fred Trump was a member of the Board of Trustees even long after Donald was expelled in 1959.
Rather, it’s because I remember what it was like to be a youngster in Queens, growing up in the same upper-middle class neighborhood as the Trumps, attending the same private K-12 school as the Trump children, and as a young adult taking notice of Trump’s notoriety in Manhattan and Atlantic City with his yachts, airline, casinos, hotels, and of course, his bankruptcies too.
While nobody who knew me then would ever suggest that I behaved as a bully, I certainly had my confrontation experiences with boys older, bigger, and more brazen than I had the guts to be. The phrase I recall most vividly was “I dare you” which any bully knew would give him the unfair advantage in any confrontation. To accept any dare was to risk a fist-fight and a beating. Since 2015, Donald Trump has dared Americans and our institutions to corral or defy him; time after time, the bully has prevailed.
Years later, Donald Trump became a client and disciple of Roy Cohn, whose tactics in any contest with government were expressed without the words “I dare you.” Nevertheless he achieved the same result. Until his disbarment, Cohn got what he wanted by daring the government to enforce its decisions, whether to collect taxes owed or compel Cohn to adhere to a court’s order. Trump learned well from Cohn, not only to challenge the authority of the government but also to avoid finality by manipulating court rules and schedules and by making matters so expensive for his adversaries that they capitulated by either dropping their lawsuits altogether or accepting a settlement far less than what they might have won in Court. Losing a contest in Court and being the subject of an order requiring payment to the prevailing party, Trump learned from Cohn a tactic similar to “I dare you.” You expect me to pay you? “Make me,” he would respond, requiring the prevailing party to go back to court, time and again, to compel compliance.
I can’t see inside Trump’s brain, but having listened to his bluff and bravado for many years and having been the CEO of my own company, I am reasonably certain that Trump went to Washington in 2016-2017 expecting Congress to be as subservient as Trump Organization employees. Owners of their own private enterprise where there is not a functioning Board of Directors expect that everyone beneath them in the org chart will follow orders and obey their boss at the risk of being fired. Without the ability to actually fire those members of Congress who had the temerity to challenge his POTUS authority, Trump quickly learned to instead use Social Media to achieve the same result. Within the Executive branch, the examples of Reince Priebus, Jeff Sessions, Sean Spicer and Rex Tillerson were not lost on me. I will never understand why men in positions of great power — to wit Paul Ryan and Mitch McConnell — surrendered the power of their offices and caucuses to the stupidity and evil of a person they knew very well to be under the influence of Vladimir Putin. The only explanation is the seductive nature of power.
After the election of 2012, at a time when I was a Texas resident, I came face-to-face with the profound antagonism toward Hillary Clinton especially after the Benghazi hearings. My reason for voting for Obama in 2008 after weighing the negatives, was my feeling that he was the least negative of the three candidates. Sara Palin was the worst possible option, as much as I admired McCain. Obama lacked executive experience but I feared that if Clinton won she would take office with half the country already despising her. I wanted unity, and with the optimism about Obama I shared with many other citizens, I expected that the election of the first black president would be the beginning of a new era of harmony.
I could not have foreseen the emergence of the Tea Party, but I am convinced now, in hindsight, that Donald Trump saw the Tea Party as a leaderless mob that would buy his bullshit, if only he could merchandise it to them the same way he had already sold Trump University and so many other Trump-branded product failures, including casino-hotels in Atlantic City. Another thing I learned the hard way as a Texas voter was that people outside New York and New Jersey only knew Trump from his reality TV game show and they gullibly consumed the myth about his business success.
When friends, colleagues or clients would say to me: “I can’t stand Hillary Clinton, but Trump is a great business-man and that’s what this country needs.” … I lacked the persuasive ability to disprove that myth. Even today, those people are fastened to their beliefs as if with Super Glue. Or should I say Krazy Glue?
Several years ago, when Peter Sagal (of “Wait, Wait, Don’t Tell Me” on NPR) was touring the USA by motorcycle and conducting educational events about the Constitution, I tried to contact him to discuss this idea. I failed to get a response. Sagal's 2013 video series is now available on PBS. Nine years ago; who knew? Maybe I should try again?
Have you ever heard the term “Reichstag moment” ? It made headlines recently when it was reported that Joint Chiefs Chairman Mark Milley told his aides, shortly before the January 6 attack on the Capitol, that he feared such a moment according to the recent Carol Leonnig & Philip Rucker book I Alone Can Fix It because Donald Trump was preaching “the gospel of the Führer”. In 1933, only 4 weeks after Adolf Hitler was sworn in as Germany’s Chancellor, the Reichstag building (home of the German parliament in Berlin) was set on fire. A communist was arrested along with other Communist party leaders. Civil liberties were suspended and there were mass arrests of communists, including all those who served as delegates in the Parliament. As a result, the Nazi party achieved a majority and Hitler consolidated his power. Today, historians believe that the arson was planned and ordered by the Nazis as a false flag operation. One of Trump's recent social media posts included a photo of the Capitol in flames Sound familiar?
The Congress wasn’t set ablaze on Jan. 6, 2021 but the attempt to interfere with the certification of the Electoral College results had the same goal: overturn the election and install Führer Trump as president for a second term. The mob’s desire to capture Nancy Pelosi and hang VP Mike Pence, their destruction of the building’s property and architecture and the injuries and death caused to the Capitol police may have been part of a detailed plan or just a mob-gone-wild. We may eventually learn who was responsible and what their plans actually consisted of. With that event in the past, what should concern us more is: how to prevent a second attempted coup that could succeed where the Jan. 6 event failed? What can be done to suppress the violence and rage that has its roots in the misinformation still being spread on social media and on Fox-TV by those whose fealty to someone with autocratic aspirations is no longer merely a suspicion.
It’s been exposed by all of Trump’s actions during his presidency, among them:
- Disregard for Constitutional prohibition of emoluments
- Failure to produce any tax returns
- Coziness with foreign dictators in Russia, Korea, Hungary, Turkey, Brazil and elsewhere
- Nepotism (Mr. & Mrs. Kushner)
- Dog-whistles turned bullhorns to incite extremists to express and act out their bigotry with violence and condone their racist behavior
- Meetings with Russian and Korean dictators without assistants or stenographers present to observe and record the conversations
- Self-dealing, i.e. requiring Secret Service to pay for housing at Trump properties at premium rates, including Mar-A-Lago; income from Trump Hotel events in Washington DC, including the Inaugural fund-raising and other events there.
- Cabinet and agency appointments to “acting” positions to circumvent ordinary Senate procedures for advise and consent
- Disregard of the rule of law, judges and our customary checks and balances
- Efforts to tilt the 2020 election in his favor beginning with the Ukraine scandal that resulted in the first impeachment trial
- Efforts during the 2020 election cycle to suppress votes for Democratic candidates, including crippling the Postal Service and otherwise disenfranchising those who would legally vote by mail or use drop-boxes
- The non-stop stream of harmful bullshit emanating from the White House podium at a time when millions of Americans were suffering from a new coronavirus
- Refusal to concede the election to President-elect Biden
- Perpetuation of the “Big Lie” about voter fraud in dozens of recounts, audits and courtroom challenges, none of which proved that anything fraudulent had occurred
- Illegal attempts to overturn the Georgia election results
- Oval Office meetings in December 2020/January 2021 to persuade Mike Pence to disqualify electors from several states and otherwise prepare for a Jan. 6 rally
- Pardons of allies already convicted of crimes from which Trump himself was shielded by the DOJ memo protecting POTUS from indictment while in office
- Post-election personnel changes in Departments of Justice and Defense
- Actions and inactions on January 6, 2021 (as detailed by the Select Committee)
Only recently, Republican members of Congress (loyal to Trump, of course) gave life to the rumor that upon winning back a majority in the House of Representatives in November, 2022 they will proceed to elect Donald Trump the Speaker. Of course, the immediate reaction by pundits and journalists was “that will never happen” to which I say: I thought we stopped believing that unprecedented things will never happen. The fact is that it can happen and I can imagine a scenario and a reason why:
With Trump in the position of Speaker and immediate impeachment articles voted to remove Biden and Harris, the Senate (presumably also in Republican control) would quickly proceed to a trial. Conviction and removal of Biden and Harris would result in Trump ascending to the presidency. The GOP base and the radical wing-nuts in Congress would like nothing more and the pressure they would apply to Republican Senators could be irresistible.
Remember, Patrick Leahy is retiring. If Charles Grassley wins re-election, he becomes the Senate President Pro-Tempore. If he loses, it’s Mitch McConnell. Pause for a few moments to contemplate either of them being in the presidential line of succession.
If the threat of such a scenario doesn’t give rise to revolutionary behavior throughout the country, imagine how it will escalate when the Republicans play games with the Senate rules to insure that they have “two thirds of the members present” ready to vote for conviction and removal. Might they redefine a Senate “member” to exclude any Democrat whose election victory is the result of alleged “voter fraud”? Might they prevent enough Democrats from physically entering the chamber so as to guarantee a ⅔ vote of those “present” while those locked out can only complain to the press and cable-TV cameras? McConnell has already demonstrated his penchant to hypocritically invent new Senate rules and customs. He is not to be trusted.
In short, it is not hyperbole to warn that American democracy is in jeopardy. Violent revolutionary behavior is very possible. All that being said, how could an updated Constitution save our democracy and prevent a violent revolution? In the short run, leading up to the 2022 and 2024 elections it’s not very likely. Updating the Constitution will take more time, but hopefully not so much time that it couldn’t be completed in time for the 250th anniversary of the Declaration of Independence in 2026 or a similar anniversary in 2039. In the short run, all we can hope for is a growing viral movement in favor of a new Constitutional Convention before it’s too late and democracy gives way to an autocracy that resembles Turkey, Brazil, Hungary, North Korea and Russia.
And that’s where my proposal for the Constitution 2.0 begins, preferring a Constitutional Convention to the more unacceptable, violent alternative. If your first reaction is “that will never happen” rest assured that I am not dissuaded by refusals to recognize that things are only impossible until they are not. Ask the 2004 Boston Red Sox. Moreover, others have proposed the same reform goal, perhaps with a different rationale and strategy.
The first Constitutional Convention two centuries ago was held in Philadelphia, where its work was concluded within the space of only 4 months in 1787. Its original mission was only to improve the Articles of Confederation. As I don’t pretend to be a constitutional or historical scholar, I’m satisfied by what I’ve read that the 55 delegates in attendance represented a wide cross-section of the new country’s population from every state except Rhode Island, ranging in age from 26 to 81. Ultimately, only 39 delegates (70%) signed the document before it was ratified by the States.
When you consider how slowly modern political commissions, tribunals, and assemblies operate to achieve their goals, it’s hard to imagine how anything as comprehensive and important as an updated Constitution could be completed in a matter of months. More realistically, such a convention should be scheduled to span several years, perhaps with a target completion date of 2026 when the country will celebrate the 250th anniversary of its independence.
As I have not yet heard of any comparable proposals now being considered, this is my initiative to propose a framework for the composition and conduct of a new Constitutional Convention. As the Chinese proverb says, ’a journey of a thousand miles begins with a single step’ so herein is my idea for a first step in that direction.
First, the need for a Constitutional Convention is best explained by observing that the most contentious subjects that divide modern American culture are those rooted in the Constitution and particularly in its first 10 Amendments, the Bill of Rights. Consider such topics as freedom of speech, religion, press and assembly, gun rights, privacy rights, war powers and abortion, to name only a few. So much of our discourse and debate relies on such argumentative concepts as “originalism” versus a “living constitution” that reflects the times we live in without being inextricably bound to the legal and sociological opinions of white men (and not a single woman). Their 18th century life experience could not have included typewriters, cameras, telephones, sewing machines or the telegraph, none of which were yet invented. In fact, the precursor to the modern refrigerator was the ether ice machine, invented in 1834. The Colt revolver was invented in 1836, vulcanized rubber in 1839, the stapler in 1841, the safety pin in 1849 and the gyroscope in 1852. The machine gun, dynamite, traffic lights, telephones, phonographs and light bulbs came decades later.
A relevant example is our modern-day interpretation of the Constitution’s provisions applying to war powers. Like so many other provisions of the Constitution, it is forever limited by our ability to understand the degree to which the founders could accurately foresee and predict the future. Ever since the deaths of the original framers, scholars and jurists have sought to find meaning and answers in legacy documents that preceded the ratification of the original Constitution and Bill of Rights by a nation that then consisted of only 13 states and 2.5 million people whose fastest speed in transportation was a galloping horse. Our modern Congress lacks the courage to pass a declaration of war but instead will vilify its own members for voting for or against military action while arguing about the Executive’s right to exert that power. Moreover, the context of warfare has shifted from battlefields to cyberspace while drones and hypersonic missiles can be dispatched from secure facilities tens of thousands of miles from their targets. With the passing of time, debate about the founders’ views about war powers is a challenge akin to being viewed through a prism rather than a lens.
My premise is that Americans are very familiar today with the concept of “upgrades” to their computer programs, operating systems, devices, appliances, kitchens, automobiles … at a pace previously limited only to fashion trends. In a world that evolves much faster than in previous centuries, citizens are well accustomed to periodic modernization of virtually everything that directly impacts their lives.
A new Constitutional Convention will bring together all political parties, scholars, representatives from all branches of our government and many others committed to a modern reform of the bedrock document of our government. The outcome will combine the wisdom of the founding fathers with the updated vision of the custodians (both fathers and mothers) of the democracy we live in today and intend to bequeath to generations of our descendants who are likely to someday reinvent it again.
In 1790, the U.S. Patent and Trademark Office granted a total of only 3 utility patents for inventions. In 2020 that number was 352,066. Records were not kept for the number of patent applications until 1840 when the number was 735; last year it was 597,175.
WHERE will the Constitutional Convention be held?
My proposal for a new Constitutional Convention would have it travel to as many cities as possible over a 24-30 month period, not unlike a popular concert tour. In each city, there would be a 3-day event, perhaps over a weekend, in which there might be opening and closing general sessions attended by a large audience and “breakout” sessions in between in which all the proposals for upgrades to provisions of the existing Constitution could be discussed and debated with subject-matter experts rotating from time to time as moderators and panelists.
The tour would visit every state and metro area at least once. Sessions could be live-streamed online and recorded as episodes for a free online TV series, giving citizens everywhere the ability to tune in at their convenience and to submit comments and ideas for consideration.
WHEN will the Constitutional Convention be conducted?
If a tour as described above begins no later than mid-2023, it could be completed before the end of 2025, thereby providing for ratification by the states during 2026, the 250th anniversary of the nation’s independence. Yes, an event worthy of celebration.
WHO will be the delegates?
Delegates to the Constitutional Convention should represent a very broad cross-section of American society. Below is a suggested list of delegates, all of whom should include those with Democrat, Republican and Independent leanings or affiliation:
- Former SCOTUS justices
- Past presidents
- Past Chairman of the Joint Chiefs of Staff
- Former cabinet members
- Former Federal Reserve board members
- Former DOJ and FBI leadership
- University presidents
- Constitutional scholars
- Scientists with subject-matter expertise, e.g. medicine, climate, agriculture.
- Medical experts and bio-ethicists
- All genders
- Labor leaders
- Experts in technology, e.g. communications, aerospace, innovation.
Below are six examples of subjects that now contribute to the perpetual polarization of our nation. Surely this list can be expanded. Constitution 2.0 will provide a new and welcome basis for common ground and understanding. Using modern media, there would be ample opportunity for input, debate and dialog from millions of concerned citizens, assuring participation in the Constitutional Convention by all interested parties, thus helping to insure greater consensus after ratification.
- War Powers
Constitution 2.0 will more clearly define the powers of the Executive and Legislative branches, with proper attention also given to due process and privacy issues that have raised questions about conflicts with the Bill of Rights, as for example with the 2001 Patriot Act.
- Medical Science
The Constitutional Convention will give the nation an opportunity to debate and settle important questions that hinge on the guarantees of life, liberty, and the pursuit of happiness. These are guarantees not only rooted in the Declaration of Independence but generally accepted without partisan dispute. It is the modern interpretation of these guarantees in the context of contemporary life that unnecessarily entangles our courts, our legislatures and our people in a polarized struggle that increasingly erodes confidence in our collective ability to live together in a harmonious society.
Of course, personal freedoms and the appropriate influence of religious institutions will be a necessary part of this dialogue, but in the absence of a dialog in the context of a Constitutional Convention, polarization will persist.
- Arms and Ammunition
The first was a televised interview with Justice Antonin Scalia. He focused on the meaning of “bear arms” by suggesting that in the late 18th century, it would not have been humanly possible to carry on one’s shoulder an iron cannon capable of the kind of destruction made possible today by a lightweight, portable rocket-launcher. While the meaning of a “militia” can certainly be debated in the context of today’s armed forces, it makes no sense to postulate whether the founders could have envisioned the modern assault weapons and handguns manufactured and sold today, not to mention firearms that can be fabricated in one’s kitchen with plastic powder, a 3D printer and an ordinary common nail. Until the middle of the 19th century, archers could shoot more arrows in a single minute than the best firearm available: a musket was capable of firing (at most) 6 rounds in the same interval. Indeed, at close range, even a slingshot was a more effective weapon for repeat-fire.
The second observation was a more novel approach to solving the problem of gun violence, suggesting that there is no Constitutional prohibition against the regulated distribution and sales of ammunition. The novel proposition that legislators could reasonably impose new limits and restrictions on the way ammunition is acquired by owners of firearms is worthy of consideration in a new Constitutional Convention, perhaps also determining whether this is a power reserved to the States or to the Federal government. It’s long overdue to differentiate between weapons used in combat and those used for hunting.
Constitution 2.0 could also include discussion of the influence of money on our political system. If the Supreme Court was not required to divine the original intent of the founders, decisions like Citizens United would be more easily settled by referring to a more up-to-date set of articles that would limit the influence of lobbyists and “dark money” as described by Rhode Island Sen. Sheldon Whitehouse. Consequently, the preferences of 83% of responsible gun owners would more likely be reflected in our laws and we could end the horror of mass murders in theaters, schools, churches and other public places.
Arguments that compare firearms to automobiles and discussions about hunting, sportsmen and marksmanship would all be able to take into consideration upgraded definitions of “a well regulated militia” and the “right to bear arms” by redefining those rights, the arms themselves, and the verb “to bear” that connects them. There’s got to be a difference between the “security of a free State” and laws that enable someone like Kyle Rittenhouse to legally patrol city streets and commit murder in the name of community defense.
- Elections and Voting Rights
As demonstrated above, the fact that Senate membership is so far removed from per-capita representation consequentially results in minority rule and gridlock, giving additional impetus to the argument for reform of Article I.
It has been 100 years since the 17th Amendment provided for the direct election of the United States Senate. Constitution 2.0 could, subject to the outcome of a new Constitutional Convention, similarly provide for direct election of the President. The fact that only a few states have determined the outcome of most elections, and further that technology now makes it possible to target campaign marketing to specific communities where swing voters reside — and to gerrymander with what a Court called “surgical precision” — makes it imperative to bring forward a reasonable discussion about the sensibility of continuing to preserve the anachronistic Electoral College. Indeed, the Electoral College is even more antithetical to democracy than the U.S. Senate. If the national popular vote determined the outcome, there would be no “battleground” states because each and every vote from every district in every state would influence the result with equal weight.
After a century of efforts to increase voter participation by, among other methods, (a) enfranchising those whose right to vote was previously hindered or denied by un-Constitutional and/or illegal actions by States and political parties and (b) by instituting early voting and mailed ballots, we are regrettably witnessing after the 2020 election cycle a new wave of questionably constitutional state legislation designed to suppress access to the ballot and even empower state legislators to overrule any popular election result they dislike.
At the same time, we are experiencing the consequences of the Citizens United decision which does not actually grant to corporations the right to cast a ballot in a voting booth, but does use the Constitution’s First Amendment to empower corporations to effectively buy the outcome of an election. Voting rights must be clearly and explicitly defined in the Constitution in a way that States cannot violate because we seem to be going backward, not forward, when an empowered minority can disenfranchise enough of the majority to achieve their partisan goals. As Georgia Sen. Warnock recently said: “Some people don’t want some people to vote.”
An upgraded Constitution 2.0 can settle these questions by considering the modern-day influences of mass media, the Internet and other factors that influence and determine election results. For example, the Hawaiian-Aleutian time zone is 6 hours behind Eastern time, making it possible for the broadcast news of early eastern returns to unfairly influence turnout and votes in states farther west. Debate might also include related subjects such as term limits, certified electronic ballots, mail ballots, Election Day holidays, etc. The citizens’ right to express their choice of leaders and representatives is the most fundamental way that a democracy manifests itself. Therefore it is appropriate that Constitution 2.0 be more synchronous with modern society to guarantee universal suffrage, fairness, promote voter participation and make ballot access more expedient.
- Presidency: term limit and immunity
Additional language in the Amendment limits the number of elected terms to one if the person holding the office as an acting President was in office for more than two years. Thus, Lyndon Johnson, whose presidency began on November 22, 1963, is the only person since passage of the 22nd Amendment who would have been eligible to serve more than 8 years in office. Had Gerald Ford won re-election in 1976, he would have been disqualified to run again in 1980. However, Jimmy Carter, George H.W. Bush and Donald Trump are/were still eligible to seek a second term as President.
Only five presidents have served terms of office limited by the 22nd Amendment: Dwight Eisenhower, Ronald Reagan, Bill Clinton, George W. Bush and Barack Obama. Seven other presidents: John Kennedy, Lyndon Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, George H.W. Bush and Donald Trump never (for 4 different reasons) confronted the Amendment at the end of a second term. Having witnessed the political consequences of the 22nd Amendment during twelve presidencies over the course of seven decades, it is reasonable at this time to reconsider its wisdom, merits and intended results.
Strong arguments can be made both for and against the presidential term limitation. In the postwar aftermath of Franklin Roosevelt’s four consecutive elections, concerns about a presidential dynasty were strong enough to gain ratification by 36 states before February 27, 1951 and five more states thereafter. Oklahoma and Massachusetts rejected the amendment and five states (Arizona, Kentucky, Rhode Island, Washington and West Virginia) took no action on the matter. However, modern concerns about legislative “gridlock” could only have been speculative in 1951, whereas today we have the benefit of 70+ years of hindsight and actual experience.
Many people believe that a President’s first term is largely devoted to, and too heavily focused on, their re-election. Some argue that unless a President is re-elected to a second term, his/her presidency is somehow marginalized and considered a failure because a rejection by the voters, as in 1980, 1992 and 2020 is seen as a referendum on the President’s performance during the first term. Then, for those who are elected to a second term, their objective is to insure a “legacy” by virtue of numerous achievements that would not have been possible without the implied “mandate” of the re-election.
However, experience has shown that only during the first 12-18 months of a second term can a President effectively use that mandate. The focus on the second mid-term election tends to signal the end of the president’s governing power and makes the remainder of the second term a test of his/her leadership. In the second Clinton term, that test was also compromised by an impeachment trial. Two impeachments in the second half of the Trump presidency make it a special case exception to this analysis, also because the possibility of another term still exists. Paradoxically, Trump was able in only one term to create a legacy that historians will evaluate far into the future.
Arguably, the repeal of the 22nd Amendment would radically transform the modern relationship between all three branches of government. Considerations about the appointments of Supreme Court justices and other Federal office-holders are perhaps less obvious but no less important than the legislative agenda taken up by each administration with a Congress that has its own institutional limitations.
Opinions about the value of the 22nd Amendment would undoubtedly come from political scientists, journalists, politicians, authors, commentators, educators, and the general public. With four living former Presidents (excluding Trump), five living losing candidates and the current President able to add their own testimony about the benefits and disadvantages of a repeal act that would apply only to future Presidents, it’s appropriate to consider … in the context of a Constitutional Convention … whether the American government is hindered and it citizens disadvantaged by the voters being denied the opportunity to keep in office a leader who continues to earn their votes.
This discussion could also include proposals to more explicitly define other contentious subjects involving Article I, such as executive privilege and the liability of a president for criminal indictment while in office.
In my opinion, considerable respect and deference are owed to the wisdom and visionary thinking of the Founders without declaring them clairvoyant. They demonstrated their ability to construct foundational language that has survived for more than two centuries but it’s worth remembering that they were human beings, not time-travelers. And because none of us have the ability to travel back in time to question the framers of the Constitution about their original intent, we can only struggle to understand and interpret the words they wrote and apply them to our modern world. And, the greater the distance from 1789, the harder this intellectual exercise becomes as our connection to 1789 becomes stretched like an elastic band that will eventually snap under stress.
Is it at all conceivable that even the most brilliant minds of the 18th century could have envisioned heart transplants, television, interplanetary travel, submarines, smart phones, the Internet, satellites, drones, GPS, weather forecasting and hundreds of other elements of contemporary life that are common today on every continent? I think not.
Upgrades are now a well-accepted method of avoiding what we called “planned obsolescence” not very long ago. Our home appliances, computers, automobiles, phones and almost anything operated by software can be economically updated to insure that they remain useful. Updates protect our devices from the adverse effects of computer viruses, malware, adware and other security threats that are constantly evolving. Other automobile manufacturers already follow Tesla’s example by correcting product defects with electronic updates delivered directly to the vehicle far more economically than with recalls that required visits to a dealership.
Clearly, the concept of updating a document as old as the Constitution can be explained to the American public with mass marketing that leverages these and other analogous examples. Legal agreements of all kinds are typically subject to renewals with modified terms. Therefore, it can be reasonably argued that after 240 years, the time has come to revisit the Constitution (in a bi-partisan manner) for the purpose of updating any provisions worthy of reconsideration when viewed through the lens of 21st century life. Moreover, the proposed Constitutional Convention would not be binding upon our society and legal framework until after it becomes ratified by the States, so there is little if any risk involved in the creation of a national dialogue. Presumably, after 2-3 years of widespread publicity, transparency and a patriotic ambition to think beyond the next election cycle, any controversy will have found its way into the debates and resulted in appropriate compromise language.
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