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An unamended Constitution is a serious problem

An unamended Constitution is a serious problem
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LaRue writes at Structure Matters. He is former deputy director of the Eisenhower Institute and of the American Society of International Law.

Steven Levitsky and Daniel Ziblatt have followed up their bestselling “How Democracies Die” with “Tyranny of the Minority,” which delves deeper into the specific causes of America’s democratic decline. They examine the structural and institutional factors beneath our electoral problems and expose a major risk to U.S. democracy – the Constitution itself.

“It is essential,” they write, “that ideas for constitutional reform become part of a larger national political debate.” They advocate loosening some checks and balances that now constrain or deny majority outcomes, thereby producing results that are unrepresentative and harder to govern.

Pushing amendments toward the top of the already long list of election reform priorities is a tall order. Levitsky and Ziblatt attempt to meet the challenge by proposing a package of reforms anchored by four amendments, including establishing a right to vote, abandoning the Electoral College, and easing the amendment process. Their voting rights amendment, for example, is paired with six familiar ideas, such as automatic voter registration and nonpartisan election administration.

Timing and history buttress their case. Changing the Constitution appears impossible today, but it always has seemed that way when the country is deep into its usual decades-long gap between amendment clusters, as we are now. Towards the end of The Gilded Age, for example, thought leaders pronounced the Constitution “unamendable,” only to be proven wrong when the first two of four Progressive Era amendments were ratified in 1913.

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Leading amendment efforts today involve the Electoral College and campaign finance (and there remains the limbo confronting the Equal Rights Amendment). Ten years before entering the U.S. Congress in 2017, Jamie Raskin led Maryland’s state legislature to be the first to adopt the National Popular Vote Interstate Compact, the Electoral College workaround that would use the popular vote to elect the president. He recently described the compact as a means to constitutional change: “Once we see the new system working in practice, I feel certain we will amend the Constitution to adopt the system formally.” He went on to equate advancing the NPVIC with granting women the right to vote at the state level prior to the 19th amendment’s passage in 1920 (20 states and territories had formally done so by then).

Jeff Clements, CEO and co-founder of American Promise, has been advocating for a 28th Amendment to limit campaign spending since the Supreme Court’s Citizens United decision in 2010 unleashed torrents of unlimited, unaccountable cash into campaigns. He says a constitutional solution (“reasonably regulating and limiting contributions and spending”) is necessary to prevent the Supreme Court from disarming any enacted legislative responses.

Like Raskin, Clements stresses working in the states; 22 have signed on to the For Our Freedom Amendment, reinforcing American Promise’s push in Congress for cross-partisan support. “It is a myth,” he argues, “that the Constitution cannot be amended. Yes, it is hard to do and takes time, but citizens are embracing the challenge. They see the need and are making change happen.” He cites recent CBS polling showing that 86% of Americans identify money in politics as the top reason democracy is under threat, a level of support that partisan naysayers ignore at their risk.

Other constitutional reforms could be candidates for the next wave or cluster of amendments. Calls for congressional term limits are popular, but errantly propose limits that are too short; longer limits, however, such as four terms in the Senate rather than two, merit consideration. And more insidious problems, such as the permanent campaign and the president’s second-term curse, could be alleviated by changing term lengths, a surprisingly impactful constitutional pillar.

The Framers anticipated the need to respond to social evolution or constitutional erosion, and gave future generations an amendment process to make corrections. The Article V process may itself be flawed – Levitsky and Ziblatt propose abandoning the step of having states ratify amendments, and the National Constitution Center’s Constitution Drafting Project proposes reducing the supermajority requirements for congressional passage and state ratification – but it exists.

And is what we must use. Levitsky and Ziblatt warn that “[d]emocratic reform will remain impossible . . . unless we rethink our attitude toward constitutional change.” They add, “when an ambitious idea is ‘unthinkable’ . . . the battle is lost. Non-reform becomes a self-fulfilling prophecy.”

We must keep such a prophecy from coming true; fortunately, amendment history is on our side. May the next cluster of amendments arrive sooner rather than too late.

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