President Joe Biden has proposed a constitutional amendment to make clear that presidents of the United States are not above the law. But that’s not the only repair the Constitution needs.
Other important changes include fixing deficiencies in the current document; correcting unacceptable precedents set by Congress and the courts; and addressing contemporary issues the Constitution’s authors could not have anticipated.
The Constitution’s authors foresaw that the document might need changes over time, but they made it extremely difficult. Two-thirds of state legislatures (34) can call for a convention to propose amendments, but that has never happened. It would probably be a circus if it did. Alternatively, Congress can propose amendments with a two-thirds vote in both houses. That has happened 33 times.
Either way, three-fourths of state legislatures must approve an amendment before it becomes part of the Constitution. That has happened only 27 times. The most recent amendment, which regulates congressional salaries, proved how arduous the process can be. The required number of states finally approved it in 1992 — 202 years after Congress sent it to them for ratification.
Nevertheless, we might ask what flaws we would fix if we could and what the Constitution would say if we wrote it today. Here are some ideas.
Fixing deficiencies: Earlier this year, the controversy over Colorado keeping Donald Trump off its ballot revealed a deficiency in Section 3 of the 14th Amendment, the “insurrection clause.” It says that no public official can hold office if they have sworn to support the Constitution but participate in or aid an insurrection. The clause lists some covered officials, but doesn’t mention the president or vice president. It should.
Next, it is time to eliminate the Electoral College. Presidents should be chosen by popular vote. The Electoral College has several shortcomings, but the most serious is the five times it has thwarted voters’ will. Most recently, George W. Bush in 2000 and Trump in 2016 won the presidency despite losing the popular vote. Last fall, a Pew survey found that 65 percent of adults want a popular vote system.
One of the most perverse threats to democracy is the Supreme Court’s 2010 Citizens United decision that corporations and wealthy individuals have a constitutional right to make unlimited monetary contributions to independent groups backing political candidates. The court ruled that money is a form of free speech protected by the First Amendment. However, excessive campaign donations are also a form of bribery and undue influence. The Constitution should allow reasonable limits on campaign donations or replace them with public financing.
Finally, the Constitution puts states in charge of administering elections. It should prohibit states from gerrymandering or making any rules that prevent or inhibit the right of qualified citizens to vote.
Correcting unacceptable precedents: As President Biden says, the Constitution should clarify that former presidents are not immune from prosecution for breaking laws while in office. In fact, the Constitution should state that no American citizen is above the nation’s laws.
Also, although the Bill of Rights and the 14th Amendment establish specific rights for American citizens, the Constitution contains no express right to privacy. As a result, privacy rights are determined by Supreme Court decisions. In overturning Roe v. Wade, the current court showed that even seemingly inviolate rights are vulnerable to the justices’ changing views. The Constitution should be explicit about other inviolable rights, such as a person’s right to choose health and medical care, including reproductive care.
Addressing contemporary issues: In the 237 years since the Framers finalized the Constitution, human populations, industries and technologies have grown to threaten life on the planet. Global warming is an example of a threat that can become irreversible and jeopardize the inalienable rights of future generations to life, liberty and the pursuit of happiness.
The United Nations has issued a “call to action for human rights,” including the rights of children, young people and future generations to “a healthy environment and their meaningful participation (or representation) in decision-making at all levels” (parenthesis mine). This should be added to the Constitution.
So should the rights of nature. It has never been clearer that humanity’s well-being is intimately connected with the health of the biosphere, its life-support systems and biodiversity.
The respected Yale Environmental Performance Index ranks the United States as an embarrassing 34th among the 182 nations it evaluated this year on environmental performance. Many countries, tribal nations, cities and counties now recognize in constitutions, statutes and court decisions that other species have an intrinsic right to life beyond their benefits for humanity. The Guardian points out the “movement is growing to give legal rights and political representation to nonhuman animals, species, and places.” The U.S. Constitution should recognize these rights, including the right of all life to a hospitable climate.
The Constitution should remain a stable and solid foundation for democracy, but we must be able to repair cracks when they appear and keep the document relevant as the world changes. Otherwise, it will become an artifact rather than the relevant and respected supreme law of the land.
William S. Becker is executive director of the Presidential Climate Action Project and a former regional director at the U.S. Department of Energy. He is author of several books on climate change and national disaster policies, including the “100-Day Action Plan to Save the Planet.” and “The Creeks Will Rise: People Co-Existing with Floods.”