Opinion | How ideological foes united on ideas for amending the Constitution

Jeffrey Rosen is president and CEO of the National Constitution Center. Sal Khan is CEO of Khan Academy. They are creating a free online course focused on the Constitution and its history.

Political polarization, the conventional wisdom goes, has made our Constitution unamendable. The supermajorities required to propose and ratify constitutional amendments — two-thirds in both houses of Congress plus three-fourths of the states — are now unobtainable. As a result, as Jill Lepore reported in the New Yorker, the United States has one of the lowest amendment rates in the world.

And yet, there might be more agreement on constitutional change than meets the eye.

That’s the surprising lesson that emerged from a virtual convention of conservative, progressive and libertarian legal scholars organized by the National Constitution Center.

Advertisement

It began when we convened three teams of well-known law professors — conservative, libertarian and progressive — to draft new constitutions from scratch. All three teams converged around basic reforms, including the need to strengthen congressional oversight of the president and to increase Congress’s control over federal spending and regulations.

Encouraged by this consensus, the three teams gathered together for a Zoom convention in August to see if they could agree on specific amendments to the existing Constitution.

And after a week of dialogue, deliberation and compromise, the ideologically diverse delegates agreed on proposals for five pathbreaking amendments:

• The 28th Amendment would eliminate the natural-born citizenship requirement for the presidency. If the amendment passed, Henry Kissinger and Arnold Schwarzenegger could run for president.
• The 29th Amendment would allow for legislative vetoes of executive and regulatory actions. All three teams shared concerns about an imperial presidency and a runaway administrative state, typically a conservative and libertarian bugaboo. And they all found a solution in resurrecting the legislative veto, which allows Congress to negate executive actions by majority vote. Congress exercised this power from 1932 until the Supreme Court struck it down in 1983, a decision that the delegates’ amendment would overrule.
• The 30th Amendment would seek to avoid partisan impeachments while making it easier to remove dangerous presidents. It would reform the presidential impeachment process by replacing “Treason, Bribery, or other high Crimes and Misdemeanors” as cause for impeachment with “serious criminal acts, or for serious abuse of the public trust.” In other words, not all crimes would be impeachable and not all impeachable conduct would be criminal. And while the current Constitution requires a majority of the House to impeach and two-thirds of the Senate to convict, the amendment would change both thresholds to three-fifths, making it harder to impeach but easier to convict.
• The 31st Amendment would set 18-year term limits for Supreme Court justices, with staggered terms allowing for a vacancy every two years. Thus each president would get to appoint two Supreme Court justices per four-year term, regularizing and de-politicizing the Supreme Court confirmation process. It would also require the Senate to vote on all nominees. (In other words, no ignoring Merrick Garland.) If a sitting justice died or left the court, the president would nominate a successor to fill out the end of that term.
• The 32nd Amendment would make proposing and ratifying future amendments a little easier. Congress could propose amendments by a three-fifths vote of both Houses (down from two-thirds), and amendments would become law when ratified by two-thirds of the states (down from three-fourths). The delegates also added an alternative, population-based amendment track, so that small states couldn’t block overwhelming majorities from changing the Constitution. On this other track, states representing two-thirds of the national population could force Congress to propose amendments, and states representing three-fourths of the population could call a Constitutional Convention themselves. And all proposed amendments would go into effect if ratified by states representing three-fourths of the population.

What unites all five amendments is a focus on the structures of government rather than individual rights. By preventing all power from being concentrated in one place, all are designed to ensure that each of the three branches can check the others or that all three branches are ultimately responsible to the people.

Danielle Allen: How to fix American democracy during a ‘Great Pulling Apart’

Watching the delegates deliberate so thoughtfully felt like watching modern-day founders. And sustaining the whole project was the spirit of compromise. No delegates got their ideal solutions, but they did get solutions that were better than the status quo. Their training in constitutional history and law was key to helping the delegates focus on long-term consequences rather than immediate partisan advantage.

The delegates to the virtual convention hope to present their five amendments to Congress and start the process of building the support necessary to ratify them. Whether or not they succeed, they have already shown us there is more that unites Americans when it comes to the Constitution than our broken political system suggests.

ncG1vNJzZmivp6x7uK3SoaCnn6Sku7G70q1lnKedZLyxtc2ipqerX2d9c3%2BOaWloaGFktqWxzqWmoKGTlrluss6eqmaZnZq7pbnEp6tmm5%2BjwLW1066roqeeZA%3D%3D