Constitutional Law

Should the US Constitution be scrapped? It 'guarantees gridlock' and is full of holes, writer says

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It may be time to replace or at least amend the U.S. Constitution, despite its “224 years of commendable, often glorious service,” according to an online essay.

National Journal reporter Alex Seitz-Wald writes at the Atlantic that the recent government shutdown and “permanent-crisis governance” highlight the need to consider change. “The Constitution simply isn’t cut out for 21st-century governance,” Seitz-Wald writes. “It’s full of holes, only some of which have been patched; it guarantees gridlock; and it’s virtually impossible to change.”

Law professors such as Sanford Levinson of the University of Texas and Lawrence Lessig of Harvard have called for a constitutional convention, though they disagree over its reach, the story says. Lessig, for example, likes the idea of using the convention to draft a constitutional amendment promoting campaign reform. Levinson envisons a two-year effort to reform the Constitution, overseen by delegates selected by lottery.

The article cites research finding that the U.S. Constitution has rarely been used as a model for countries adopting constitutions between 1946 and 2006.

Some observers have suggested U.S. dysfunction may attributable to our system of government, the article says. “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,” according to the article. “America has muddled through thus far by compromise, but what happens when the sides no longer wish to compromise?”

The answer could be a parliamentary system of government, some say. The article cites the benefit of parliamentary systems that allow one house to override the other during an impasse. And, under most parliamentary systems, the failure to pass a budget or elect a prime minister leads to new elections; funding levels “are placed on autopilot” pending the results, the article says.

Another proposal calls for changing the Senate. “Today, the Senate is an undemocratic relic where 41 senators, representing just 11 percent of the nation’s population, can use the filibuster to block almost anything and bring government to its knees,” the article says. “A single voter in Wyoming, a state with a mere 600,000 people, has the equivalent representation of 66 Californians unfortunate enough to live in a place with 38 million other people.”

Other proposals include just one term for the president, more state power and runoff voting. The article quotes Levinson on the benefits of a constitutional convention. “The most important thing a convention would do,” he said, “is to simply jump-start and conduct a national conversation that we’re not having.”

Hat tip to How Appealing. See this book review by retired Justice John Paul Stevens for a contrary opinion.

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