As unusual as these times seem in some ways, the question of constitutional change that looms in front of us—as Americans and as contributors to this symposium—is not new. It is the same question that faced James Madison, Alexander Hamilton, and the other delegates who met in Annapolis in September 1786 in a precursor to the Philadelphia Convention the following year. It is the same question that faced the Philadelphia Convention itself in 1787. And it is the same question that animated a well-known exchange between James Madison and Thomas Jefferson immediately after this convention produced the Constitution.
Before getting lost in the details of particular Constitutional alterations, it is important to step back and ask ourselves at the threshold: What is the purpose we hope to achieve? Is it to remedy specific supposed defects in the Constitutional text, like the mode of electing the President in Article II, Section 1? Is it to update the Constitution for a 21st century society? Is it to change the Constitution to better reflect Americans’ changed opinions about government since 1787? Is it to be more inclusive of particular groups of Americans? Is it to harmonize more closely with other nations in our newly globalized world?
Though there were many reasons for constitutional change in 1787—primarily having to do with the economy and national security—its chief purpose was unity. Unity was necessary for a thriving economy; unity was necessary for an effective national defense; unity was necessary to secure justice and liberty for all the people of all the states. For a political society to work, it has to be a political society—not many political societies jostling against one another within the same national boundaries.
In 1787 these multiple political societies were the individual states; in 2020 they are defined more by partisan political allegiance and demographic differences, especially racial identity. Though the dividing lines are different, the overarching impetus for constitutional change is similar. We need unity—and not the precarious, artificial unity imposed by a dictator from the top down; but the stable, organic unity built by the people from the bottom up.
This is the central premise that animates the Our New Constitution movement and distinguishes it from many other constitutional reform efforts. Particular Constitutional provisions are very important; but it is more important that they are understood and endorsed by “We the People.” Without this, as the original American Founders well knew, the best written constitution in the world becomes utterly worthless.
The question of whether our existing Constitution continues to be endorsed by “the people” is a complicated one. A certain “veneration” for the Constitution remains widespread. In a 2017 poll, for example, although 46% of likely U.S. voters say constitutional changes are needed, just 1% call for scrapping the document and starting over. Super-majorities of Americans support a few specific changes, such as the Equal Rights Amendment or the national popular vote for president, but super-majorities also support keeping the existing Constitution. Most Americans want to keep our Constitution and fix its imperfections.
This seemingly innocuous position encounters a few complications, however. The first is the well-documented fact that the Constitution is extremely difficult to amend in accordance with the Article V provisions. The second, more serious, complication is that most of the Americans who want to keep our Constitution don’t know what it says. The same 2020 poll that found nearly 75% of Americans support the ERA also found that 72% of Americans thought the ERA’s language was already in the original Constitution. Many polls of basic constitutional knowledge among Americans have consistently found alarmingly low levels of such knowledge over the past decade. One of these polls, the annual Annenberg Constitution Day Civics Survey, registered dramatic increases in constitutional knowledge—particularly relating to the First Amendment—in 2020, a change it ascribed to the widespread protests of governments’ handling of the pandemic and issues of racial justice.
Which brings us to the third and most serious complication of the simple keep-it-and-fix-it approach to the Constitution: a large proportion of the Americans who don’t endorse this approach are vehemently opposed to the Constitution root and branch. The Black Lives Matter organization, to take the most prominent and illustrative example, openly promotes “revolution.” The 1619 Project paved the way for this opposition by arguing that all American systems of government, the economy, and society are incurably infected with the racism that entered Virginia in 1619. The Constitution, on this account, is an inherently racist document giving rise to inherently racist institutions. This is, moreover, not a mere fringe extremist view; Black Lives Matter has attracted an enormous amount of financial support in 2020, and enjoys a broad groundswell of popular support among Americans across the country. Even if roughly 70% of Americans favor the conservative keep-it-and-fix-it approach to our existing Constitution, the fact that the other 30% passionately support revolution changes the prudential equation.
In the face of these complications, the purpose of constitutional reform today should not be limited to fixing or updating a few objectionable clauses. Even if such reforms are successfully enacted, this would not obviate the need to address deeper issues relating to civic knowledge and commitment. The only way to address these deeper issues, and to save the American democratic republic in the long run, is to reenact our national founding moment—the moment when ordinary people throughout the U.S. considered, discussed, and debated the fundamental terms of their political unity.
If this should be the overarching goal of constitutional change in the coming months, what are the most appropriate means of carrying it out? Our New Constitution has provided a remarkably simple path: discuss the relative merits of our existing Constitution and an alternative one that makes modest but important changes. We have chosen to present this alternative without named authorship for a similarly simple reason: the authors of any proposed political constitution should be the people who will live under it. When it comes to the consideration of a democratically legitimate Constitution, it is important that individuals step back and allow the people to become authors of the document themselves. This was at least part of the reason why Alexander Hamilton, James Madison, and John Jay chose to write the Federalist articles pseudonymously, and why so many other prominent writers of the ratification debates did likewise.
In the 37th of these Federalist essays, James Madison marveled at the miraculous success of the Constitutional Convention despite the factionalism that inevitably characterizes such gatherings. Most would admit that the danger of derailment by factionalism is only worse today. How could any group of modern-day experts hope to replicate the success of the Philadelphia Convention in moderating their own partisan attachments while insulating themselves from the intense and all-pervading factionalism that characterizes our new world of digital and social media? The Philadelphia Convention required a number of theoretically incoherent compromises (most famously those over representation and slavery) to produce a document palatable to most. These compromises unraveled over time, leading to the Civil War and contributing powerfully to our current constitutional crisis. Would a similar convention today be likely to produce fewer such compromises? Would these compromises be expected to be more stable over time than those characterizing the original Constitution?
By providing a complete and well-considered alternative, Our New Constitution allows us to proceed directly to the stage of popular ratification. This is no small advantage. What, though, if the particular provisions of Our New Constitution aren’t widely acceptable? First, the Article V amendment process in Our New Constitution is more accessible than the process in our existing Constitution, requiring thresholds of majority and 2/3 rather than 2/3 and 3/4 (and, incidentally, eliminating the objectionable clause protecting the transatlantic slave trade).
Secondly, the particular modifications of Our New Constitution have been designed to take both progressive and conservative points of view into consideration. Our New Constitution enacts a few of the most widely supported progressive constitutional reforms—including eliminating all clauses originally reflecting the institution of slavery and other exclusionary practices, abolishing the electoral college, and mandating the public financing of campaigns for political offices—while preserving the form and essentials of the original Constitution valued by conservatives along with conservative-inspired reforms such as a new Congressional power to override Supreme Court decisions.
Other features, such as the inclusion of a Declaration of Rights before Article I, hearken back to pre-Constitutional times when revolution-making and constitution-building were simultaneous and complementary processes. American progressivism and American conservatism were one and the same. This relationship was reflected in the Revolutionary Era State Constitutions, all of which opened with declarations of rights; in James Madison’s statement in Federalist no. 39 that the Constitution had to reflect “the principles of the revolution;” and in the version of the first amendments to the Constitution proposed by Madison in the First Congress—ultimately adopted as the tacked-on Bill of Rights.
Lastly and most fundamentally, though, it is our belief that the simple path marked out by Our New Constitution—a popular ratification process completed by an up-or-down vote on an alternative—is the only one that has a chance of accomplishing the deepest purpose of constitutional reform in our time: the achievement of stable, lasting national unity on democratic principles. If this is our goal, considering Our New Constitution is the means. Anything short of this risks missing the opportunity for constitutional renewal the present moment uniquely affords. And if we miss this opportunity, we may find ourselves, in a future nearer than we would like, without a Constitution to renew at all.
Citizen US is a tenured American professor writing pseudonymously for reasons explained herein. S/he may be reached by email at [email protected].
