Quick Thoughts On Constitutional Amendments I’d Like

It’s clear to everyone-and I mean everyone-that the Constitution badly needs amendments. Here are my thoughts about what those should be with the caveat that I set a timer for 12 minutes to put these down.

Although I often strive to present relatively evidence-based recommendations in areas of my expertise, what follows is more a spur toward better theorizing than a distillation of disciplinary wisdom. But, lets face it, part of never letting a crisis go to waste is acting on our instincts tempered by evidence. The whole point of a crisis, after all, is that matters are unsettled–and when they are unsettled, extrapolations from the past should be radically discounted.

End Lifetime Tenure for Supreme Court Justices

Part of the issue with the Merrick Garland nomination that led to Senate Republicans successful dynamiting of norms was that Garland could have served for decades, challenging Republicans now generations-old lock on the bench. One way to make succession planning easier–and the Court more responsive to the superior branches of government–would be to end lifetime tenure for justices. My favorite version of this plan would be to give every Court member a 14-year term, staggered at two year intervals; that would ensure that every President would get to make at least two nominations and every Senator would have to vote at least once. Ensuring regular turnover on the Court would go a long way toward making confirmation fights less apocalyptic, and that should be a major issue going forward.

24-year Term Limits for Legislators

I know political scientists have a ton of evidence showing that short term limits (two or three terms) weaken legislatures. But the cases that drive people actually crazy are the ones in which some senator or representative gets elected from a safe district and stays there until they literally die of old age–or, in cases like Strom Thurmond, arguably after they have actually passed on. Establishing a 12-term limit for representatives or a 4-term limit for Senators would end that abuse. Even though wed lose some good legislators (the Lugars of the world, for instance), wed also end the worst abuses of senatorial seniority and other stupidly antimajoritarian traditions.

Better Continuity of Government

For about two weeks after 9/11, people wondered what would have happened if the fourth airliner had hit the Capitol while Congress was in session. (That would have made the Tom Clancy parallels way more explicit.) The possibility that the legislature could be disrupted by a catastrophic terrorist or other incident is still live; I think most of everything in this Brookings report is still valid. Attention to filling mass vacancies is not a silly idea.

At the same time, we need to figure out the presidential line of succession. Arguments abound that, e.g., the current line of succession is unconstitutional (because the Speaker and President Pro Tem arent officers of the United States), that its dumb (because an accident could switch partisan control of the executive branch), that it could lead to constitutional crises (what if the President, VP, and Congress die, leading a Cabinet officer to take over–but a rump Congress meets and elects a Speaker of the House, who would then bump the new President?). Lets be clear: this has been an issue since John Tyler imaginatively re-read the Constitution to show that William Henry Harrison’s death made him President, not a Vice President acting as President. And the 25th Amendment did not really clarify issues.

Constitutional Guardianship

The Germans have a better mechanism for guarding the Constitution by enforcing political questions than the US does. In times of crisis, the US has turned to various extraconstitutional methods to resolve disputes (the 1876 election is an underrated constitutional crisis!), but there remains a role for a better mechanism for actively enforcing constitutional provisions beyond the whims of this or that election.

Enshrining Constitutional Rights to Representation

The Constitution needs to reflect contemporary core philosophical understandings of representative politics. That entails a right to vote, federally enforced; a repeal of state legislatures right to appoint electors; and a linking of electors to the popular mandate.