U.S. Constitutional Amendments: Liberty, Bipartisanship, State Labs

This article explores the potential future of America's Constitution, focusing on amendments that could be added. It proposes three guiding principles for these future amendments, drawing lessons from past constitutional changes and the experiences of state constitutions.

Principles for Future Constitutional Amendments

The discussion outlines three core principles that should guide the consideration of future constitutional amendments:

1. Enhance Liberty and Equality: Future amendments should ideally expand, rather than diminish, liberty and equality. This principle is rooted in the historical trajectory of U.S. constitutional amendments.

   • Historical Precedent: The Constitution, from its inception, was more democratic and egalitarian than previous systems. The Bill of Rights, the 13th, 14th, and 15th Amendments (ending slavery, promising equal citizenship, black suffrage), the 19th Amendment (women's suffrage), and the 17th Amendment (direct election of senators) all expanded freedom and equality. More recent amendments, like those eliminating poll taxes and lowering the voting age to 18, continued this trend.
   • Exception: The only notable exception to this pattern was the 18th Amendment (Prohibition), which was later repealed by the 21st Amendment, suggesting that amendments that restrict liberty tend to be unsuccessful or temporary.
   • Application: An amendment that, for example, restricts marriage to one man and one woman would contradict this historical trajectory by reducing existing liberty and equality. Conversely, an amendment affirming equal marriage rights for all, regardless of sexual orientation, would align with the historical expansion of liberty and equality. Similarly, an amendment making flag burning a crime would limit First Amendment rights, going against the established pattern of expanding freedoms.

2. Bipartisan Support: For an amendment to be successfully ratified, it will practically require support from both major political parties.

   • Ratification Process: The high bar for ratification—two-thirds vote in both the House and Senate, and ratification by three-fourths of the states—makes it extremely difficult to pass an amendment without broad, bipartisan consensus. This reflects the "partisan constitution" dynamic in American politics.

3. Reflect State Constitutional Experience: Amendments often emerge from ideas first tested and proven at the state level.

   • States as Laboratories: Historically, states have served as "laboratories of experimentation," road-testing various constitutional ideas before they are adopted at the federal level. Examples include written constitutions, bills of rights, bicameral legislatures, and strong executives.
   • Examples: Many states abolished slavery, granted suffrage to Black citizens, and allowed women to vote before these rights were enshrined in the federal Constitution. This pattern suggests that successful federal amendments often follow state-level precedents.

Potential Future Amendments

Applying these principles, two specific amendment ideas are explored:

1. Eligibility for the Presidency for Naturalized Citizens

• Proposal: An amendment allowing naturalized U.S. citizens, who immigrated at an early age and have contributed significantly to society for many years, to be eligible for the presidency. Currently, only natural-born citizens can be president.
• Alignment with Principles:
  • Adds to Liberty and Equality: This amendment would expand the concept of birthright equality, extending it to naturalized citizens and affirming that all individuals, regardless of their place of birth, can achieve the highest office if they are dedicated to the country.
  • States Have Road-Tested It: States have already implemented versions of this idea. For instance, Arnold Schwarzenegger, a naturalized citizen, served as Governor of California, and Jennifer Granholm, born in Canada, served as Governor of Michigan. Governors hold powers similar to presidents (four-year terms, veto power, pardon power), demonstrating the viability of naturalized citizens in high executive office.
  • Potential for Bipartisan Support: While currently a contentious issue, there's a potential for future bipartisan support. For every prominent Democrat who might benefit (e.g., Madeleine Albright, Jennifer Granholm), there's a Republican (e.g., Henry Kissinger, Arnold Schwarzenegger). The Republican party, to appeal to growing Hispanic and immigrant demographics, may eventually need to propose its own version of an immigration reform, potentially including such an amendment. Senator Orrin Hatch, a conservative Republican, proposed such an amendment in 2003, indicating historical bipartisan interest.

2. Abolishing the Electoral College

• Proposal: An amendment to abolish the Electoral College and move to a system of direct popular vote for the presidency, based on the principle of "one person, one vote."
• Alignment with Principles:
  • Adds to Equality: This amendment would enhance equality by ensuring every citizen's vote counts equally, regardless of their state of residence. The Electoral College is rooted in historical compromises related to slavery, and its abolition would further an egalitarian ideal.
  • States Have Road-Tested It: States already use a direct popular vote system to elect their governors. There is no "electoral college" for state-level executive elections; votes are simply counted, and the candidate with the most votes wins.
  • Potential for Bipartisan Support: The Electoral College's impact is not consistently skewed towards one party. While it helped George W. Bush in 2000, it could have helped Al Gore that year, and John Kerry could have won it in 2004 despite losing the popular vote. Similarly, in 2012, there was speculation that Barack Obama could lose the popular vote but win the Electoral College. This suggests that neither party has a permanent advantage under the current system, making both potentially open to reform. The current balance of power, where Democrats win more large states (benefiting from winner-take-all) and Republicans win more smaller states (benefiting from minimum electoral votes), creates a rough equilibrium that might make both parties consider a change.

The "American Way" of Constitutions: Similarities and Variations

The article highlights 10 profound similarities across the 51 American constitutions (one federal, 50 state), demonstrating a unique "American way of doing things" or "American exceptionalism."

10 Similarities:

1. Written Constitutions: All 51 constitutions are written documents.
2. Popular Sovereignty: All reflect a special idea of popular sovereignty, distinct from ordinary legislation.
3. Bills of Rights: Almost all have bills of rights, typically in a separate section and judicially enforced.
4. Bicameral Legislatures: Legislatures are bicameral (except Nebraska) with fixed terms.
5. Single-Member Districts & Two-Party System: Predominantly single-member districts and a two-party system (Democrats and Republicans).
6. Strong Presidentialist System: All states have an independently elected governor with a fixed term, mirroring the federal presidency.
7. Constitutionally Specified Executive Understudy: A constitutionally defined vice president or lieutenant governor as the next in line.
8. Judicial Review: Every court can enforce the constitution (state and federal).
9. Common Law Adjudication: A system where courts can recognize rights and duties through judge-made common law.
10. Juries: Juries are an important part of the legal system.

Despite these similarities, the next lecture will explore how, on each of these points, at least one state (and often many) does things slightly differently. These variations create opportunities for future constitutional reform, prompting questions about whether states should conform to the federal model, or if the federal model should adapt to successful state practices, or if the current diversity serves a beneficial purpose. By examining these "state laboratories," insights can be gained into potential future federal or state constitutional reforms.