Despite the threat of wars in Ukraine and Israel dangerously escalating and a U.S. government that seems in permanent gridlock, Americans face an even more dramatic challenge: the Constitution.
Is the Constitution fit for its purpose today having served this nation well in the past?
Three reasons explain why it’s not. First, the societal, political and economic differences between America in 1788, when the Constitution came into force, and today lack adequate description. Are they now so great that the Constitution cannot adjust to them? Back then, voters were limited to male, white landowners and political parties were not mentioned in the Constitution. The Electoral College could work. Today, is it an anachronism?
Should the popular vote elect the president? No resolution is viable without a constitutional convention to revise and change it. That has virtually no chance of occurring. Hence, presidents, certainly in 2024, will be elected by 100,000-200,000 voters in a half dozen states and not by a majority of citizens.
The Constitution is based on a balance of power among three so-called equal branches of government. This arrangement works only when a measure of compromise and civility are present. That failed in 1860. And it is failing today. Civility and compromise are missing in action.
Also, a balance of power no longer exists. For a time, “The Imperial Presidency” meant that the executive had become too powerful. Today, it is the Supreme Court. The court assumed it had the authority to declare laws unconstitutional in Marbury v Madison, but that authority was never explicitly granted in the document. This is now an issue as to how the court has become so supreme.
Current courts have rendered decisions on issues such as reproductive rights and Second Amendment gun control that are inherently political and social, not legal. Given the extreme and possibly irreparable divisions in America today, these decisions provoked a huge backlash. As a result, public trust in the court has never been lower.
Another argument against its fitness is a need to define succession in the 25th Amendment. Unlike the president, no definition exists as to when or whether the vice president is declared incapacitated. That raises a very significant flaw.
If that happens, the president pro tempore assumes temporary duties as president of the Senate. Suppose, however, that person is of a different party. That becomes critical when the Senate president’s vote breaks a deadlock. Similarly, if the Speaker becomes president as a result of both the president and vice president becoming incapacitated, party affiliation is critical. The Constitution fails to address that possibility. That is a profound failing.
Additionally, while the filibuster has become part of the Senate to delay legislation, the Constitution did not anticipate the ability of one member to disrupt government. Sen. Tommy Tuberville (R-Ala.) has blocked the promotions of nearly 500 flag and general officers, in essence crippling the Department of Defense. That means on some larger issue, can one senator disrupt government? Could this affect most profound decisions such as declaring war?
The Constitution is silent on this.
Other nags would be to eliminate no longer relevant amendments such as the Seventh Amendment. It states: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” This amendment is not consistent with the 21st century. Similarly, perhaps it is time to reconsider the 22nd Amendment that limits a president to two elected terms.
What can be done? Thomas Jefferson suggested that each generation should revise the Constitution to fit current circumstances. As noted, amending the Constitution today is realistically impossible. And for certain jurists who hold to interpreting the document as it originally was intended, that raises major questions.
The Second Amendment looms large here. Given the political deadlock between the two parties, perhaps the best compromise is to convene a congressionally mandated commission that can focus on specific aspects of the Constitution such as keeping the branches more equal, succession and defining how and when the vice president is declared incapacitated. Party differences if the Speaker or president pro tempore are elevated to the presidency of the nation and the Senate at least should be addressed.
Perhaps most importantly, congressional rules might be found to deal with the unfortunate disappearance of civility and compromise. And it is possible that the Supreme Court might be subject to certain rules of conduct and ethics to remove any doubt of extreme partisanship.
Otherwise, these flaws in the Constitution raise profound questions over the future governability of America.
Harlan Ullman is a senior advisor at the Atlantic Council and the prime author of the “shock and awe,” military doctrine. His 12th book, “The Fifth Horseman and the New MAD: How Massive Attacks of Disruption Became the Looming Existential Danger to a Divided Nation and the World at Large,” is available on Amazon. He can be reached on Twitter @harlankullman.