Third American Constitution

For those of us who love America, it is high time to acknowledge that we cannot continue to operate a 21^st century country with an 18^th century constitution, however great accomplishment the constitutional document may have been at the time it was drafted.  

Congress has largely ceased to function, with the result that many of the things that Congress should be doing, from declaring (or not declaring) war to guaranteeing civil rights, are done instead by the executive branch or by the courts.  As of January2025, the approval rating of Congress was 21.5% (up from around 19% in January of 2024), making even the ratings of former President Joe Biden look stellar by comparison.[1]

Why?  Part of the problem is that the Senate is grossly malapportioned, with residents of small, mostly conservative states having up to 68 times the representation of larger states like California and New York.  As of this writing, 16% of the population of the country can elect 50% of the Senate, giving the small, mostly conservative states an effective veto over policies that are favored by large majorities in the country as a whole.[2]  This problem is made worse by the Senate’s filibuster rule, under which 40 Senators elected by 10% of the population can block most legislation.[3]

The other big problem is that Congress is ruled by money. Though the exact amount of time spent by congressmen and women is not officially recorded,it has been informally reported that the political parties ask representatives to spend 30 hours per week during their time in office asking for money to fund their re-election campaigns.[4]  Much of the money comes from extremely wealthy donors and from corporations, which under the 2010 decision of the Supreme Court in Citizens United v. FEC,[5]have effectively unlimited rights to fund political causes.[6]

The money problem is made worse by the fact that representatives are elected for two-year terms but can be re-elected for an unlimited number of additional terms, and by the fact that seniority qualifies them for committee chairmanships and other influential positions. In practice this means that all representatives are running for re-election the day after they are elected and are forced to continuously ask for money to support that effort.

According to open secrets.org, the average candidate for a seat in the United States Senate in 2018 spent well over $15 million to get elected and candidates for contested seats spent substantially more –  $23.8 million on average. Candidates for seats in the House of Representatives spent an average of over $2 million per candidate, with non-incumbent candidates spending much more, about $3.5 million.[7]

The result is that we have a government of money, by money and for money – representatives essentially vote the way that their donors want them to vote and figure out later how to justify whatever the vote was to their constituents. Senator Krysten Sinema’s refusal to approve crucial climate legislation unless a tax break for wealthy hedge fund donors was preserved is a blatant but my no means exceptional example of this problem.[8]    

The consequences of this dysfunction have been disastrous and are getting more so by the day.  For example:

·        The U.S. health care system is more expensive and achieves worse outcomes than the systems of practically all other developed countries, because conservative donors to political campaigns as well as drug companies and others with vested interests in the current system do not want to move to an efficient, single payer system;[9]

·        Income and wealth inequality in the U.S. is hugeand growing, and is worse than in any of the other G7 countries.[10]

·        The U.S. tax code is grossly unfair, too complicated, loaded with special provisions for wealthy donors and consistentlyfails to raise enough money to fund the programs approved by Congress;

·        Infrastructure is in bad shape, most of it getting a “D” rating from the American Society of Civil Engineers,[11]and investment in critical climate-related infrastructure is grossly inadequate because paying for new public investment is not popular with the wealthy donors who finance re-election campaigns;

·        Restrictions on women’s access to reproductive care, including but not limited to, abortion services, are rampant despite the fact that full access to reproductive care is broadly popular and despite opinion polls showing that a clear majority of Americans believe that abortions should be legal in all or most cases;[12]  

·        The integrity of our elections is at risk because national voting rights legislation has been stalled in the Senate, where conservative members would prefer to have the rules set by gerrymandered state legislatures that make voting more difficult for their political opponents.

Worst of all, our inability to get things done that are clearly in the public interest allows domestic and foreign advocates of authoritarian rule to claim that our system no longer works.  Donald Trump and other authoritarian wannabes can claim that they are the solution to our problems (“only I can fix it,” he once said) because the public is frustrated with the ineffective governance that is a fact of life in America.

American citizens generally do not know the details of how legislation has its way purchased through Congress, but they do know that they do not like what ends up getting done.  A recent summary of several polls reports that  64% of respondents think that the country is moving in the wrong direction.[13]

Constitutional Changes

It is not difficult to identify constitutional changes which could address these problems. The first would be to change the way voters are represented in Congress so that most legislation can get done with a majority vote representing the majority of the voters.  This would require either abolition or major restructuring of the Senate or a change in its functions such that it could not block popular legislation.

The second would be to change the way that congressional representatives are elected to reduce the influence of money.  Most likely, these changes would eliminate or drastically curtail re-election campaigns -- elect members for somewhat longer terms, e.g., three or four years, limit all members to one or at most two terms, prohibit or limit fundraising by members while in office, and provide stringent ethical limits on former members’ ability to work with the government after they leave.  

Taken together with meaningful campaign finance reform, including public funding for campaigns, these changes could change membership in Congress from a life-long career to an opportunity to do public service for a limited time, and would substantially reduce the influence of money in national politics.

Limitations of Amendment Process

Changes like those proposed above have not been adopted nor are they likely to be adopted under the amendment process set forth in Article V of the Constitution.  Article V provides that a constitutional convention may be called either by a two-thirds vote of both houses of Congress or upon the application of two-thirds of the state legislatures.  However, it also provides that amendments require approval from three-fourths of the state legislatures, that no amendment can ban the slave trade prior to 1808 and that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”[14]  

Since this process is not likely to allow abolition or restructure of the Senate, which is key to meaningful reform, the question becomes whether future attempts to change the Constitution are or should be limited by the prescribed process for amendments.  For the reasons stated below, the answer is clearly no.

First, we should remember that the constitutional convention of 1787 was called for the purpose of revising the Articles of Confederation, not writing a new constitution.[15]  In the event, the founders decided that the Articles could not be salvaged, ignored the amendment process set forth in the Articles and ended up overwriting the Articles with a completely new document.  If they did it, so can we.  

The other thing to remember is that the Constitution was written under duress, at a time when  the country was at risk of disintegrating and where the task at hand was to figure out if there was some way, any way to write a charter that would work and that all of the states or at least most of them would ratify.  The result was a document which made huge compromises, which were driven not by any principled decision-making process but by the political necessities of 1787 – the country was at risk of disintegrating, something had to be done and failure was not an option.  

One issue that threatened to derail the 1787 convention was the fight between small states, like New Jersey, that wanted every state to have equal voting rights in Congress, and larger states, like Virginia, that wanted voting to be based on population.  In the end the founders split the difference and created a two-chamber Congress, one in which voting was based on population(the House) and the another in which each state had equal votes (the Senate).[16]  

While this compromise, a/k/a the Great Compromise, solved the immediate political problem, no one believed then or now that a Senate is in any way critical or even necessary to the survival of democracy or our federal system.[17]  To the contrary, the Senate has become a huge problem for our democracy and it has become increasingly clear that we would be better off without it.[18]

Another compromise made at the convention dealt with how the President should be elected – one faction argued that the President should be chosen by Congress, another by the state legislatures, and another by popular vote.[19] The popular vote option was controversial because many of the delegates did not believe that the common people were intelligent or well informed enough to vote for the President.[20]

In the end, this issue was compromised by the electoral college system, under which each state appoints “electors “in such manner as the legislature thereof may direct,” who then elect the President.

Again, while this compromise settled a difficult political issue in 1787, it is hard to see how the electoral college process  is either useful or necessary to the effective functioning of our democracy at this time– and in fact, that process is dysfunctional and harmful in several ways.

Because most states award all of the electors to the candidate who wins the popular vote, presidential campaigns do not even bother courting voters in major urban states like California, Illinois and New York.  Instead, their efforts are focused on a few politically purple “swing” states in the Midwest where both parties have a chance to win and gather all of the electoral votes of those states.  

Worse, the design of the process is such that the loser of the popular vote can nevertheless win the electoral college vote and hence the presidency, as happened in 2000 and again in 2016.  Unless we continue to believe that the votersare not intelligent enough to vote for the President, a constitutional change requiring the President to be elected by popular vote is clearly warranted.

The obvious way to address allof this would be a constitutional convention, called for the purpose of revising the Constitution – it could end up superseding the Constitution, as happened with the Articles of Confederation, but it needs to happen.

It should be noted that there have been several attempts to call a constitutional convention, at least three of which have been in the 20^th century, but to date none of these has been successful.[21]  Proposals for a convention have ranged from those with a specific agenda, e.g., to adopt a balanced budget amendment, to proposals calling for structural reform, e.g., eliminating the electoral college and providing for direct election of the President, limiting the influence of money in politics and providing term limits for Senators and Representatives.  At least one of these efforts has been credited with prodding Congress to adopt the 17^thamendment, providing for the direct election of Senators.[22]

There are some who fear what might come out of a convention, particularly because most of the calls for one to date have come from conservative states and right-wing political groups.[23]  These fears are amply justified given the history of the first constitutional convention, which was called for the purpose of amending the Articles of Confederation but ended up abandoning the Articles entirely and writing a completely new document.  Nevertheless, the need for change is acute and, given the rightward bias of the current constitution, progressives who want to modernize the  country would have much to gain and little to lose by calling for a conventional to consider fundamental change.

The outcome of a constitutional convention is difficult to predict because there are no rules in place for how it would work – Article V provides none other than rules governing the calling of the convention and ratification of the convention’s work. However, it is hard to see an outcome that would leave us in a worse place than where we are now.

One possibility is that the convention once called would do nothing and dissolve after a dispute about rules – not unlikely, since no political faction is likely to approve rules for representation and procedure under which it could be outvoted.  Even that outcome, however, could have some positive effects because it would at least start a conversation about the problems with the current constitutional order and perhaps generate support for amendments at some future date.

Another possibility is that the conventioneers would pass a few amendments which, while not dealing with core problem of the Senate, could at least make the system work better than it does now.  For example, there appears to be substantial support for term limits across the political spectrum, as well as a broad consensus that action is needed to limit the influence of money in politics.  This could conceivably result in amendments providing for term limits (which would be constructive for the reasons outlined above), overruling Citizens United v. FEC and outlawing campaign financing by corporations, unions and other institutions.  

Another possibility is that the convention could adopt an amendment providing for direct election of the President.  While support for this on the right is hard to gauge, such a measure could have broad appeal given the problems with the electoral college process that surfaced after the 2020 election.  It should also be noted that a similar amendment was passed early in the 20^th century providing for the direct election of Senators.[24]

The other possible outcome is that different factions at the convention would seek to rewrite the Constitution in major ways that would be unacceptable to other factions  -- for example, conservatives could propose amendments requiring a balanced Federal budget, limiting or prohibiting Federal involvement in health care (Medicare/Medicaid) and/or repealing the income tax, while progressives would propose abolishing the Senate, establishing basic health care as a right of citizenship and making privacy an explicitly  guaranteed constitutional right.  

If it turns out that substantial numbers of delegates from different factions have radically different ideas about the way forward, the discussion could and probably would turn to division of the country – states whose delegates could not live with the vision of the others could secede, ratify their own version of the new constitution while the others would ratify their version and become a separate political entity.  

Would this be bad? Not necessarily.  

The state of Texas has repeatedly claimed that it has the right to secede from the union, and perhaps the time has come to encourage Texas to do exactly that.  Texas could form a confederation with other right-leaning states, adopt its own constitution reflecting its conservative priorities, and then lead the confederation to the conservative nirvana that would doubtless be reached by putting their ideas into practice.

Meanwhile, the rest of us could go in a different direction, and over time we would learn which system works better.

As to the other states, it is difficult to see how states like California, New York, Illinois and others – would have much to lose by going their own ways.  As matters now stand, they all pay substantially more to the Federal government in taxes than they receive in Federal benefits.[25]  Due to the fact that they have been substantially disenfranchised in the Senate, they have to live with policies they do not like formulated by politicians in states that they subsidize, like Kentucky and West Virginia, who are completely unaccountable to their voters.  

These states also have to cope with the fractured and inefficient national health care system, which they could easily replace with a more efficient single-payer system of their own – and use the money they currently pay to the rest of the country to pay for it.

There would be issues that would need to be addressed if the country were to divide, but solving these could be easier at least in the long run than living with current arrangements. For example, the parties could provide for collective defense through treaty arrangements which would require each contracting state to pay a fair share of defense expenses.  As a bonus, this arrangement would allow each of the contracting states to have a meaningful voice on decisions relating to the size and mission of the military.  

A similar approach could be taken to many other Federal agencies, e.g., the National Weather Service or the Federal Aviation Administration, that provide services to the nation as a whole.  One state or the other would take responsibility for rendering these services and be paid a fair share of costs by the other contracting state or states who want to purchase the services.  Agencies whose services were not wanted by either state would be disbanded.

At the end of this process, we could end up with a structure not unlike the European union, where most functions would be retained by nation members but where structures would be created to pool the resources of individual states where it made sense to do so.    

Conclusion

The Constitution of the United States was a brilliant political achievement at the time it was adopted, and we should continue to honor the founders of this country for their work.

However, we must also admit that the Constitution was written to deal with the political necessities of 1787 and is inadequate and inappropriate in basic, structural ways for the conduct of our democracy in the21^st century.  

If we are serious about representative democracy, we cannot tolerate a system under which residents of small states have nearly 70 times the voting power of the residents of large states.  We also cannot abide a system under which elected officials are responsible primarily to donors to their reelection campaigns and not to the voters whom they purport to represent.  

If the principle of one person one vote means anything, we cannot continue to live with a system under which the loser of the popular vote can be elected President.

There is nothing unpatriotic about raising these issues and demanding structural change. In 1787, our founders concluded that our first constitution, the Articles of Confederation, was not working and wrote a new one, not because they hated the country but because they loved it. If they could do it so can we, and it is far past time to get started.

J. Christopher Toews

San Luis Obispo, CA

© January 2025

[1] Five Thirty Eight reported former President Biden’s approval rating at 37% as of January of 2025.

[2] Voting rights legislation, immigration reform, drug price legislation, women’s reproductive rights, to name a few.

[3] Hubert, David, Attenuated Democracy:  “The United States Senate is not an especially democratic representative body. Indeed, journalist and former congressional candidate Norman Solomon wrote that “today, the U.S. Senate is the most undemocratic elected body in the nation.”  [slcc.pressbooks.pub/attenuateddemocracy/chapter/chapter-24]  

[4] issueone.org/articles/the-congressional-fundraising-treadmill-5-key-numbers-to-know-from-the-newest-house-and-   senate-campaign-finance-filings

[5] 558 U.S. 310 (2010)

[6] It has been reported that in the 2018 election cycle, the top 100 donors to super PACs contributed nearly78 percent  of all super PAC spending.[Brennan Center for Justice,  https://www.brennancenter.org/our-work/research-reports/citizens-united-explained].  In the 2024 elections, the world’s wealthiest person Elon Musk reportedly spend $277 million to support Donald Trump and Republican candidates.  

[7] Karl Evers-Hillstrom, State of Money in Politics: The price of victory is steep (February 19, 2019) [opensecrets.org/news/2019/02/state-of-money-in-politics-the-price-of-victory-is-steep]

[8] Sorkin, Giang et al., ATax Loophole’s Powerful Defender, New York Times (Aug. 5, 2022)

[9] “The United States trails far behind other high-income countries on measures of health care affordability, administrative efficiency, equity, and out comes." The Commonwealth Fund, Mirror, Mirror 2021: Reflecting Poorly [commonwealthfund.org/publications/fund-reports/2021/aug/mirror-mirror-2021-reflecting-poorly]

[10] [wikipedia.org/wiki/List of countries by wealth inequality]; Siripurapu, Council on Foreign Relations, The U.S. Inequality Debate, April 2022 [cfr.org/backgrounder/us-inequality-debate]

[11] https://infrastructurereportcard.org

[12] Pew Research Center (June2022) [pewresearch.org/fact-tank/2022/06/13/about-six-in-ten-americans-say-abortion-should-be-legal-in-all-or-most-cases-2].

[13] https://www.realclearpolling.com/polls/approval/congressional/approval-rating.

[14] “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article [dealing with the slave trade]; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

[15] Congress declared, on February 21, 1787, “that there are defects in the present Confederation” and resolved that a convention should be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation . . . and to render the Federal Constitution adequate to the exigencies of Government and the preservation of the Union.” Constitutional Rights Foundation [crf-usa.org/bill-of-rights-in-action/bria-25-2-the-major-debates-at-the-constitutional-convention]

[16] [mountvernon.org/george-washington/constitutional-convention/issues-of-the-constitutional-convention].  It should be noted that Congress under the Articles of Confederation had only one chamber in which each state had one vote.

[17] See, e.g., Primus, Federalism and the Senate (November 2018) [takecareblog.com/blog/federalism-and-the-senate],in which the author points out that whatever rationale that existed for having states represented as entities went away when the Constitution was amended to provide for the direct election of Senators.  

[18] See note 3 above, in which the author suggests that abolition of the Senate would be a step forward.

[19] Constitutional Rights Foundation, supra.

[20] Constitutional Rights Foundation, The Major Debates at the Constitutional Convention [crf-usa.org/bill-of-rights-in-action/bria-25-2-the-major-debates-at-the-constitutional-convention.html]

[21] Second Constitutional Convention of the United States [https://en.wikipedia.org/wiki/Second

Constitutional Convention of the United States]

[22] Ibid.

[23] Leachman and Super, States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues (Center on Budget and Policy Priorities, Jan. 18, 2017). The right-leaning American Legislative Exchange Council (ALEC) has even drafted a model resolution for adoption by states, the  “Article V Application for a Federal Fiscal Responsibility Amendments Convention,” that would call a convention for the purpose of passing a balanced budget amendment and otherwise restricting the powers of the Federal government.

[24] The 17^thAmendment to the Constitution was approved by Congress in 1912 and ratified the following year.

[25] As of 2024, California alone paid over $83 billion more in Federal taxes than it received in Federal payments.  

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