Is Fundamental Change Possible?

The Constitution is part of the myth of American Exceptionalism and we are loathe to change it. But to thwart our trend toward authoritarianism, we must make government more responsive to the people.

Image by W. Scott McGill licensed from Adobe Stock; question mark added by the author.

Welcome Back to Win-Win Democracy

President Biden’s selfless and patriotic decision to drop out of the presidential race in favor of Vice President Harris has unleashed an astonishing surge of energy and support for Harris to become our first Madam President. More importantly, this energy and support could very well deny Donald Trump and the Project 2025 crowd the opportunity to turn our country into a theocratic, Putin-style oligarchy. I am more optimistic for the near future than I’ve been in a very long time.

Yet, our work to preserve American democracy is hardly done. Even if we elect Harris and gain a Democratic majority in both houses of Congress, I remain deeply concerned about the future of the country during the time in which my young grandchildren will grow up and live their adult lives.

Our decline into anocracy and the escalating risks of violent conflict that implies (discussed last time) will continue unless we act to reverse it. As we also discussed, to reverse the decline to anocracy, we must convince most citizens that our government serves their needs and desires. The best way to convince them is to make it so!

Before we can discuss specific ideas for government to better serve people’s needs, I need to address the elephant in the room: With a dysfunctional and highly partisan Congress and a reactionary Supreme Court, how can we possibly hope to change the country’s trajectory in time to affect my grandchildren’s lifetimes?

American Exceptionalism

Let’s start with some background. When I was in (public) high school in the late 1960’s and early 1970’s, we had to take an American History course. It was a memorize-names-places-and-dates course, light on concepts and analysis. I remember little of it. But two concepts stuck with me: Manifest Destiny and the Constitution’s role in the success of America. These were both framed as part of American Exceptionalism, the idea that America is unique and better than other countries.

Even as a student, I knew that the fancy name Manifest Destiny was an attempt to justify westward expansion as moral, inevitable, and divinely inspired. The teacher would brook no discussion of the horrors inflicted on indigenous peoples excused in the name of Manifest Destiny.

The Constitution was taught as a near-perfect document written by wise, heroic, and perhaps divinely-inspired founding fathers who created a novel structure of checks and balances to forestall both an American king and tyranny of the majority.

Despite its obvious flaws, the Constitution, the story went, was what made America exceptional and why our democracy survived for almost 200 years. Like many Americans, I accepted this portrayal of the Constitution and its role in making America exceptional.

The pre-MAGA Republican Party embraced and promoted American exceptionalism and the Constitution. Here are the first six paragraphs of the 2016 Republican Party platform’s preamble:

“We believe in American exceptionalism.

We believe the United States of America is unlike any other nation on earth.

We believe America is exceptional because of our historic role — first as refuge, then as defender, and now as exemplar of liberty for the world to see.

We affirm — as did the Declaration of Independence: that all are created equal, endowed by their Creator with inalienable rights of life, liberty, and the pursuit of happiness.

We believe in the Constitution as our founding document.

We believe the Constitution was written not as a flexible document, but as our enduring covenant.”

American exceptionalism says that, yes, despite our flaws, our country is great, so don’t muck around with what made it great. Indeed, our country has been an astounding success in many important ways. But it has failed in other important ways, which has led to widespread dissatisfaction with politics and government.

American exceptionalism is false. History is replete with countries and empires that were astounding successes for centuries then declined or collapsed. There is no reason to believe that America is immune from the lessons of history.

In the now-famous scene from the HBO series The Newsroom, Jeff Daniels, playing the character Will McAvoy, dares to state that “America is not the greatest country in the world anymore”:

American exceptionalism is being used as a marketing slogan to duck responsibility for fixing what ails us. Let’s face that reality.

The Constitution’s Flaws

The Constitution, even as amended, is flawed in ways that make it nearly impossible to fix our longstanding governance problems.

Citizens Are Bestowed Unequal Voice

The Constitution bestows unequal voice to our citizens: Where you live determines how well you’re represented.

President. Starting at the top, the president is elected by the Electoral College, not by the national popular vote. Five presidents have been elected despite losing the popular vote. Because all but two states^⁠¹ have a winner-takes-all system of appointing their electors, if you live in a state that is either heavily Democratic or heavily Republican your vote for president doesn’t matter —  presidential candidates don’t spend their time and money in such states. In the 2024 election, voters in seven swing states effectively will choose the president while the rest of us look on.

Some argue that the Electoral College is part of the founding fathers’ genius and that they intended to give small states greater representation in choosing the president. In reality, the Electoral College, in conjunction with the Three-Fifths Compromise²,^⁠ was devised to preserve slavery. James Madison, often considered the father of the Constitution, advocated for national popular vote at the original Constitutional Convention and argued later in life for changing the Electoral College. The Electoral College was not an element of a brilliant plan, but rather a pragmatic compromise to bring the southern slaveholding states into the country. (A concise, fascinating history of James Madison and the Electoral College is available here.)

Senate. In the Senate, since every state, regardless of population, gets two senators, people residing in low-population states have far more voice per person than people residing in high-population states. One voter in Wyoming has the same representation in the Senate as 59 people in California. Citizens in Washington DC and Puerto Rico, which are not states, get no representation even though Washington DC has more citizens than both Vermont and Wyoming and Puerto Rico has more citizens than 20 states.

Further, as Nick Mourtoupalas explained in the Washington Post, because of the way different racial groups are distributed geographically, people of color are significantly less represented than white people; likewise, since the least populous states elect more Republicans than Democrats, Republican Senators maintain majority control of the Senate despite representing a minority of Americans.

The situation is made even worse by the Senate tradition of the filibuster, which requires that 60 votes, not 51, are necessary to pass most legislation. The filibuster amplifies the already unequal voice of citizens in the Senate.

House. The voice of the people in the House — the chamber of Congress that most directly represents the people — is badly distorted by gerrymandering of House districts. In my state of North Carolina, for example, total votes cast for House representative in districts across the state split nearly evenly across the two parties. Yet, the 2018 election yielded ten Republican and three Democratic representatives because the districts were heavily gerrymandered for partisan advantage. After the NC Supreme Court threw out the gerrymandered district maps in 2022, we elected seven Republican and seven Democratic representatives. After Republicans gained a majority on the NC Supreme Court in the 2022 elections, the state legislature once again created highly partisan gerrymandered maps, which the newly constituted NC Supreme Court permitted. As a result, it is now expected that the 2024 elections will yield either a 10-4 or 11-3 split.

If you happen to live in a House district gerrymandered to be strongly Republican or strongly Democratic — which most districts are — your vote in the general election for House representative  doesn’t matter. Representatives in such districts know that only the primary election matters, so they take positions that appeal to the most ardent partisans in their party, further weakening representation.

State Legislatures. Following the federal example, all states but Nebraska have a bicameral legislature (i.e., a legislature with two chambers), replicating at the state level the problems with the federal Senate and House:

• If a chamber’s districts are pre-determined (e.g., by county) with a fixed number of representatives per district, then people in low-population districts have more voice per person than people in high-population districts.

• If a chamber’s districts are determined by a political process, gerrymandering again rears its ugly head.

For example, North Carolina has both a state Senate and a state House, with districts for both determined by a political process, which results in heavily gerrymandered districts in both chambers.

Skewing of representation in state legislatures carries forward to the federal government in important ways:

• Federal elections are managed state-by-state, with each state having the power to set their own rules. There is a long, sordid, ongoing history of that power being used to disenfranchise certain people.

• Amendments to the US Constitution must be ratified by three-fourths of state legislatures (or state conventions).

Unequal voice in state legislatures worsens unequal voice at the federal level.

The Supreme Court is an Instrument of Minority Rule

The Constitution does not clearly delineate the Court’s power, which has allowed it, over time, to gain extraordinary, unchecked power to become an instrument of minority rule, frequently in service of the wealthy and powerful. Moreover, since Justices are appointed by the president subject to approval of the Senate, even their selection is tainted by the unequal voice citizens have in the Senate and in choosing the president. 

I’m not going to dwell on the problems with the Supreme Court here since we’ve discussed them previously, specifically in SCOTUS as an Instrument of Minority Rule and in other posts relevant to the Supreme Court’s role in the country.

Amending the Constitution is Excruciatingly Difficult

Amending the Constitution is excruciatingly difficult. In our almost 250-year history, Congress has proposed 33 Amendments of which 27 were ratified. The first ten Amendments are the Bill of Rights, which were proposed and ratified as part of the effort to get the states to ratify the Constitution itself. The so-called Reconstruction amendments (13^th-15^th) were ratified looking down the barrel of the Union Army’s guns.

Those almost 250 years have seen unimaginable changes in the country — the Industrial Revolution and the harnessing of energy sources; massive agricultural productivity improvements allowing only a few percent of our population to grow more food than we need; means of instant, free, portable communication; near-universal education and literacy; wide availability of books and other literature; the transition from animal-drawn conveyance to trains, cars, trucks, and planes; increased quality of life and longevity resulting from effective medical care; science yielding a better understanding of nature’s working; an astounding array of products forming the basis of a consumer economy; the rise of computing; and more.

Yet, despite these unimaginable changes, beyond the Bill of Rights and the Reconstruction amendments we’ve ratified only 14 amendments. Ten of these are what I’d call tinkering around the edges. Only four make significant changes to our governance: the 16^th (1913), permitting an income tax; the 17^th (1913), establishing direct election of Senators; the 19^th (1920), allowing women to vote; and the 24^th (1964), prohibiting voter disenfranchisement by poll taxes.

Some would argue that the difficulty of amending the Constitution is a feature, preventing us from making rash decisions without careful consideration. I’d offer the 18^th Amendment, Prohibition, ratified in 1919 and the 21^st Amendment, repeal of Prohibition, ratified in 1933, as a counterexample.

Conversely, although women constitute more than half of the US population, it took 80 years of effort to ratify the 19^th amendment, which allows women to vote, and, after 100 years of great effort, an amendment to bestow Equal Rights on women remains unratified.

Solving our most significant governance problems all require Constitutional Amendments. This includes overturning harmful rulings by the Supreme Court such as its interpretation of the 2^nd Amendment, its granting effectively peoplehood to corporations, its allowing unlimited intrusion of money into campaign finance, and, most recently, granting the president unlimited immunity from criminal prosecution.

Why is it so difficult to amend the Constitution? Primarily because the unequal voice mechanisms that we’ve just discussed for the Senate, House, and State Legislatures come into play throughout the process, making an already-high threshold for action nearly impossible. An amendment is initially proposed by either two-thirds vote of both the House and Senate or by two-thirds of the States.

Consider the implications of this requirement in the Senate alone: It takes 67 votes in the Senate to propose an amendment, so 33 Senators can block a proposed amendment. Conceivably, the Senators from our 17 lowest-population states could block a proposed amendment, yet the Senators from those states represent under 7% of our population.³ To be adopted, a proposed amendment must be ratified by three-fourths of the state legislatures, each of them potentially affected by the unequal voice problems we’ve already discussed.

The bottom line is that an already-high threshold is made nearly impossible when the unequal-voice aspects of the Senate, House, and state legislatures are cascaded on top it.

The Constitutional Bind

In April, Aziz Rana, who is a law professor at Boston College Law School and also holds a Harvard Ph.D. in political science, published the book The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them. I became aware of this book through Jedediah Britton-Purdy’s extensive review The Creed: How did Americans come to worship the Constitution?” published in the July 2024 issue of The Nation. Last month, the New York Times non-fiction book critic Jennifer Szalai also reviewed the book in The Constitution Is Sacred. Is It Also Dangerous?.

Britton-Purdy observes that the Supreme Court and some of its justices have been vilified recently for deeply unpopular rulings on abortion, guns, and affirmative action. But even liberals return quickly to “faith in the Constitution as the keystone of the country and the safeguard of American democracy.”

Britton-Purdy goes on to introduce the book:

“In his fascinating and powerful new book, The Constitutional Bind, Aziz Rana calls this faith in the Constitution’s essential goodness “creedal constitutionalism” and urges Americans to reject it, perhaps along with major parts of the Constitution itself. His book is much more than a progressive critique of Constitution worship: Rana presents a sweeping history of constitutional politics from the late 19^thcentury to the present that reverses much of what Americans have learned to accept about the Constitution’s meaning. He portrays creedalism as a relatively recent phenomenon, a product of the 20th century, and contends that putting the Constitution at the center of American civic culture has abetted authoritarian and repressive agendas as much as it has upheld civil libertarian or democratic ones. And against the assumption that the Constitution is purely a domestic matter, he finds key moments in our constitutional culture developing through the United States’ imperial adventures and geopolitical contests.”

Rana himself says (p. 36-37):

“The time has come to reconsider the value of US constitutional exceptionalism, including the continued embrace of an order that has proven ill-suited for a collective American project aimed at equal and effective freedom. Today’s brand of creedal constitutionalism is a real hindrance to serious discussion of institutional and social change. It promotes a persistent retreat into a politics of constitutional veneration, which has had the effect of naturalizing a fundamentally undemocratic order.”

I urge you to read Britton-Purdy’s entire review and, if you can lay your hands on it, Chapter 1 of Rana’s book, entitled “The American Constitutional Romance.”

Recognizing creedal constitutionalism is a necessary step in having discussions about what we might do to reshape American democracy to be responsive to ordinary people’s needs and wants. We simply can’t get the job done with a business-as-usual approach with the deck as stacked as it is.

The Danger of Article V Conventions

Article V of the Constitution offers an alternative way to amend the Constitution: At the request of the legislatures of two-thirds of the states (currently, 34), Congress “shall call a Convention for proposing Amendments.”

Such a convention has never been called and scholars have debated how such a convention might work.⁴ Since 1960, the states have submitted more than 180 applications for Article V conventions on various topics. Congress has never considered the threshold met. But the rules aren’t clear. If a state requested a convention 100 years ago is that request still valid? Do requests all have to be on the same topic to count towards meeting the threshold? If a convention is called, how are the delegates chosen and how does the convention make decisions. Congress seemingly has a free hand to define the rules, subject, of course, to SCOTUS review.

Stepping into this uncertainty is a well-funded and organized effort by Republicans to use an Article V convention to, as Duke University historian Professor Nancy MacLean (author of the groundbreaking book Democracy In Chains) puts it in a February 2024 article in New Republic, “eviscerate core rights and protections most Americans hold dear.”

MacLean describes the organization Convention of States Action, a non-profit driving an effort to call a convention. They’re supported by big names in the right wing, including the Koch brothers network and the Heritage Foundation, as well as Republican notables like Speaker of the House Mike Johnson (who would have a hand in deciding the rules for meeting the threshold to call a convention), Mark Meadows, Ron DeSantis, Greg Abbott, and Sean Hannity. They’ve held three practice conventions, with the one in August 2023 adopting six amendments. Check out their website; they’re not bashful about laying out their goals and touting how close they are to success.

Common Cause, a non-partisan organization that describes itself as “dedicated to upholding the core values of American democracy” and which is a leader in fighting gerrymandering in both federal and state courts, recognizes three additional major campaigns for an Article V convention: the Balanced Budget Amendment campaign, supported by the Koch-brothers-supported American Legislative Exchange Council (ALEC), the Wolf-PAC campaign, and the term limits campaign.

By Common Cause’s count (remember — the rules are unclear), 28 states have called for a convention, just six states shy of the 34 states needed.

Given that an Article V convention would be called and run under rules yet to be defined, with delegates selected by a yet unknown process, and that the major efforts to call such a convention are being driven by well-funded, well-organized right-wing organizations, there’s good reason to be alarmed.

Common Cause is leading efforts across key states to convince their legislatures to “reject and rescind calls for a convention.”

The Opportunity of Article V Conventions

As both Professor MacLean and Common Cause have made clear, an Article V convention called under current conditions would be extremely dangerous to American democracy. Indeed, I have signed Common Cause’s petition to reject calls for Article V Conventions and have donated to support their efforts.

But I wonder if there isn’t also opportunity in Article V Conventions if appropriate circumstances could be created. Let’s think outside the box about this for a few moments.

When there is danger in choosing to take an action, we must also consider the danger of the corresponding inaction. Jumping out of a second story window of your house is dangerous. But if the house is on fire, jumping might be your best chance to save yourself. Or, it might be better to wait for the firefighters. It depends on the circumstances.

As we discussed last time, there’s posturing about civil war and we’ve been through a violent insurrection at The Capitol intended to stop the peaceful transfer of presidential power. We’ve already had one civil war, and it was horrendous. It forced us to eliminate slavery, at least on paper, via the Reconstruction Amendments. But as historian Heather Cox Richardson explains in her book How the South Won the Civil War: Oligarchy, Democracy, and the Continuing Fight for the Soul of America, “[f]rom Reconstruction through World War II, Americans recreated a hierarchical society” with wealthy white men once again at the top. That struggle continues and the oligarchs are winning.

We are approaching the anocracy danger zone for civil war. A modern civil war would be much, much worse than our first one.

Could an Article V Convention provide an opportunity to reshape American Democracy in ways that could help to avoid civil war and deliver real freedom to more people?

What Next?

It’s a hard question to answer, but that’s what I want to start discussing next time. Are there conditions under which various constituencies could get enough of what they want to be willing to compromise at an Article V convention? In other words, are there win-wins for some of the deep, polarizing disagreements we have?

Stay tuned …

1. Although people born in Puerto Rico and a few other US territories are US citizens, those territories are not granted electors. Citizens of the District of Columbia were granted electors by the 23rd amendment, ratified in 1961.

2. Although slaves could not vote, three-fifths of slaves were counted when determining the number of electors for a state. This gave southern states enough electoral power to compete with northern states.

3. Based on 2020 census data, the 17 lowest-population states have a combined population of 22.6M, while the combined population of all 50 states is 334.9M.

4. The Library of Congress Constitution Annotated provides a concise overview of the key issues here.