How should the US rewrite its constitution?

Keep up with the times.
Keep up with the times.
Image: Reuters/Kevin Lamarque
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After a heated confirmation hearing last week, Amy Coney Barrett is expected to be confirmed as a new US Supreme Court Justice on Oct. 23. It’s been a tense process, because the political power of a Supreme Court justice is enormous—a president gets at most eight years to shape the law but a Supreme Court justice has a lifetime appointment to decide whether laws are constitutional.

To be sure, bodies comparable to the Supreme Court exist in most democracies, yet their political power is rarely as significant as in the US. That’s because the US Constitution is exceptionally abstract compared to those of other countries, leaving justices with a large margin for interpretation.

If the Constitution was more specific—spelling out in detail the policies and procedures for how the government should operate—the political investment in the Supreme Court wouldn’t be so high. But a more specific constitution might not have survived, albeit with amendments, to be used 233 years after it was written.

Abstract, and rigid

“Our constitution is from the 18th century, and if you think about it, there aren’t many other technologies from the 18th century that we’re still using,” says Tom Ginsburg, a professor of law at the University of Chicago and the director of the Comparative Constitution Project, which collects and compares the constitutions of all nations. “Increasingly I’m seeing that people are finding that it really is out of date and wanting to follow Thomas Jefferson’s idea that we would change the constitution to keep up with the times.”

An indication of just how much is left unsaid in the US constitution is its length. At less than 8,000 words long, it is the 25th shortest in the world. By way of comparison, Canada’s is nearly 20,000 words, Germany over 27,000, South Africa 67,000. Even excluding India’s, which has more than 146,000 words and is more than twice the length of the second longest, the average length of constitutions is just under 22,000 words.

Because the US constitution is so abstract, it has been able to adjust over time. This would be in line with the theory that while specificity constrains, abstraction leaves space to grow, Ginsburg says. Yet his research has show the contrary: With the exception of the US’s, constitutions that are more specific tend to last longer. The need to amend their articles more frequently means citizens end up being more invested in them.

Another limit of the US Constitution is its rigidity. The country’s foundational laws aren’t just old and abstract, but they’re hard to change. To alter the Constitution, an amendment is proposed by Congress and requires a two-thirds majority in both the House and the Senate. After the amendment is approved by Congress, it must be ratified by the legislatures  of three-fourths of the states before it is added. Alternatively, two-thirds of the state legislatures can propose an amendment through a constitutional convention (however no amendment has followed this path so far).

The constitution’s rigidity forces other institutions to update it—once again giving a lot of power to organs such as the Supreme Court.

Keeping up with constitutional trends

Assuming the US were to update its constitution, what should it change?

There are two elements to consider: substance, and functional innovation. The first, is what the constitution should cover in terms of substance. Constitutions reflect the era they’re written in, and the influence of neighboring  countries, says Ginsburg. Recent constitutions are more likely to address the environment, the internet, protecting identities, and the rights of native peoples. “It’s trying to come up with rules for problems that we have now, and didn’t have then.”

Then there are functional innovations, which are more about the way the state and institutions are organized. One important idea that has emerged in recent decades is the introduction of a fourth branch of government.

“In the United States we think of three branches, we follow Montesquieu, the French philosopher—there’s an executive, legislative, and judiciary [branch],” says Ginsburg. “But [most] constitutions written in the last couple of decades have what you call a fourth branch, which is a special group of institutions whose only purpose is to provide accountability from the other branches”

Such institutions—for instance, an ombudsman, or an electoral commission—would protect the fairness of processes in which the other branches might have vested interests.

For examples of other constitutions the US could look to, Ginsburg suggests Germany’s—which is federal but has a parliamentary system, so the head of the government needs the parliament’s support to continue with the mandate—or France’s, which has a presidential system, but one in which winning the popular vote is necessary to be elected.

How change happens

Then, of course, there is the issue of how to change the US constitution. It isn’t an easy feat—it can take decades to ratify an amendment much less re-write the entire document.

The institutional and cultural reluctance to significantly change the Constitution isn’t necessarily a bad thing, as it stems at least partially from a reverential respect paid to the country’s foundational law. “I think the fact that [the constitution] is sacred in our political culture is actually a good thing,” says Ginsburg. Giving such respect to the constitutions prevents cavalier attempts to modify it, although the actual difficulties in carrying forward thoughtful updates of the constitutions is likely depending on something else.

“I would distinguish between treating it as a sacred document and treating it as untouchable,” says Ginsburg. “I think it’s just the raw political difficulty that makes it a challenge to change.”