With the U.S. Supreme Court arguments this week regarding the Affordable Health Care Act we are reading and hearing what seems like non-stop commentary on the constitutional arguments that are being made by the lawyers and questioned by the Justices.
As a retired lawyer who studied constitutional law in law school nearly 50 years ago and who was a lawyer in some constitutional cases, I should be enjoying this commentary. But I am not.
I increasingly am coming to the conclusion that the U.S. Constitution is antiquated and needs radical changes.
We in the U.S. have developed a cult of worshipping the Founding Fathers as if they were demigods. Yes, they were wise in many ways, especially on the need for checks and balances in any governmental system. But if they were as wise as we often think they were, then do we really think that these men of the late 18th century would want their descendants in the early 21st century to obsess over what we think they intended in the late 18th century? Especially over terms like “due process” and “cruel and unusual punishment” that appear on their face to invite evolving meaning as circumstances change?
The U.S., in my opinion, is one nation, and the national government needs to be able to address problems facing the nation, like the problem of providing affordable health care to its citizens. The so-called “individual mandate” is one way to address that problem and should be permissible.
There are so many other problems that the U.S. is not addressing today. Our governmental system–our Constitution–is not working, in my opinion.
I have no grand alternative constitutional schema in mind, but as previously noted, I think the U.S. Senate in particular needs radical reform if we are to retain a bicameral national legislature.
To require 60% of the Senators to agree in order to do almost anything for me is outrageous. It should only be 51% for most issues. This deficiency is exacerbated by the fact that each state has two and only two Senators regardless of the state’s population. Yes, this was part of the original grand and anti-democratic compromise in the late 18th century when there were 13 states. But the expansion of the union to 50 states has made the Senate even more anti-democratic.
Since I believe that it would not be wise to increase the size of the Senate to reflect the population of the states (like the allocation of seats in the U.S. House of Representatives) and that each state should continue to have two Senators in a bicameral upper house, I suggest for discussion that there be weighted voting in the Senate. Each Senator from Wyoming (the least populous state in 2010 with 564,000) would have 1 vote, for example, but each Senator from California (the most populous state in 2010 with 37,254,000) would have 66 votes (37254/564 = 66.05). This approach would produce a total Senate vote of 1,094 (total U.S. population in 2010 of 308,746,000 divided by 564,000 (population of Wyoming) = 547 x 2 = 1094). The weightings would be changed every 10 years with the new census population figures.
As I suggested in a 1996 virtual constitutional convention, I would also change the term of office of members of the House of Representatives from two years to four years to coincide with the presidential election. This should result in less divided and stalemated government.
I also recommend that we have direct election of the U.S. President by the national popular vote and abolish the electoral college. This would eliminate the possibility of a repeat of the outrageous Bush v. Gore decision of the U.S. Supreme Court in 2000.
This new constitutional framework would permit the national legislature to enact laws regulating guns and political contributions, now virtually forbidden by the Supreme Court’s interpretations of the existing Constitution.
The process of amending our current Constitution is appropriately difficult. Probably a new constitutional convention would be the most appropriate way to make the kind of changes I think should be considered and adopted. I despair, however, when I speculate of how such a convention could be held today.
Comment: Another Constitutional Change: Term Limits for U.S. Supreme Court Justices
Another possible significant change to the U.S. Constitution would impose a term limit on U.S. Supreme Court Justices, who now enjoy life-time appointments. All 50 states in the U.S. and all major nations have age or term limits for high-court judges. The International Criminal Court limits its judges to one term of nine years. Such limits are not seen as restrictions on the necessary independence of the judiciary.
The U.S. Constitution does not specifically grant life tenure to the justices. The Constitution merely says, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour . . . .” Paul Carrington, a Duke University law professor, recently suggested that the “good Behaviour” provision was not intended to provide life-time appointments and that term limits could be imposed by statute.
Carrington, Bring the Justices Back to Earth, N.Y. Times (April 9, 2012), http://www.nytimes.com/2012/04/10/opinion/bring-the-justices-back-to-earth.html?ref=opinion.