This website is an extension of The Democracy Amendments (Anthem 2023) -- a book that analyses the fundamental problems in the American Constitution that underlie the massive dysfunction we see in the US federal government today.
This page includes more detailed versions of some of the substantive amendment proposals that are only briefly glossed in the book "Interlude" between Chapters Three and Four. It also includes more information on a few other popular amendment ideas that I did not include for various reasons.
The lowest-hanging fruit of all today would be an updated version of the ERA that Congress passed in the 1970s, which simply extended the 14th Amendment’s Equal Protection to distinctions on the basis of “sex” or gender. Today, such an amendment would simply cement existing Court precedents and would easily gain ratification. Thus including it could build bipartisan goodwill.
There is still a potential minefield here because “gender,” which was not mentioned in the ERA, is now often distinguished from biological sex (which is no longer seen as simply bivalent). If the language of the original ERA were enriched too much, it might again become culturally divisive, especially if it were thought to bear on abortion. But an amendment like the following would still likely receive strong supermajority support across the nation:
Equality under the law shall not be denied or abridged by the United States or by any State or territory on account of sex or gender. Any differences in treatment of persons by sex or gender in law must be narrowly tailored to serve public interests of the most overriding nature. Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Perhaps “sexual orientation” should also be added, although that might make ratification less likely. This kind of language affirms the Court practice of applying “strict scrutiny” in carving out any exceptions to treatment of protected categories of persons.
Once we have started down this road, what about increasing protections for other rights? The “Democracy Constitution” drafted by Levinson and collaborators includes a whole raft of new constitutional rights, beginning with “the right to an education, personal autonomy, freedom of expression, assembly, and the press, the right to dignified labor, and the right to health, safety, and community.” Needless to say, because it is unclear what material entitlements such rights could entail, they would be controversial. The Democracy Constitution also includes rights to unionize and to “reproductive freedom,” extends rights to privacy, requires that juries include a cross-section of their community, gives preference to “non-custodial” sentences, and guarantees “a decent standard of living” with a national minimum income.
The contrast with my proposals could not be more stark. It is obvious that pushing such amendments, even if they are meritorious, would only deadlock a national process focused on constitutional reform by making it look like a “liberal wish list.” And some improvements, like extending the right to privacy to each person’s electronic data and genetic information, could probably be accomplished by ordinary law. Similarly, while I would like to see an amendment that limits trade relations with other nations according to their human rights records, this might be too controversial. However, I believe that two rights in the Democracy Constitution’s long list could form the basis of important bipartisan consensus, and I address these next.
Over recent decades, a strong public movement has emerged to reform the American criminal justice system, which incarcerates more people per capita than the systems in all other developed democracies. Within this broad agenda, I believe just a few very fundamental norms have crystallized to the point where they could command sufficient bipartisan support across the nation to warrant a constitutional amendment. Very generally, these include
Probably this right to assistance by public defenders requires a sliding scale of defendant contributions according to ability to pay, but this is not too difficult to define in ordinary law. Likewise, the definition of torture suggested here is a narrow one, but it would probably apply to prolonged solitary confinement.
The proportionality restriction articulates a basic intuition in retributive justice that unfortunately our Court has rejected in past cases: without this limit, technically it would be constitutional to get a life sentence for (say) illegal parking. But these are very general and modest rights. They do not, for example, state that the death penalty is a disproportionate sentence for murdering a single person without aggravating factors like an especially cruel mode of killing (e.g. by fire) – although I personally believe such a sentence is disproportionate.
The third point in the proposed amendment fixes the well-known gap in the 13th Amendment. Its practical effect would be small – banning involuntary prison labor in the few places where it still exists. But its symbolic significance would be important for the nation.
Clearly this does not exhaust topics for criminal justice reform, but it includes the provision that could gain the widest public support. We also need a national requirement that police act to defend victims who are being assaulted. Believe it or not, most state laws do not mandate police assistance in a crisis. Of course, almost all police officers would not refrain from aiding someone being attacked. But there are some shocking cases in which refusal to protect did not even lead to dismissal.
While the previous two issues are widely discussed in American society, it is much less widely understood that, in the last two decades, the Supreme Court has been busy severely eroding the federal government’s ability to secure national public goods by coordinating the states. In a string of rulings, the Court has creatively read into the 10th Amendment an almost-total ban on federal authorities “commandeering” assistance from state and local officials (other than judges, who are listed as “bound” by federal law in Article VI of the Constitution).
This is surprising because the federal government has often called on state assistance in enforcing federal law throughout our history. It is also dangerous, because taken literally, it might require the FBI and other federal bureaus to be vastly expanded to do work on the ground that state officials could easily carry out to help federal officials with little additional cost. And it is absurd, because it depends on claiming that all state and local officials other than judges are not bound by the supreme law of our land. One salient result is the controversy over so-called “sanctuary” cities and states in which local officials refuse to comply with federal immigration and criminal laws requiring information on undocumented migrants to be turned over, at least when they interact with the criminal justice system. Another familiar outcome is that federal authorities cannot get essential assistance from several states in merely collecting data on crimes involving firearms, numbers of guns sold, and other basic information. Thus Americans on both the right and the left should be upset by this perverse new form of “states’ rights.”
The recent Covid crisis has shown a bright light on lack of federal authority to ensure that states all act in unison to meet a public health crisis. Imagine that the next pandemic virus is ten times more lethal than the original Covid-19 bug, and the president uses powers granted in federal law to temporary national restrictions on people’s movements, as many other nations did in the early months of Covid during 2020. Assume for the sake of argument that compliance in all the lower 48 states is really needed to stop the virus spreading: if some states are “weak links,” then the sacrifices taken in other states will be largely for naught. This is a familiar kind of collective action problem called an “assurance game:” the costs to any given state are worth it only if enough other states follow suit.
The federal government was created precisely to solve this kind of problem. But as things stand, the president would not be able to enforce the restrictions that (by hypothesis) we need because in several states, leading officials would simply refuse to help. The anti-commandeering rulings ensure that we will lose this and many other assurance games, games of chicken, and prisoner’s dilemmas arising between states. If this trajectory continues, state officials will increasingly be able to nullify federal authority in multiple domains by making it impossible to enforce federal law – a threat we thought was resolved in the 1830s.
Former Supreme Court justice John Paul Stevens describes these risks beginning with the 1997 Prinz v United States 5-4 ruling in which the Court struck down a required local law enforcement officials to help implement a national instant background check for gun purchases established in a 1993 law – while compensating their local governments for the modest costs this involved. Stevens notes the difference between this sort of enforcement burden and federal law requiring states to enact laws on disposal of radioactive waste.
In fact, things have only gone downhill since Stevens wrote. In 2018, my own state’s governor, Phil Murphy, won a Supreme Court verdict holding that federal law could not ban states from legalizing betting on college sports – thus creating a prisoner’s dilemma in which states that still ban betting on college teams lose revenue without preventing this offensive exploitation of college athletes – which increases state governments’ addiction to gambling revenue that famously drains the poorest households, on average, of resources. At the same time, the Court has reined in use of the Commerce clause; it increasingly denies the federal government power to regulate noneconomic activity in ways necessary to overcome interstate collective action problems. The 1995 rejection of the federal Gun-Free School Zone is an example. As Vikram Amar concludes, this means that according to current doctrine, the federal government lacks authority to take actions which would be needed to stop the next pandemic.
More fundamentally, the commandeering and Commerce clause cases imply that federal statutes cannot limit the boundaries of acceptable state laws in most fields. If that is really the case, then the central purpose of our Constitution is undone. We will be right back where our framers were before the Constitution was written – or even in a worse position, if that is imaginable. For, as Stevens points out, even the Congress of Confederation could “issue commands to the states” (it simply lacked effective ways to enforce such commands). The framers did not intend to remove the very limited authority that Congress had under the Articles; rather, they intended to expand it exponentially to solve more national collective action problems. So the anti-commandeering rulings run diametrically counter to the framers’ main intent. This can be solved, as Stevens notes, by simply adding a few words to the Supremacy Clause in our Constitution (addition italicized here):
The fundamental reason for strengthening federal authority and making more explicit that it extends beyond “commerce” is that no short list of “enumerated” functions is ever going cover all national public goods requiring coordination of all states that become apparent in experience. That is why we have constantly had to read implicit powers into the Constitution in order to thrive as nation. Federal power should be limited by protections for individual rights. But trying to limit them on the positive side to pursuit of only a few goods is simply self-destructive.
On a related issue, John-Paul Stevens also argues persuasively that the “sovereign immunity” of states from lawsuits by citizens of other states, which was adopted through the 11th Amendment, is entirely unjust and should be overturned with a new amendment. This provision was interpreted narrowly until after the Civil War, when the Court started granting states broad immunity from suits that would compel them to pay debts or respect rights of citizens. The Court rejected claims of immunity by federal officials that would have allowed them to take property without just compensation, but permitted this to states. Rehnquist also extended the doctrine in ways that allow states to flout federal laws when suit is brought by a private citizen. Stevens is surely right that this outrage should also be ended by a constitutional amendment, but I will not pursue this farther here.
Limit Inter-State Financial Redistribution. As we saw, the massive extra power that small states have in the US Senate distorts outcomes across the federal system. One way to limit its damaging effects, reduce reliance on expensive borrowing, and constrain federal spending more broadly would be to adopt a constitutional amendment that limits the difference between what any state pays in taxes and the money it receives in federal spending to 10%. In other words, a state could not receive in federal services, grants, and other funding more than 1105% of what it pays into federal coffers through taxes and fees. Nor could any state receive less that 90% of what its business and households pay in.
Such an amendment would address a form of inequality that concerned our founders in the days when small states such as Rhode Island and Delaware received protection from the Continental Congress but usually refused to pay their taxes to the central authority. It is in the spirit of the framers’ language requiring apportionment of “direct” or internal taxes. Today, such an amendment would reduce unfair tax policies, such as caps on mortgage deductions that hit only a few states the most, which result in a handful of our states paying out much more than they receive. It would also constrain the ability of a few powerful party leaders to bring home “lots of bacon” to their own states.
When more conservative reformers push for a balanced budget amendment, it would help to have this Financial Equality amendment on the table. It would force participants to reveal whether their professed desire to cut federal spending truly applies to the nation as a whole, or whether they really want to keep massive subsidies for their locations – through such programs as federal farm subsidies, spending on military contractors and military bases, and tax breaks for SUVs and electric vehicles, etc. – while denying other states equal benefits.
Equitable reductions in federal spending, like tax cuts and tax increases, requires that their costs should be spread evenly among all states proportional to what their residents and businesses pay in federal taxes. Or at least, that should be the condition if we really believe that states and their exaggerated sovereignty are as vital as Tea Party extremists claim: then we should measure equity according to what each state gives and gets, rather than according to what households pay in and receive. But that is usually not at all what critics who demand “smaller government” have in mind. Often they are really defending massive redistributions of wealth from richer to poorer states, which completely contradicts their professed libertarian beliefs. Let’s see if they will put their money where their mouth is.
There are more substantive and procedural amendments that are likely to be proposed, especially if a new constitutional convention meets as part of a national process to repair our institutions. Some of them envision departures from our current system that are probably too big a departure from current practices to pursued in the near-term. For example, this was a concern about electing each state’s House delegation by proportional representation as a solution to gerrymandering (see #4).
Several others, including some proposed by libertarians such as Texas Governor Greg Abbott, are highly divisive and stand little chance of being adopted. These include, for example, allowing two-thirds of states to override federal laws rather than working to change them through Congress, and drastically curtailing the implicit powers of the federal government to address national problems. Such changes are non-starters because they would make it impossible to coordinate national solutions to overcome many collective action problems among states by creating 50 mostly autonomous fiefdoms in a loose alliance – our condition before federal powers expanded between 1787 and the years immediately following the Civil War. As I argued, for most Americans, the time if long past when our first loyalty was to our state rather than our nation.
However, there are a few other reform ideas circulating that should be noted with brief explanations of why I have not recommended them as part of a comprehensive agenda for constitutional renewal. These include:Term limits in Congress. This is briefly discussed in the book, but I say a little more here. While they have often been proposed, and were considered during the 1787 convention, very strict term limits with low numbers of allowed years would rob Congress of more senior and experienced leaders who provide stability and institutional memory. The automatic runoff system, bans on gerrymandering, and changes to campaign finance will already make for more competitive elections that reduce the historical advantages of incumbents. Term limits should be considered only if these other constitutional fixes prove insufficient to yield more competitive House and Senate races.
That said, proponents of congressional term limits rightly argue that the excessive power of a few legislators who continue in office for decades distorts the federal budget, prevent new talent from entering Congress, and make courageous votes of conscience quite rare.
So, in addition to other reforms that would reduce these problems, I would support an age limit: members of Congress should not be older than 70 when elected for their final term in the Senate, or 74 when elected for the last time to the House. This would be helpful in encouraging new blood and reducing the “gerontocracy” in our Congress, where the average age in the House and Senate are currently 58 and 64 years respectively. We could also lower the minimum ages for representatives and senators, but they are already fairly low at 25 and 30, respectively.
A limit to one six-year term for the President This proposal is motivated partly by the sense that second-term presidents have been ineffective. But that is due to the gridlock that sets in when the rival party controls Congress, and which amendments #1-9 should solve.
The problem with this proposal is that it greatly reduces the incentives for the chief executive to be responsive to voters’ concerns during his or her one term. It becomes impossible to reward an effective incumbent with a second term that enables a longer period to try to establish more of his or her programs.
War powers. Proposals have been made to limit open-ended authorizations for war actions. It is worth considering, for example, whether Congress should be required to reauthorize within (say) three years any prior authorization to wage war against particular threats. This could apply more widely to any deployment involving more than 5000 personnel on land, air, sea, and space.
However, such measures could well weaken our negotiating leverage as the deadline nears, given the known difficulty of gaining approval to continue a long-running military action in a particular theater. We should be wary of tying the executive’s hands too much by indicating in advance a precommitment to withdraw unless reapproval can be mustered. Moreover, such limits can already be set by statutes, as long as the president signs those bills. Congress simply needs the courage to take back the war power.
Four-Year House Terms. This is a common proposal that is made for two reason: (i) to reduce division in government and thus speed action, and (ii) to spare House members from spending more than a third of their time in fundraising for the next election, which is always coming soon with 2-year terms. Hardly any other democratic nations have such a short cycle between elections.
In response, while it is true that the midterm elections often produce a Congress at odds with the president, Americans seem very attached to this way of expressing discontent. For that reason, electing the entire House with the president for four years should be considered only if the other amendments to make Congress more productive fail. Second, the amendment concerning campaign finance (see #5) is a better way to reduce the fundraising distraction that House members face.
There are many other possible topics for substantive amendments, ranging from genetic privacy rights, privacy of one’s personal data, limitations to gun rights, affirmative action, and abortion, to ways to limit the exponential expansion in the use of executive orders. Some of my proposed amendments would provide narrow checks on certain executive orders (see #16, #18, 20, #23). For a more general check, one interesting proposal is to give Congress 30 days to block an executive order before it goes into effect, perhaps with an exception for declared emergencies. Like other problems, however, this one might be successfully tackled by ordinary laws, which already requires complex processes for changing “administrative” or executive law in some areas. Similarly, modest restrictions on gun ownership can be made by federal statute within the fairly wide latitude allowed by the Court (e.g. some kind of limits on “assault weapons”).
Birthright citizenship. The 14th Amendment guarantees that everyone born inside the United States is thereby automatically a US citizen. This is another topic that reformers sometimes propose to alter with a new amendment. On the more conservative side, critics are understandably upset by the incentive for migrants to cross into the US illegally or overstay visas primarily in order to give birth on US territory. On the more liberal side, reformers are understandably worried about the status of so many illegal aliens, including many “dreamers” brought to the US as young children or infants, who must largely live in the shadows due to their undocumented status. There is also something evidently unfair about legal “guest workers” doing hard manual labor in the US for more than (say) a total of 60 months across several seasons without this earning them a fast track towards US citizenship.
My view is that most of these issues concerning immigration should be settled by ordinary law, and can be resolved that way once procedural amendments (especially #1-12 in the book) get the federal government working again. Some of the issues involving asylum claims might also need to be settled by a new treaty. Nevertheless, it is possible that some alteration in birthright citizenship might come up in negotiating a larger package of amendments.
Excessive power of corporations. This issue needs further attention beyond limiting the political lobbying powers that corporations have come to enjoy only in the last 50 years (see #5). We need new laws to protect the right of ordinary people not only to sue corporations and other organizations for damages, and to demand evidence that they hold by “discovery” before having to prove most of their case. We also desperately need new antitrust laws to overcome judicial efforts to water down the older ones on our books. These problems should be fixable by statute. But if courts reject such measures as unconstitutional, then amendments may be needed to solve these problems.
Just Risk Cost Allocation to Reduce Federal Entitlement Spending. One interesting option, in my view, would be a substantive amendment requiring that risk-costs are paid by the parties causing them in all cases, to the extent that it is feasible to assess such costs, unless Congress by law specifies exceptions to this rule that are warranted by compelling public interests (the most demanding standard of rational basis). Such an amendment might also work wonders in the area of health care, where costs galore are piled on the public – through Medicare, Medicaid, Obamacare programs, and private health insurance plans – by anti-vaxxer propaganda, foods overloaded with sugars, uninsured Americans, regular smokers, gun sales. More generally, with such an amendment, it would be much harder to shield businesses and individuals who profit by foisting costs onto innocent third parties.
Animal Rights. Finally, it is possible that some modest constitutional protection for animals against forms of extremely cruel treatment might get ratified. This is still a divisive topic, but an amendment which both (a) affirmed that non-human animals are not persons under law but (b) still must not be subjected to excessively narrow spaces that impede their well-being or subjected to other horrendously cruel treatment could be a viable compromise. While I will not pursue it here, such an amendment could at least clarify that Congress has the power to define minimum national standards for treatment of farm animals and domestic pets.
Copyright © John Davenport 2023