Still want a Con-Con? Read this...

February 2, 2018 
BY Ryan Cooper

The American Constitution is an outdated, malfunctioning piece of junk - and it's only getting worse.

When written, the Constitution made a morally hideous compromise with slavery that took a war and 750,000 lives to make right. And while its basic structure sort of worked for awhile in the 20th century, the Constitution is now falling prey to the same defects that has toppled every other similar governing document the world over.

The truth seems clear: America is going to have to overhaul its basic structure of government, or eventually it will fall to pieces.

The major problem with America's Constitution is that it creates a system in which elections generally do not produce functioning governments, and there is no mechanism to break the deadlock (like calling snap elections). Most of the time, control of the House, Senate, and presidency is split between the two parties in some way. Bipartisan compromises to keep government functioning used to be common, but are near-impossible anymore due to extreme party polarization. So as Michael Kinnucan points out, during divided government "there is de facto no legislative body."

This is getting worse over time. Even with unified control of government, a party now only gets one big law per year through the reconciliation process. To actually govern in a way that would be normal for any other country, it takes unified control of government plus a Senate supermajority of 60 votes to get past the filibuster - something that has happened only three times since the Second World War. If Democrats take control of either the House or the Senate in 2018, we are likely in for even fiercer partisan combat and high-stakes standoffs. It's a ratchet that tends to end in constitutional collapse.

To fix the problem, America should aim to make itself more like a proportional parliamentary democracy, by far the most successful and road-tested form of government. Here are a few options:

1. Get rid of the Senate filibuster.

This would at least allow a party that got the presidency plus both houses of Congress to govern, and could be passed by a simple majority vote in the Senate. However, that sort of unified control only happens every six to 10 years or so, so this reform would only be periodically useful.

2. Radically change the way House members are elected.

One major engine of political extremism in America is the partisan drawing of district boundaries. The United States has the most entrenched two-party system in the world, partly a result of "first past the post" voting, and partly because the parties have locked themselves into place behind enormous legal barricades to third parties.

Worse, the ironclad two-party system has proved to be highly vulnerable to an extreme right-wing fringe that protects itself with gerrymandering and other cheating tactics. Where in any other country the 15-20 percent of the national population that makes up Republican primary voters would have their own small party, instead they now own one out of two parties.

As the folks at Fair Vote demonstrate, one clever way to solve this problem would be to change the way House members are elected. Instead of drawing one district for every representative, make each district have three seats, allocated by a ranked-vote system. Districts would still be geographically contiguous, but much larger and proportionally represented. (For example, Louisiana would go from having six congressional districts each represented by one person to two districts that each have three representatives.)

You can see how this would allow for more than two parties to hold seats in Congress. You'd no longer have to win a congressional district majority - coming in third place would be enough to win a seat. That removes most of the possibility for gerrymandering, and gives representation for partisan minorities even in slanted regions like Alabama or New York. Thus, almost everyone is represented by someone.

And while we're at it, let's change House elections from every two years to every four years. American lawmakers need time to actually govern, and should not be perpetually seeking re-election.

3. Neuter the Senate.

The Senate is an odious, undemocratic institution in which senators representing about 11 percent of the population can filibuster a bill or those representing about 16 percent of the population can have a majority.

The Constitution places high bars to changing the Senate, stipulating that no state can be deprived of its representation without its consent. However, it might be possible to pass an amendment making the Senate a House of Lords-style institution without real power. Senators could still be elected, but not be able to pass a binding vote on legislation.

4. Elect the president from the House.

The point of "separation of powers" was to create a check on tyranny, but it has ironically worked to increase tyranny and undermine democracy. The separate executive branch is a major factor behind the rise of the lawless imperial presidency in the United States, and most other American-style constitutions fell apart due to standoffs between the president and legislature.

In normal countries, the executive is simply part of the legislature. Such a system does not create a single powerful figure running the state who can also claim separate democratic legitimacy against the legislature. If the president were elected from the reformed House, the dangerous standoffs created by divided government would not happen. Instead, the leader of each party would be the implicit presidential candidate during each election, as happens in parliamentary systems.

5. Throw the entire Constitution in the garbage.

One of the biggest problems with the Constitution as written is it makes changing anything nearly impossible. Other countries regularly ditch or overhaul their constitutions to deal with new problems - and even America has done so in the distant past. When the first stab at a U.S. Constitution proved totally unworkable, Americans of the day didn't fuss around with stipulations that "the Union shall be perpetual." Instead they threw the whole thing out and started from scratch.

When it comes to major reform, I reckon this is the most likely actual possibility. One of these days, a standoff will come to a head, and will lead to some kind of total breakdown. Legal mechanisms like a constitutional convention are completely untested and would probably create such explosive controversy that we'd effectively end up with a new constitution anyway.

Make no mistake, a constitutional collapse would be a tremendously destabilizing and dangerous event, and raise a significant chance of insurrection, civil war, or a military dictatorship. But if and when it comes, it won't be by choice - it will be because the ancient, janky mechanisms of the American Constitution simply failed. If we wish to avoid such a breakdown, moderating reforms like the ones mentioned above must be considered and adopted, posthaste.