A new constitution? Be careful what you wish for.
Would replacing the Constitution really result in a more functional country?
Why can't America have nice things — like a new constitution, for instance?
The American Constitution is an exceptionally frustrating document to anyone who cares about effective government. My colleague Ryan Cooper gives an excellent run-down of the ways in which dysfunction is built into its structure. Both the separation of powers and the division of power obscure clear lines of authority and accountability to the citizenry. As a consequence, our legislatures have decayed into bodies notable mostly for self-dealing and obstruction, while our executive and judicial branches have become swollen and lawless.
It's hard to imagine a set of amendments that would effectively reform all of the Constitution's flaws — particularly when some of them (like the malapportionment of the Senate) cannot be amended away according to the Constitution's own text. The most commonly-proposed kludges — adding states, packing the Supreme Court — could well prompt a further tit-for-tat escalation that ultimately delegitimizes our constitutional system as a whole, and wouldn't actually resolve any of these fundamental structural problems in any event.
So perhaps it's time to chuck the whole thing and start over?
It's a tempting idea, particularly when there are other constitutions to point to that seem to have resolved many of our flaws. Germany, for example, has a more co-operative form of federalism than America's increasingly coercive and adversarial version, but it also has a parliamentary system within which lines of authority and accountability are clear. Moreover, its use of proportional representation for elections to the Bundestag allows for far more varied and open expression of ideological diversity than our Westminster-style lower house, without being so vulnerable to the self-dealing we call gerrymandering.
It's not hard to imagine a more harmonious and efficient America that followed this model, with the largest states broken up and the now more-equal states given a direct role in national government; with a variety of parties competing for votes and forming broad but fluid governing coalitions; and with a powerful head of government elected from and directly accountable to the legislature that, if she lost that legislature's confidence, could simply remove her without extraordinary national trauma (albeit not as easily as under the Weimar Constitution).
There's just one snag: The same problems that make our constitution increasingly unworkable are the ones that prevent us from adopting a new one better-suited to our national needs.
Consider, first, the positions of the several states. Large states would have to be broken up for a German-style constitution to work, just as Prussia was after World War II. What would induce California or New York Democrats to reduce their future influence in that fashion, and empower a Republican Party that has become increasingly irrelevant in their states? And why would the national Democrats not prefer to hold out for demographic change to deliver them Texas and Florida as well? Meanwhile, an upper house that gave weight proportional to population would clearly reduce the influence of small states like Wyoming or Vermont. Why would their voters concede to such a reform? And if they didn't, how precisely would such a constitution come to be approved?
Next, consider the ideological and geographical sorting that has taken place between the parties, and how that would play out in any attempt to reform the Constitution. Lopsided local majorities are driven by culture war issues like gun rights or abortion rights. A viable future constitution would have to facilitate either national compromise or devolution on these questions — otherwise it would simply replicate our current system of pervasive ideological confrontation. But if either compromise or devolution were acceptable to both sides, they could be the basis of a new settlement under the current constitution.
In other words, a major reason why we need a new system — the partisan polarization that drives endless gridlock and tit-for-tat escalation — is the largest obstacle to bringing such a new system into being. But suppose that we could wave a magic wand and reform the Constitution altogether into a new form that corrected all the various problems of our current document. Would America politics thereby settle down, and would the new government be more functional?
I'm not sure. Consider one of the virtues of the German constitution: its expression of ideological diversity through proportional representation. Germany currently has six major political parties — seven if you count the CDU/CSU coalition as two — mostly lined up on an ideological string from left to right. It's not hard to imagine similar parties emerging in America: a Reaganite party led by Ben Sasse, a Trumpist party led by Tucker Carlson, a New Democrat party led by Mark Warner, a more left-wing party led by Alexandria Ocasio-Cortez. That's an ideological spectrum that corresponds roughly to the divisions we have now within our broad party coalitions — and there's something appealing about imagining their relative strength being made visible, and subject to the reality-check of a popular vote.
Is that the way a multi-party America would look, though?
What if, instead, we got a Christian nationalist party whose central planks were a national ban on abortion and the declaration that America is a Christian nation, that reliably won 60 percent of white evangelicals and therefore 15 percent of the vote nationally (and close to a majority in some states) — a party that was anathema to a clear majority of Americans but without which no right-wing coalition could be formed. Or say we got a Reparations Party that advocated for the interests of Black Americans exclusively, that reliably won 60 percent of the Black vote, and hence 8 percent of the national vote — a party that became a lightning rod for scaremongering by the right, and hence toxic as a coalition partner for the center-left, and whose isolation drew Black voters further and further away from the American mainstream. Or suppose there were so many parties organized around popular personalities, demographic constituencies, or veteran politicians with vague and shifting ideological identities that the supposedly major parties never came close to a majority.
Roughly speaking, I'm describing the state of Israeli politics, where the largest party — Likud — won less than 30 percent of the vote in the last election. While many of Israel's smallest parties would not have cleared the threshold for inclusion in the parliament in Germany, two large minorities — the Arab sector and the ultra-Orthodox — certainly would, as each got 13 percent to 14 percent of the national vote, as would whatever far-right settler-oriented party would form from disparate components if a higher threshold were imposed in Israel. These types of parties have, in different ways, each been rejected by the broad Israeli center, but it is virtually impossible to form a coalition with none of them included. As a consequence, some (the Arab-oriented parties) have been excluded for the entirety of Israel's history; others (the ultra-Orthodox parties) have almost always been included, and have distorted national policymaking in ways that have aroused increasingly virulent opposition; while yet others (the settler parties) have demonstrated the ability to hold the center-right majority hostage to their extreme ideological demands.
That's not an implausible vision, I think, for a future American politics under a constitution that did not force these disparate groups to form coalitions behind the scenes. Even the eminently stable German system showed signs of serious strain over the past few years as the center decayed and new ideological extremes began to gain traction. Are we sure that trading our current gridlocked system for a more fluid but fissiparous system would resolve the divisions that are tearing the country apart?
Which brings me to my final concern: the importance of the Constitution to American identity.
For most countries, constitutions come and go; the nation endures. France is on its fifth Republic since the Revolution, plus assorted monarchies and empires — yet all of these were recognizably France. America, by contrast, is defined not by its land nor by its people, but by its institutions. The "more perfect union" described in the preamble to our constitution was a creation of that document — an audacious creation, since many (perhaps most) Americans would have questioned whether any such singular "people" existed at the time. Indeed, we fought our only civil war over the intertwined questions of whether there was an "American" people or merely the peoples of the several states, and, if so, whether that people would encompass the vast Black portion of our population or whether membership was a status reserved for white people only.
If we were not always so, has our long endurance together on this continent under one constitution made us one people? It's hard to say yes right now; it feels much more like we hate each other, and like we'd be better off without each other, and that this mutual distrust and disdain is increasingly the bedrock of our politics. So if Americans gathered in Philadelphia tomorrow, would they even recognize each other as members of a single people, capable of constructing a new political order and consenting to be governed by it? If not, how could such a convention do anything but fail? And if it failed, couldn't it well take the country with it?
Constitutional moments come at times of profound and hard-won consensus. America's first constitutional reformation was won on the battlefields of the Civil War. Our second came after the Depression delivered FDR's Democrats an overwhelming and enduring popular majority. West Germany's own stable postwar constitution was forged in the fires of massive defeat, and hammered out under the watchful eyes of the victorious allied powers.
If we need another such moment — whether embodied in a new constitutional text or not — we first need an overwhelming national consensus in its favor. I only hope that, if we do, it doesn't take another national trauma, greater than what we have already faced, to bring it to fruition.