The Democracy Amendments

Constitutional Fixes to our Structural Problems, and the need for a new convention

by John Davenport, Professor of PhilosophyFordham University, davenport@fordham.edu

I. The Grave Dangers We FaceAcross the nation, voters are furious the inability of our federal government to address

national problems. This is one of the few things most Americans agree on: we call it “gridlock” in Washington, D.C. But widespread awareness of big problems in the federal government fails to focus on the true roots of our problems. Most people have simply have a nebulous sense that the legislature and some administrative offices are bought or corrupt. Thus they turn to more radical or "populist" candidates who talk about this corruption and promise to fix it: for example, people flocked to Donald Trump and Bernie Sanders during the primaries in part because Trump and Sanders portrayed themselves as determined to overcome "the Washington establishment" and "Wall Street" (whatever exactly these phrases mean). But neither they nor their opponents diagnosed the procedural problems that are making the federal government ineffective in promoting economic opportunity across the country, or in improving education and responsible citizenship, or boosting civic solidarity and defending social justice here and abroad. They discussed almost no specific constitutional fixes to the underlying problems; thus their supporters did not learn from their leaders about the real bedrock sources of the problems that are so angering and upsetting them, and the illusion persists that the solution is just to elect better people who owe no favors to lobbyists – even if that is only because they are billionaires.

On the contrary, objective research on the matter shows that most politicians are not directly controlled by bribes from donors (see, for example, Lawrence Lessig's Republic, Lost and Mann and Ornstein's It's Even Worse than it Looks). Most people who enter politics could have made a lot more money in the private sector. A few do it for glamour or status, but most elected figures in both parties genuinely hope to serve the good of their nation. The sense of corruption results from election procedures and election finance laws that promote a culture of friendship and informal interdependencies among legislators and the donor class. And this is only one part of a much broader set of structural problems, most of which can only be fixed by constitutional amendments. In some cases, that is because we have to overturn court precedents to fix the problems; in other cases, the existing constitutional processes are hopelessly flawed.

It has been over a hundred years now since substantive constitutional reforms were made to our system, such as the vote for women and direct election of senators: we are desperately overdue for a major a constitutional overhaul. We replace factory equipment within 20 years or less; parts of our basic legal capital can certainly rust through in 50 years or less. Other advanced democratic nations have made large structural reforms since World War II, whereas we relied on the Civil Rights Act and Voting Rights Act, which are only statutes that can and have been weakened by later laws and court decisions. The shocking fact is that even for the equal status of women is now protected only by Supreme Court precedents that the Court could overturn.1

1 This predicament is partly due to our constitution being harder to amend than the basic law of any other advanced

People are naturally worried about opening up constitutional change, especially in an era of political extremism. But in fact, the extremism of our day is precisely the proof that the problems are urgent and will not get better through the normal run of existing legal processes. Ironically, the presence of more extremists on both sides has made the quieter majority in the middle rightly more desperate for real solutions based on sound civics, rather than ideological excesses. They only lack leaders offering such solutions. It is precisely in this moment when the prospect of sound constitutional cures for our worst political ills could generate a return to sanity.

And unfortunately, despite the risk, no lesser reforms can cure the roots of our political diseases. Without fundamental constitutional improvements, our system will grow increasingly dysfunctional: voters will get more and more frustrated that the party they put in power cannot get much done; such voters will either become alienated (checking out, not voting) or turn to ever-crazier outsiders in hope that they can be more effective, only to see the cycle repeat. "Coastal liberals" and "conservatives" (libertarian, evangelical, or otherwise) in our nation's interior will grow farther apart, as their political leaders increasingly try to appeal to their base by demonizing the opposing group, and focus more on blocking their opponent's agenda rather than moving any bipartisan bills forward. As a result, compromise on large national problems such as trade policy, religious freedoms, finding ways to balance our budget and stop piling onto our enormous federal debt, or how to normalize the status of 11 million plus "illegal" or "undocumented" immigrants will become even more unfeasible. Unless we have the courage to address the ultimate sources of the dysfunction that is rotting out the heart of our democracy, we will leave our nation in much worse shape for our children and grandchildren. If you knew that termites were eating the main beams of the house in which your children slept, would you try to fix the problem with surface paint and a few bits of plywood tacked on here and there to the moldering superstructure? In our situation today, refusal to move constitutional reform is a betrayal of our deepest values.

America's fate also matters for the whole world: since the Civil War, the United States has been a leading symbol and defender of the value of democratic rights and processes, helping to spread these norms across the globe. If our citizens grow increasingly ignorant, divided, and uncooperative while our system produces more irrational results, the promoters of nationalist despotism in Moscow, Beijing, and Tehran will see their stars rise even higher. As a result, people across the world will suffer under resurgent military and theocratic dictatorships. The stakes are too high to assume that it's best to 'play it safe' and 'leave the constitution alone,' as people often say, as if it is okay to keep trying to do the best we can within our current model. Continuing to 'muddle through' this way is irresponsible when our political system is already at the trainwreck stage, and only more fundamental reforms can meet our nation's needs.

II. The Solution: 22 Constitutional Amendments Focused on ProcessMost Americans realize that something is deeply amiss; but few understand that the

fundamental problems with our federal system are structural: no President or political party can solve them simply by winning an election anymore. Even holding the Presidency and both houses of Congress with a filibuster-proof majority, which is almost impossible, is not enough to

democratic nation on Earth, which suggests that among other things, we might consider altering the amendment clauses themselves – e.g. to require ratification only by two-thirds of the states and approval by three-fifths of both chambers when the amendment originates in Congress.

break through gridlock, given the power of major lobbies and special interests.2 Our federal government will never work well enough for long-term stability until a vital set of basic structural reforms are passed that require constitutional amendments, including at least

• ending the filibuster in the Senate, which currently enforces even more extreme minority rule than approval of 51 senators already implies.

• direct election of the President, or other fair alternative to the Electoral College, with automatic runoff to enable third party candidates to run without functioning as spoilers.

• a fair national primary system with rotating dates for all states, and other improvements to ensure a reliable and equitable election system.

• campaign finance and lobby limits (rejecting the ‘money = speech’ and ‘corporate speech = personal speech’ precedents).

• an impartial redestricting system ending gerrymanders that protect safe seats and create minority rule in the House of Representatives.

• reasonable deadlines for mandatory Senate votes on Presidential appointees at all levels.• fixed terms for Justices on the Supreme Court within a system to ensure that each President

appoints exactly two Justices within his or her four-year term.• an option for the Supreme Court to refer a law back to Congress for mandatory

reconsideration, and clarification of the principles upon which the judiciary should act.• agenda liberalization to prevent House leaders from blocking votes on legislation enjoying

strong bipartisan majorities, and improvements to the budgeting process.• separation of the Department of Justice, including the Attorney-General and FBI, from the

other parts of the Executive branch.• clear requirements for financial disclosures by all candidates for elected federal office and

political appointees, with strong provisions to ensure independence from foreign powers.• provisions to ban political campaigns from using stolen information, including privileged

material obtained through cybercrimes, especially when foreign powers are involved.• a requirement that every high school student take at least one semester of Civics covering

the federal budget and basic tax law in the last 50 years, along with elementary economics.• two senators for the District of Columbia, and one for all other US Protectorates, together

with House members proportionate to their populations.• statehood for Puerto Rico, for which a majority of their voters have repeatedly voted.• lower supermajority thresholds for treaty ratification, overriding a Presidential veto, and

passing further constitutional amendments through Congress. • perhaps some kind of requirement to balance budget when not in recession periods or

emergency spending needs.

Let's look at a few of these amendments in a little more detail. In the analysis below, I offer an explanation of each proposed amendment along with some tentative language. But it is important to remember that the exact wording is not vital at this stage: the point is to address each of the major problems in creative and bipartisan ways that could garner ratification from at least ¾ of

2 Note that when Obama had 60 senators supposedly on his side in 2009 before the untimely death of Edward Kennedy, having only just enough to break a filibuster meant that each single senator was crucial – and thus every one of them could, and some did, engage in brinksman struggles over a key piece of legislation like Obama-Care, holding it hostage until they could extract unrelated goodies and pork-barrel benefits. To avoid this scenario, a President would probably need at least 62 or 63 senators, which seems very unlikely in the foreseeable future.

the states (34 at present).

Fixing Our Elections: Campaign Finance and Speech. During the bitter 2016 election, many people expressed anger at Hillary Clinton for taking large campaign donations even though that is what our system has required for decades – unless, that is, one has hundreds of millions in cash to fund one's own presidential campaign. Similarly, our federal legislators are largely forced to raise money the way they do. For decades since the 1970s, campaign finance laws such as the compromise McCain -Feingold bill tried to limit this system; but the Supreme Court's Citizen's United decision (following the older Buckley v. Valeo verdict) gutted what remained of these limits. For decades, the Supreme Court’s interpretation of free speech rights has ignored any limits implied by the democratic purposes of liberties of expression. As a result, it is even clearer now that the only viable fix is a constitutional amendment that directly overturns Citizens United:

1. Every citizen has the right to expect that Federal law and public policy reflect an impartial adjudication of the common good of society as a whole, and therefore Congress has the power and duty to enact laws concerning campaign and public service law that(i) limit the expenditures of private citizens for political advocacy and advertising at least during the primary and general election periods; (ii) limit political expenditures by political parties, for-profit corporations or unions, organizations representing special interests with a monetary stake in the outcome of potential legislation, and candidates' campaigns themselves; (iii) limit the sources from which money can be raised for campaigns and the amounts permissible from different sources; (iv) provide public funds, based on impartial criteria, to every candidate showing the support of 10% or more of their district’s electorate at the primary and general election stages. These funds are to be used only for legitimate campaign expenses, including political advertising, appearances on television and other media, debates, and other forums designed to encourage public discussion of the issues; (v) provide public salaries for elected representatives of the people in Congress and administrative branch commensurate to the dignity of their high offices and sufficient to shield them from any dependence on gifts, favors, or bribes from interested parties. Federal salaries should not be less than half of those paid to comparable private-sector jobs.(vi) limit by law the business investments of high public officials or the decisions they may take that are likely to affect such investments: in particular, no member of Congress shall take part in lobbying for laws or voting on laws and resolutions from which she or he is likely to gain a direct financial profit, and no member of Congress or administrative officer of the United States shall use privileged information to which he or she has access to make business transactions for financial gain upon grounds that are not accessible to residents of the United States at large.(vii) ensure the integrity of elected officials by requiring every candidate standing for elected office in the Legislature and Executive to provide five years of tax returns and any additional financial disclosures deemed necessary to confirm the independence of such officials. Nominees for cabinet positions and positions on the Supreme Court or

Appellate Courts of the United States must provide the same financial disclosures as persons standing for federal election.

2. The United States is a deliberative democracy in which speech rights are to be interpreted with the understanding that the core purpose of liberties of speech and free media is to promote knowledge and comprehension of issues by citizens. Speech or expression of opinion in the form of advertising aimed to influence voters may be limited by laws as necessary ensure the fair value of each citizen's political liberties, including access to information not distorted by the profit-motive and limits to inequality of political influence through control of media content. (i) Paid political advertising is subject to legal limitation in the interests of assuring accuracy, and limiting inequality in political influence among citizens. (ii) For-profit corporations, and non-profits that spend more than 10% of their budgets on lobbying, do not enjoy the same free speech protections as individuals under the First Amendment. (iii) No one who works for a registered federal lobby can be elected to the House or Senate or hold any federal office for a period of ten years after their employment as a lobbyist; and no federal legislator or officer may work as a lobbyist for any corporation for ten years after their federal service. (iv) Because of the public goods involved in communication networks, every major media network must provide a reasonable minimum level of free time or space on websites for candidates for federal office who won their party’s primary with more than 10% of the registered voters in their district. (v) Congress must enforce these provisions through law.

While the details can be debated or altered, amendments of this breadth and depth would work a revolution in American politics: it would end the plutocracy that has developed within our federal government, opening up federal offices to people with great ideas who only have modest means and family connections. We would no longer see a Senate made up mostly of multi-millionaires and a House boasting a majority of lawyers. The first amendment would end the arms race in campaign expenditures and allow reasonable limits, while the second would direct our courts to stop equating money with speech and equating corporate speech with speech by real human persons. It would thus create a framework within which effective statutory campaign finance laws become possible. And although boosting the salaries of federal legislators would be controversial, the argument for it goes back to our founding fathers who saw that we would need legislators who are beholden only to the public rather than to wealthy friends for their living. It would also close the loophole that allows insider trading by members of Congress.

The second amendment would reign in corporate lobbies and so-called “super-pacs.” It would end the revolving door between Congress and major lobbies that gives members of Congress an incentive to curry favor with likely future employers. It would also greatly expand access to our major medias for new candidates without the need for massive warchests of campaign donations.

Cyberhacking and Foreign Attacks on Democratic Elections. The crisis of 2016 indicates the need for another amendment concerning campaigns. When Russian operatives

hacked into the DNC and then later into the computer of Hillary Clinton’s campaign manager, they performed a cyber-version of the Watergate break-in. Few now think that this was directed or planned by the Trump campaign, whether or not some Trump staff encouraged it. But our focus should be on the future rather than litigating the past: we need to deter such hacking and ban our parties from using stolen goods that may make them beholden to the thieves. The privacy of campaign communications has to be protected for the process to be viable and have integrity. This principle is so important that it should be in the Constitution:

3. The privacy of all political campaign communications shall be protected by law, except where those communications show evidence of a crime and or are legitimately subpoenaed, and political campaigns may not use stolen information to their benefit.(i) Political campaigns that knowingly receive stolen information for strategic use may be disqualified from election pursuant to law. (ii) Political campaign officials who knowingly collaborate with foreign governments or their proxies, accept assets from foreign interest groups, or encourage foreign agents to steal privileged information from rival campaigns are guilty of treason and subject to criminal punishment accordingly.(iii) Congress shall enforce these provisions by law and use all necessary measures to deter cyberattacks on American campaigns and election processes by foreign powers.

The second clause is needed to ensure that foreign powers aiming to manipulate American elections will receive heavy penalties, potentially even including kinetic attacks; precommitment to response greater enhances the deterrent.

Viability of Third Parties. Americans are also increasingly frustrated with the two dominant parties which are protected by the endemic problem that third party candidates will simply act as "spoilers” until their popularity rises to place in the top two. While Libertarian and Green candidates did not ultimately turn the election of 2016, as they did the election of 2000, they easily could have done so – and without changes, we will see spoilers in future Presidential elections, as well as in Congressional races. Republicans should be especially concerned here: without Ross Perot, Bill Clinton might never have been President. More fundamentally, a system that prevents third parties cuts off one of the main routes through which parties can develop to better serve public interests and citizens can learn from experimenting with alternative party candidates. This is a major and fundamental injustice in our present system.

Moreover, this is a stupid problem to have when there is such a simple and effective fix for it, namely the "automatic runoff system" (which functions very well in Australia, for example). It works by allowing you, the voter, to rank your picks: you pick a first choice, a second preference if you wish to, a third choice, etc. If your top choice candidate does not place among the top two finishers in the first round, the voting system then reassigns your vote to your second choice (if any) – or to your third choice, and on down – until it reaches a candidate you listed who placed among the top two based on all voters’ initial first choices. Thus for example, a voter in Florida in 2000 could have ranked Ralph Nader first and Al Gore second, or Pat Buchanan first and George W. Bush second; their computerized votes would then have gone to Gore or Bush respectively, but their support for a third party candidate would still have been registered in the first round. This is exactly like holding an actual runoff election (as France does,

and thus Louisiana too) without all the extra trouble and cost. Thus we have an amendment that should be fairly uncontroversial:

4. (i) In the general election to seats in the House, Senate, and Presidency, the federal government shall provide a secure automatic runoff system as defined by law.3 (ii) Every state will employ the same voting system and vote counting methods, and maintain the same recount requirements for close elections, determined by one uniform federal standard. State governments must certify election results based on these standards.

The second sentence in this amendment undoes the worst offenses of the Gore v Bush decision by the Supreme Court in Nov. 2000, which left voting systems entirely up to state governments without safeguards necessary to ensure democratic rights, equality of political opportunity, and fairness. That short decision was one of the most egregious in American history, perhaps third only to Dred Scott and Plessy: it implied that state governments could allocate their electors however they liked, no matter what the will of their people. According to this ruling, Florida (or any state) could, for example, float up red and blue balloons and allocate its presidential electors to the candidate whose balloon rose faster. The need for uniform federal standards has been obvious for a long time now.

A Fair Primary System and Reliable Voting. The there are several other problems in our election system that involve more divisive issues of fairness that have to be faced and overcome if we are to have a democratically accountable federal government. Our primary election system, for example, is a root cause of our national polarization; it drives parties towards the most extreme wings of their base, which has massive effects on our national well-being. This has produced a poisonous atmosphere in D.C. that makes compromise increasingly harder. Yet we allow these primaries to be run by private party bosses without uniform national legal standards. Worst of all, the primary system gives enormous unjustifiable advantages to early voting states like Iowa, New Hampshire, and South Carolina. There is absolutely no reason why they should have this huge extra electoral influence. I sketch here one rotation system that would solve this problem in an equitable way.

5. During election years, Congress shall determine five dates for primary elections, beginning no earlier than March, and spaced at regular intervals. Five groups of states, as equal in number as the number of states allows, will be fixed for a period of 20 years by law. One group of states will vote on each of the five primary dates in an election year, and their order will rotate every four years, so that each group votes first one time during this 20-year period, second one time, third one time, fourth one time, and last one time.

The whole voting process has increasingly become a battleground of strategic gaming in recent 3 It is certainly true that this would require computerized voting systems that are unhackable, or protected by multiple backups. But it is not hard to write laws that require a purely mechanical calculation of the number of votes cast at each polling station as a backup that can be checked against computerized totals; and other fail-safes can also be instituted. The bigger challenge is to make sure that foreign governments are deterred from interfering in our elections either by hacking or fake news, manipulation of candidates by blackmail, etc. That probably requires a very tough set of promised countermeasures to hacking that is aimed at election-manipulation (such as conventional military responses that are required by law when such hacking is confirmed).

years, which is infuriating Americans on all sides. Parties should be trying to convince voters on the issues rather than to rig the voting process to their advantage like cheating crooks. A few simple phrases added to the Constitution can increase turnout, assure everyone that voter fraud is impossible, and prevent shenanigans by state officials that make voting systems less reliable:

6. (i) For all federal elections, state governments are obliged to do everything reasonably feasible to run an electronic balloting system not subject to errors or lines at polling places exceeding 1 hour. (ii) The people have the right to have their votes counted by the most reliable balloting methods available for a reasonable cost. (iii) Election day is a national holiday, and at least one other weekday and weekend day for early voting must be available in every district of each state according to details determined by federal law; an easily accessible vote-by-mail system will also be maintained by each state.

7. To prevent fraud and ensure voter access, a national photo identification card will be issued to every citizen based on the Social Security system. (i) Citizens may register to vote with this ID card and one other form of identification, chosen by each state, the does not impose unreasonably burdensome demands on citizens. After citizens are registered, the national identification card alone suffices for entry to the polling booth. (ii) This system shall track citizens so that they can never vote more than once in a given election, and it will automatically move the voter's place of registration once they have established permanent residence in another district or state, with notices issued to them in good time for the next election cycle. (iii) This system will automatically remove each citizen from eligibility when they are deceased. (iv) No citizen shall be denied suffrage due to conviction for a misdemeanor, or voting rights for more than 10 years after the end of a sentence for a low-level felony. (v) Advertising to discourage people from voting, mislead people about their voting opportunities, or to scare people away from polling places is a crime punishable by law.

The Presidential Election. The Electoral College is another massively unjust and destabilizing relic of long-outdated states' rights fears. There have been numerous attempts to get rid of it, including (as noted) an amendment supported by Richard Nixon in 1969 that almost cleared Congress but for four votes in the Senate (see the work of John Feerick in particular on this topic). Because our amendment process is so difficult, this antiquated and anti-democratic system remains: thus two of the last five Presidential elections have been won by a candidate whose main opponent gained an outright majority of that popular vote. That is anti-populist if anything is.

Although none of our political leaders stepped up to do anything about it after the debacle in Nov. 2000, the Electoral College system is grossly unjust. 230 years ago, it was intended to increase geographic diversity in the Senate. But small-population states that already have extraordinary amounts of extra weight in the federal Senate to protect their interests: since 1787, the gap between the largest and smallest population states has increased from 12-1 to 60-1. With all their massively disproportionate weight in the Senate, why should Wyoming, Vermont, Alaska, and North Dakota also get extra weight in the Presidential election? Their three electors are especially unfair in relation to other small states that are just a bit larger, such as New Hampshire, Idaho, Nebraska, and West Virginia, which get four each. Because New Hampshire

has roughly twice the population of Wyoming, each Wyoming voter has more than 33% more weight than a New Hampshire voter in the Presidential election!

This Electoral College system is infamous for concentrating virtually all attention on a few "swing states" (such as Ohio, Florida, and sometimes Pennsylvania in recent elections). The winner-take-all feature within each state leaves the votes of Republicans in California and New York, and Democrats in Kansas or Texas, "wasted" because the candidate who wins a bare majority in these non-swing states takes all their electoral votes. But this cannot be corrected by individual states deciding to apportioning their electors: unless all states do this together, the injustices will be further compounded – e.g. if the Democratic candidate wins state A by a 51-49% and takes all 10 of A’s electors, while losing state B by a 46-54% margin but taking 4 out of B’s 10 electors because B decided to apportion theirs while A did not (having won barely more than half of the votes cast in states A and B together, this candidate gets 14 out of 20 electors!).

These irrational aspects of our current system demotivate many voters, suppress participation, and result in candidates spending far more of their time on swing states (and on issues that matter to swing state voters, sometimes to the detriment of much larger states). A straight national majority vote for the President would produce a far more competitive campaign across the entire nation for obvious reasons: in a close election, every state would matter, because a few more votes for a Republican presidential candidate in New York might offset a few he lost to a Democrat in Idaho. Our course, with a direct election, presidential candidates would spend more time in larger cities, but they already do this now – albeit mostly in swing state cities! Because every vote would matter, this national popular vote for President would lead to far greater participation rates, and thus probably voter engagement with issues; when combined with an automatic runoff so that votes for third party candidates would also not be wasted, turnout would increase even further. Thus we have the following amendment:

8. Election of the President and Vice-President shall be by national popular vote, with an automatic runoff when no candidate receives more than 50% of the vote in the first round. If no candidate wins more than 50% through the runoff process, then the House of Representatives shall select the President from among the two candidates finishing with the two highest numbers of ballots in the popular vote. Any American citizen, whether born or naturalized, may stand for election as President or Vice-President.

Of course, after two Republicans Presidents have been elected by national minorities in the last 16 years, some Republicans may be tempted to assume that it is simply in their strategic interest to maintain the Electoral College, despite its gross unfairness to most Americans. However, even ignoring the question of basic democratic justice, they would be incorrect. John Kerry would have won the 2004 election with a minority of the popular vote if just 150,000 votes had changed in Ohio, and Republicans could easily find themselves losing because of the Electoral College in the near future. If large-population states like Texas start to vote more Democratic in coming decades, Republican strategists will live to regret keeping the Electoral College: for they will find that Democrats taking all electoral votes in CA, NY, and TX are usually unstoppable (especially if they also start to win some old southern states like Virginia and North Carolina more regularly). Moreover, because the Electoral College system leaves so much power in the hands of state governments that can literally do whatever they want with their electors irrespective of voters' wishes, it opens the possibility of new crises caused by manipulation of the

electors.But the question should not be decided on strategic grounds anyway: it is a matter of such

basic justice that if small-population states try to block an amendment to abolish the Electoral College, large states might be justified in fighting them by almost any means necessary, including refusing to participate in national elections, cutting all economic relations, and so on. We cannot expect to maintain a basic social contract and respect for the rule of law throughout our nation if a minority is determined at all costs to maintain domination over a majority without any justification other than their own power: that is simply tyranny, and it may justly be fought.

Finally, the last sentence of this proposed amendment reverses the outdated clause in the 1787 Constitution that prohibits naturalized immigrants from running for the Presidency.

Making Congress More Democratically Representative with Competitive Elections. An almost equally deep challenge to basic democratic justice is the rise of ever-more extreme gerrymandering by both major parties in state governments to ensure safe Congressional seats. As a result, almost 80% of House seats rendered normally non-competitive, and a party can win the House despite getting a million or even two million less votes collectively across the nation.

In uncompetitive districts, primary elections then become the main theater of action, which pushes candidates more towards the extremes of both parties. That's how we get Republican candidates who are unwilling to vote even for basic background checks for gun buyers at gun shows because they care more about the 10% of voters who decide their primary elections than they care about the general electorate. It’s also how we get Democratic candidates who consider instituting transgender bathrooms more important than ensuring a sound manufacturing sector in the United States. We cannot unfreeze the gridlock in Congress without more competitive elections for the House. While term limits are one possible fix, they do not address the main roots of the problem; they only prevent parties from building up a core of long-term leaders with the rare experience that comes from longevity. Rather than preventing the rise of elder statesmen and stateswomen who provide vital institutional memory, a better solution is to make Congressional districts more competitive through this sort of an amendment:

9. (i) Congressional House districts will be redrawn after each national census to maintain roughly equal numbers of citizens with drawing district lines defined to an abstract and equitable geometric rule4 determined by an impartial, non-partisan board in each state selected by means that Congress shall define by law. (ii) These boards shall adopt the best available mathematical rule, without regard to traditional boundaries based on geography, cultural or ethnic group lines, party affiliation, economic interests or class, or any other morally arbitrary distinction. (iii) In no case may district 1boundaries be drawn so that, for any two points A and B within the district, the shortest route within the district from A to B exceeds by three times the shortest straight line connecting the A and B.

Such a system is already working in several states, and results in new districts which are now more competitive and mix people from different backgrounds together without ossifying any

4 While I do not try to define that rule here, there is a lot of promising recent work on this among mathematicians which suggests that it would not be hard to create a computer system to do most of the district line drawing.

group identities or attempting to place people in interest-group categories, whether they voluntarily identify with such group affiliations or not. The geometric limit ensures that the districting boards are not abusing their considerable power, which would be more easily checked by federal courts citing the first sentence in this amendment. Such a system also makes moot all the divisive questions created by well-intentioned past efforts to create majority-minority districts in the wake of desegregation. But if the reform had the unintended effect of reducing minority representation in the House, the amendment could leave an avenue open for Congress or the federal Courts to make exceptions and adjustments to prevent extreme dispersal of minority voting power. Another possible solution would be to include multiple voting schemes that enable voters to express the strength of their preferences rather than only a bivalent yes-no preference. Such systems have allow voters to send much more nuanced messages with their votes, but investigating these more complex options is beyond the scope of my analysis.

The Structure and Procedures of Congress. All these amendments would still leave untouched the worst remaining legacy of the dominance of state governments at the time of our nation's founding almost two and a half centuries ago: namely, state equality in the Senate. While Madison and Hamilton fought against this massive injustice with all their resources during the Constitutional Convention of 1787, they were finally forced to accept it in order to create any functioning federal government at all. As noted above, ratio then between the largest- and smallest-population states was about 12:1, while it is now over 60:1, which hugely inflates the injustice involved in giving two senators to each state. If the ratio had been anything close to that in 1787, the federalists would surely never have accepted the compromise establishing the state equality in the Senate.

Throughout our nation's history, endless conflict has resulted from this truly enormous concession to some anti-democratic ideologies of the late 18th century: for example, the extreme efforts made by southern legislators to maintain an equal number of slaveholding states compared to free soil states ultimately led to the Civil War. Even after the Civil War amendments, much of the gridlock in Washington D.C. is still due to this single feature, which, even in simple majority votes in the Senate, enables representatives of less than a third of the nation's people to block crucial legislation, and senators representing less than a quarter of the country to block ratification of treaties, sustain Presidential vetoes, and even block amendments – as they did for direct election of the President. This great impediment in the American government moves our national system even farther from the kind of proportional representation that is achieved in parliamentary systems. While some democratic theorists (e.g. Thomas Christiano) suggest parliamentary proportional representation, and other legal reformers (e.g. Sanford Levinson) would write a new Constitution from scratch to overcome state equality in the Senate, I assume that this would be too difficult in the near future, even though most Americans identify far less now with their home states than they do with their nation as a whole – a 180 degree reversal from attitudes in 1787. Moreover, state equality cannot be directly amended under the current Constitution; one would first have to amend the clause that makes state equality unamendable, or (in a more revolutionary vein) write a whole new document.5

5 Another intriguing option would be leave the Senate intact with two senators from each state, but diminish its legislative powers towards zero, as eventually happened to the British House of Lords. This option is not technically banned by the letter of the Constitution, though it would probably be impossible to get ratified as a stand-alone amendment.

However, at least the most egregious injustices involved in the grand compromise can be reined in by a series of other amendments. These include reforms to bring Senate representation to Americans who are currently excluded from that body altogether, and to end the recent innovation of the filibuster, which makes the problem of minority rule in the Senate even worse still:

10. Filibusters are prohibited in the Senate and House of Representatives: debate may be extensive in time, but not unlimited, with one month set as the absolute time limit before an up-or-down vote by simple majority in each chamber. Internal Senate and House rules may never be used to bring about procedural results that violate the original intent of the Constitution as amended since its founding.

Beyond other obvious reasons for it, from a historical perspective, this change would be just: Hamilton, Madison, and the large-state delegations almost walked away from the Convention rather than accept a compromise that was so unfair to large-population states. They definitely would have walked away if the representatives of small states went even further and insisted that a mere 41% of Senators potentially representing less than a quarter of the population be able to block virtually all legislation and Presidential appointments. Moreover, the 1787 Constitution would never have been ratified if large state governments had anticipated the filibuster. Virginia barely ratified, partly because Patrick Henry was so incensed that 50% of senators representing less than a third of the nation were effectively given a veto. Expanding representation in the Senate would also ameliorate minority rule in the Senate:

11. The District of Columbia is granted two senators and House representation proportional to its population, just as if it were a state.6

12. When Puerto Rico submits a democratic state constitution that is approved by Congress, Puerto Rico is granted the full status of a state, unless at least three-fifths of Puerto Rico residents favor leaving the United States in a referendum, in which case Puerto Rico will become a foreign nation. Upon becoming a state, Congress is permitted to collect taxes on Puerto Rican assets to pay off the debt accumulated by Puerto Rico’s government.

13. Native residents of American protectorates lying outside the several states are collectively guaranteed American citizenship, House representation proportional to their population just as if they formed a state, and representation by one Senator.

Such amendments would not solve the main problem with the federal Senate, but would partly offset some of the injustice of that chamber. Moreover, the resulting odd number of senators would reduce the chance that no party has a majority in the Senate. These changes would also permanently settle the status of the remaining parts of the United States that are not yet states, thus obviating the need for a legal path towards statehood for remaining US territories.

When combined, these reforms would end much of the gridlock that has made it impossible to pass legislation even while holding the Presidency and both houses of Congress. When a party no longer needs more than 60 Senators and approval of large lobbies that provide

6 An amendment to this effect did pass Congress but was not ratified within the time limit that it allowed, which is another example suggesting that Congress or a convention should avoid placing time-limits on amendments when sending them to the states.

most of the funding for House member reelections (with safe seats, divisive primaries, no viable third party challengers etc.), our federal legislators will be much more responsive to the people they represent, and a majority party will be able to pass its promised agenda – allowing its supporters a chance to learn if they made a mistake, rather than simply being alienated by gridlock.

Beyond these vital measures, we also need to give Congress stronger motives to adopt a regular budget and assure the world that the United States can never default on its national debt – taking debt ceiling shenanigans off the table:

14. (i) Within a month after both the House and Senate have passed a federal budget, or significant parts thereof amounting to over half of federal appropriations, a Conference Committee of representing both Houses of Congress must meet and present their compromise budget measure to both houses for a vote by no later than 30 days after receipt from the Conference Committee.

(ii) In the event that Congress does not pass a comprehensive budget for federal outlays and taxation more than seven months after the end of the last fiscal year for which a federal budget passed both Houses of Congress, the President has the power to set a budget for that present fiscal year, the appropriations for each department and taxation levels of which shall not vary more than 5% in either direction from the budget last passed by Congress; and these levels of appropriation and taxation shall then be in effect as law until both Houses of Congress pass a new budget that is signed by the President. (iii) If Congress fails to authorize increases in the federal debt necessary to cover appropriations they have previously passed into law, the President is required immediately to decrease spending as he or she sees fit across federal outlays to bring the budget back into balance with regular payments on the debt included. At no time may the Government of the United States of America ever default on payment of its debts.

This kind of reform would assure that Congress begins again to do its most important work, i.e. determining spending and taxation levels, rather than holding endless hearings.

There are a few procedural reforms that would further improve chances for principled compromise in Congress, as well as the crucial role of federal courts in our system, including all the following:

15. The term for members of the House of Representatives is four years, with half the House elected every even-numbered year.7

16. Treaties concluded with foreign nations and international bodies are ratified upon approval of 3/5ths of the Senate;

17. (i) the Senate shall vote conclusively on all nominations made by the President, including Supreme Court nominations, within no more than four months from the date of the appointment, except in emergencies declared by the President. (ii) Any appointee on whom the Senate fails to vote within four months is automatically approved. (iii) But any

7 This system could easily be phased in by adding that, in the first election after the amendment is ratified, half the House shall be elected for two years, and half for four years, with each state dividing its districts into two and four year terms by lot for one cycle.

office left vacant by the President for more than six months may be filled by an appointee selected by the House of Representative and confirmed by the Senate. Such an appointee cannot be removed by President within six months after Senate confirmation except in cases of national emergency as prescribed by law.

18. A petition signed by 40% of members in either the House or Senate in favor of a bill is sufficient to enforce a vote on the bill within that chamber within two weeks after certification of the petition.

These changes would reduce the time that House members spend just campaigning and raising money (which can currently nearly half of their time), and would facilitate cross-party compromises on measures that a party leadership opposes. Item 16 would reduce the difficulty of ratifying treaties, which has become almost impossible in the recent era of extreme partisans. This saves us from endless temporary agreements made by the executive that can easily be overturned and thus provide no reliable basis for trade agreements and sanctions regimes.

Item 17 would also end the egregious increasing backlog of empty positions while nominations are increasingly delayed, which forces Presidents to resort to interim appointments to dodge Congressional oversight. It would also ensure that the President cannot effectively nullify past legislation creating various executive bureaus and functions by refusing to appoint someone confirmable by the Senate to lead these offices.

The Agenda liberalization amendment (item 18) prevents party leaders who claim to represent a “majority of the majority party" (which could be a mere 35% of the House!) from blocking legislation that would easily garner an absolute majority if it came to a vote. This would greatly increase chances for compromise legislation. Here again, we might also consider the possibility of cumulative voting systems – this time by House and Senate members on certain topics, such as budget items – which would allow minority groups to register especially strong preferences on issues that are crucial for their constituents. Such systems increase the likelihood that minority groups get at least some (or at worst, a little bit) of what they want or need most. Short of adopting a parliamentary system, we urgently need such measures to make it easier to pass sane laws through Congress. These measures would do much to improve relations between the legislative and executive branches, but some fundamental issues in this area remain.

The Relation between Congress and the Executive. The Presidential veto has grown beyond all proportions ever envisioned at the founding, and constitutes another anti-majoritarian obstacle in many cases. So I recommend the following change:

19. When a President vetoes or fails to sign a bill duly approved by Congress, upon reconsideration in Congress with at least 3/5ths of both houses concurring, the bill becomes law notwithstanding the President’s objections.

This reform would also ease the path to bipartisan compromise legislation. On the other side, we could also consider giving the President a limited line-item veto (at least on budget bills) to help rein in our federal deficits (see Sanford Levinson's work, such as Our Undemocratic Constitution).

Finally, the independence of the Justice department and Congress’s impeachment powers

both need to be clarified. The President cannot directly control the FBI or the Attorney General if their nonpartisan objectivity is to be maintained, and the Constitution’s phrase “high crimes and misdemeanors” is too vague a description. The following kind of language would address the vital issues that have arisen in recent years.

20. The Department of Justice and all its bureaus must operate as nonpartisan organs aimed at upholding the Constitution and enforcing the laws of the United States. (i) In order to ensure the Department of Justice can investigate serious crime within the executive branch, the Attorney General and Director of the Federal Bureau of Investigation shall be appointed to a term of 12 years, and cannot be dismissed by the President alone. (ii) The President can recommend removal of either chief Justice department officers to the Senate Judiciary committee, which can remove the sitting Attorney-General or FBI director by a vote of 3/5th of the committee’s members and concurrence of a simple majority of whole Senate. (iii) Whenever either of these positions is vacant, the House of Representatives shall recommend to the Senate one out of five nominees recommended by the President. If this Senate rejects this nominee, the House may recommend one of the remaining four. If this nominee is also rejected by the Senate, the President may submit a new list of five nominees to the House until the positions are filled. (iv) Whenever significant question arises concerning possible crimes by the President or Vice-President, the Attorney-General shall appoint a special prosecutor to investigate the matter.

21. (i) A sitting President may not be prosecuted for crimes less serious than murder or assault, but may be prosecuted upon the end of his or her term. (ii) However, Congress may receive indictments of the sitting President and impeach the President for any felony, including obstruction of justice. Congress may also impeach the President for gross incompetence, dereliction of duty, or major and often repeated violation of the customary norms of this high office that bring disrepute to the United States. (iii) The President cannot pardon himself or herself, or anyone accused of a crime that is potentially linked with high-ranking officials in the President’s administration or campaign, or the President’s family, close business associates, or friends.

The reasons for limiting the pardon power are obvious enough to need little explanation. The potential for this kind of abuse, or dangling a pardon to silence potential witnesses against a sitting president or soon-to-be ex-president, has been all too evident for some time. The pardon power is meant to correct for miscarriages of justice, open possibilities for mercy, or (in extreme cases) offer something to convicts who may become crucial for national security.

Relation of Congress to the Supreme Court. To address prevalent concerns about rising powers of the Judiciary in lieu of democratic controls, we should clarify and expand the options open to the Supreme Court, and perhaps the rest of the federal judiciary as well.

22. (i) The Supreme Court may, upon thorough review of a statute, decide neither to uphold the statute as constitutional nor to reject it in part or whole as unconstitutional, but rather to remand it for reconsideration in Congress. In that case, both houses of Congress must,

during their current term, take a new vote on the law in its current or revised form, giving full consideration to the questions raised by the Court upon remand. If they leave the law unchanged, the Supreme Court may then decide to hear take up the presenting case again, or simply apply the law as reaffirmed.(ii) To be constitutional, every statute must be supported by substantive public reasons relating to common goods beyond the brute preferences of interest-groups. Laws and executive orders with no rational basis beyond naked partisan advantage are thus unconstitutional.(iii) Federal courts must give considerable weight to the literal meaning of constitutional text, long-established precedents, and the legislature's original intent in forming laws. But the Constitution as amended, and treaties to which the United States is party, must also be understood as living documents that cannot fulfill their function unless they are extended to new cases with the aid of considerations arising from ordered liberty and the guiding principles of democratic justice that constitute the spirit of our laws. In cases involving transnational relations, the judiciary should consider not only the relevant treaties but also the organic principles of international law involved in all treaty-development.

The new option for the Supreme Court created by the first item gives it a way to allay the fear that courts are "legislating," enabling the Court to register objections without going as far as invaliding a law. The justices could instead force elected members of Congress to consider the issue that the Court would otherwise have had to decide for them.

The second item, on the other hand, would expand the Court’s powers to strike down measures that fail the most minimal rational basis test, thus affirming the importance of this key republican principle for our system. This would rein in partisan extremism with a threat of veto by the high court. Similarly, the third item would give the Court clearer directives for the most vital cases in which it must effectively expand constitutional law upon principled grounds that are not all literally spelled out in the Constitution. This is something like an ‘elastic clause’ for the Court that simultaneously constrains the bases on which any exercise of original jurisdiction should be conducted, thus directing the justices to decide and argue on these principled grounds. It also clearly delimits the relation to international law, which is taking on increasing importance in judiciaries of democratic nations around the world.

Supreme Court terms. There are also inequities caused by the life-terms of Supreme Court justices, not the least of which are gross inequalities between the number of justices that different President get to appoint, mostly by sheer luck. Fairness to voters requires that this not be left up to fortune, or to worsening partisan trickery, such as the highly egregious (and precedent-setting) Republican refusal to consider a judicial appointment made by Barack Obama while he still had 11 months left in office. The solution is a term limit, perhaps to something like 18 years, with a fair rotation system that fits mathematically with the term length, so that every President appoints the same number of justices.

23. (i) There shall be an 18-year term limit for the nine Justices of the federal Supreme Court, phased in so that two justices will retire within each 4-year presidential term (one in the President's first year, and one in the third year) on an annual retirement date set by Congress. (ii) Whenever a vacancy on the Supreme Court occurs other than through the

regularly scheduled retirement of a Justice, that vacancy will be filled through selection by lot among the presiding judges of the federal Appellate courts. The judge thus selected becomes a member of the Supreme Court immediately without further confirmation, but with a retirement date identical to that of the justice being replaced before his or her scheduled retirement. (iii) Congress may also provide by law for an equitable system of term limits, of not less than 25 years, for Appellate court judges to equalize as much as possible the number of Appellate court judges appointed within each four-year Presidential term. (iv) Upon retirement of the Chief Justice, the President shall promote any other Justice who has served six years or more to the Chief Justiceship. (v) Upon ratification of this amendment, the justices presently serving on the Supreme Court will be assigned new terms by lot: one term will be for four years, one for six, one for eight, one for ten, one for twelve, one for fourteen, one for sixteen, one for eighteen, and one for twenty years.

This change would ensure fairness to those electing our Presidents: under this provision, each Presidential election has an equal weight on the Court, rather than this weight being determined by the contingencies of physical health and other accidental factors. The 18-year limit would also reduce the "dead hand of the past effect" arising from older judges overstaying their competence for political reasons. It would also end the perverse incentive to appoint very young justices who may not be ready for this level of responsibility just so they can sit on the court for many decades. A similar system could be adopted to ensure roughly comparable levels of Presidential influence on the federal Appeals courts, whose judges would fill more Supreme Court seats under this kind of new system. Finally, this amendment prevents future “court-packing” by fixing the number of justices at nine, and phases in the new rotation system so that it begins roughly four years after ratification.

The Amendment Process. Part of the reason that obvious constitutional fixes like the ones listed above have never passed Congress is that the American constitution is one of the hardest in the democratic world to change. While British institutions are too easy to alter with 51% of a plebiscite, our system is too entrenched and thus inflexible. Like treaty ratification and presidential veto overrides, the supermajority thresholds for passing amendments through the regular process need to be reduced to make new constitutional compromises possible without extraordinary measures. The most salient solution would be

23. (i) The Congress, whenever three-fifths of both Houses shall deem it necessary, shall propose Amendments to this Constitution, which shall be valid when ratified by two-thirds of the several States. (ii) On application of three-fifths of the legislatures of the States, the Congress shall call a constitutional convention to consider and pass amendments in lieu of Congressional action on the same. The states may suggest amendments in calling the convention, but may not script the convention's agenda. (iii) If no convention has been called within fifty years after ratification of this amendment or fifty years since the last convention, then a convention of states shall meet to consider changes to this Constitution. (iv) For the convention, three commissioners shall be elected from each State in a

special election for the same, and they may not include anyone currently serving in the Congress of the United States or currently serving as a state official in legislative, executive, or judicial office. The convention shall be closed to communication with the outside world until it concludes its business, with commissioners acting as sequestered jurors for the duration.(v) These commissioners shall write rules for their convention proceedings according to ordinary parliamentary procedures and Congress shall provide funding adequate to the convention’s needs, or otherwise the President shall be free to appropriate the needed funds. The conventions will propose amendments to the States for ratification upon of three-fifths of commissioners. Amendments passed by the convention must then be ratified by two-thirds of the States to enter into force.

This proposal also clarifies how the convention process would work and makes it a more regular feature so that Americans can come to expect constitutional fixes to structural problems at regular intervals without requiring massive social upheavals to motivate them.

Democratic Education. Finally, some of the deepest problems with American democracy are rooted at the level of our citizens themselves, who typically understand too little of the issues and the functions of the federal government to exercise democratic power responsibly. This mass ignorance makes people easily manipulable by scare tactics, by appeals to vices such as group hatreds, and by outright deception and misinformation (such as obviously false economic and statistical information) – especially in an era when cynical systematic attempts to demonize mainstream media drive people towards unreliable fringe sources. Fortunately, this is something that can be solved by better education. Just one semester of Civics required for all high school students would transform our nation, making it much harder to deceive people en mass, or to manipulate gullible voters by playing on prejudices. Such a course could explain the main issues at stake in current federal politics – something that presently happens only in an ad hoc way in US History courses, social science electives, or wherever high school teachers can squeeze it in. The point of the course should not be to review the three branches of government again, which is drummed into students many times from 5th grade on. Rather, its curriculum should focus on the following topics, which every responsible citizen needs to know, but very few do:

• the basic the history of our tax laws, including changes in top and bottom rates, types of taxes, average tax burdens, and resulting federal revenues, in the last 50 years;

• the basic history of our current federal deficits and debts, and sources of deficits;• the basic history of our main entitlement programs, and future projections of their trust funds;• the main items in our federal budgets and their percentages (e.g. direct foreign aid is less than

1%, interest on the debt has topped $400 billion per year, annual Pell Grants are under $30 billion, down from $39 billion because squeezed by the Sequester, etc.)

• a primer in basic economics, e.g. inflation, how recessions work, forms of stimulus and monetary policy, and their usual and most likely effects;

• the economic definition of public goods, externalities, and causes of market failures;• a thumbnail history of our foreign policy from the mid-20th century on, including war

spending figures;

• an introduction to informal logic and critical thinking, along with review of common fallacies.

Such a course does not favor the left or the right: it favors genuine, deliberative democracy by forming citizens who are not easily swayed by lobby-funded short TV and internet ads, or by fake stories placed by foreign tyrants. A student should leave this course knowing, for example, that Reagan's tax cuts, like George W. Bush's, produced enormous federal deficits; but they would also leave knowing about the projected increases in entitlement program spending and threats to the Social Security trust fund. They would know the difference between a million and a billion in the federal budget, learn what food stamps and Medicaid cost, what it's like to live on food stamps, what our military budget looks like relative to other nations, and so on.

A movement to establish such a standard of civic understanding is really the only way that we can shore up the foundations of our democracy. Note that this course would be very different in content than AP Government, which is more thematic in coverage and only taken by a minority of students. This Civics requirement also does not need to increase the total number of high school requirements. Rather than requiring two full years of US History, as many states do, we can change that requirement to three semesters of US History to make room for one semester of Civics and Citizenship – which is another part of US history but with key topical focus points. This reform could be enacted by each state government one at a time, but a far better assurance would be a federal constitutional amendment saying that

25. Every high school student in the United States shall take at least one full semester of Civics, which shall include at least the basic history of tax law, along with objective information on our federal budgets, entitlement programs, and the fundamentals of economics necessary to assess proposed policies on these matters in a responsible manner.

Together, these 24 amendments would transform the United States from a nation that is foundering under its internal conflicts, gridlock, and corruption into a nation where the government can once again serve the common good, advance prosperity for all, and uphold democratic ideals around the world. Adopting even half of these proposals would constitute the most profound constitutional renewal we have seen since the Civil War. Of course, there are other substantive amendments that could be included, such as constitutional guarantees for equal civil rights irrespective of race, gender, religion, or national background, to make permanent principles that are presently enshrined only in statutes and Supreme Court decisions. Other substantive amendments might tackle such divisive issues as gun rights and gun safety, and more public funding for medias freed from profit incentives. But I have focused here on the procedural changes necessary to make the United States a deliberative democracy in which all citizens have a fair part in electing an effective federal government that enacts the majority agenda – so that we may all learn from experience when the majority makes mistakes, which is an essential part of all citizens’ personal development.

III. How to Pass the Amendments: A New Constitutional ConventionCritics will say it is impossible to pass these sorts of amendments, or (worse) that it is

even dangerous to try. But these are counsels of total defeatism: following them can only ensure

that things get worse. Some amendments, such as automatic runoff, should not be controversial at all. Others, such as direct election of the President, would certainly be opposed by some smaller population-states; but they may be persuaded by the advantages of making them competitive arenas again, as noted. Most of the procedural amendments proposed above do not directly favor either main party – indeed the automatic runoff provision favors small third parties, and the 18 year term limit on Court appointees is completely egalitarian. The voter ID law gives something to both sides. And on what grounds could anyone reasonably oppose giving every high school student a one-semester course on the history of our federal budget, tax law, deficit and debt, entitlement programs, and basic economics? Most conservatives would love this idea, hoping it would instill greater respect for fiscal prudence (and the course would be simply factual).

Nevertheless, the power of entrenched special interests might still make it very difficult to pass any of the proposed amendments through both chambers of Congress before sending them to states, as was done with all prior amendments to our Constitution. The very problems we are trying to fix in Congress makes compromise there on amendments impossible – unless by some miracle the amendment procedure itself were first changed to lower the required thresholds (as suggest in item 24 above). As things now stand, when amendments are considered one by one in Congress and by the states, a massive lobby against each of them will be more mobilized than the wider but diffuse support for each amendment (just as we saw with the impossibility of getting even minimally sane gun safety laws passed). Consider the amendment for direct election of the President, which passed the House in 1969 by a huge margin of 338 - 70;8 but small southern states filibustered the amendment to death in the Senate.9 This shows how the different flaws in our system can reinforce each other; with a lower threshold or filibuster ban, this amendment would have passed Congress. The atmosphere in Congress now is far worse than it was in 1969, even after the divisive debates over the Civil Rights Act.

In short, Congress cannot fix its own problems or those of the federal system in general. But fortunately, our founders included within the amendment provision in the Constitution a different procedure whereby the solutions can come directly from the people when two-thirds of the states call a new convention to consider amendments and send proposed amendments for ratification by three-quarters of the states. This process has never been used, and it needs to be clarified (as the 24th amendment I proposed would do); but it's time has finally come.

Critics see such an "Article V Convention" as a radical and dangerous gamble, but the problems we need to fix are really much more dangerous in the long run. Liberals like Lawrence Lessig and Sanford Levinson have called for such a new convention, and it has been popular with right-wing figures like Marco Rubio and Greg Abbott, which suggests that the idea would appeal to grass-roots populism. Perhaps for this very reason, other liberals during the last three years have often expressed fear that a convention called directly by the states would be a "runaway" process leading to extreme right-wing dogma being enacted.

These fears are entirely irrational and, taken to their logical endpoint, express despair over the very possibility of democracy fixing itself (in that case, maybe we should give up on the

8 https://library.cqpress.com/cqalmanac/document.php?id=cqal69-1247065. Notably this amendment also included provisions for a runoff election if no candidate for the Presidency received at least 40% of the vote (allowing for a plurality President who received between 40 - 50% of the popular vote). The amendment I propose for an automatic runoff elections neatly takes care of this issue.9 https://library.cqpress.com/cqalmanac/document.php?id=cqal70-1291702

Constitution entirely and establish an aristocracy of philosophers?). These critics seem to forget the ratification process. Even if a convention passed some highly ideological amendments – e.g. banning Islam, or outlawing abortion after the first trimester everywhere, or making guns mandatory for school teachers, or (more likely) demanding a balanced federal budget with no exceptions for deep recessions or other emergencies – three-quarters of states would certainly never ratify them. And if a bad amendment such as a strict balanced budget requirement did somehow get ratified, people would quickly learn their folly when economic chaos ensued -- just as they learned when Prohibition was instituted a century ago. It is much better that the people should feel their effective democratic power and learn from mistakes, rather than feel simply controlled by elites and thus become cynical and ever-more disengaged.

But on the other side, the convention process holds out great hope. The call for a new convention would create a new era in U.S. politics, a 'teacheable moment' like none other:

• it would inspire a deep national conversation that would radically improve citizens' understanding of the difficulties we face, and perhaps even move people to talk across the political chasms now dividing us;

• it would provide a much more positive way for people to channel the deep anger that has understandably built up at our federal Congress, while also promoting civic virtues, and potentially renewing loyalty to the reformed federal government;

• it would probably bring some of the best political minds of our time together under a call to transcend party politics, and do an end-run around the big lobby groups with a lock on D.C.;

• convention delegates, with historical reputations at stake and the awesome sense of repeating the work of the 1787 Convention, would be under tremendous pressure to come up with innovative solutions and to produce substantive results that could be ratified;

• and most importantly of all, a convention offers the prospect for compromises that break basic logjams by combining into a single amendment provisions more favored by the left and provisions more favored by the right, or combining provisions favored by small states with others favored by large states, etc. In other words, a convention allows more room for ‘logrolling’ the get amendments passed onto the states.

As the election of 2016 has clearly shown, we cannot continue to allow things to keep disintegrating. Our fear should not be that such an Article V convention would extend its mandate and take on a wide array of issues pertaining to the soundness of our federal government. Rather, we should fear the opposite, namely that some members of Congress might try to script the convention's agenda in advance and thus hamstring the process, robbing it of most of its potential. For example, some conservatives would like to limit a convention to considering a balanced budget amendment, or to just a handful of other topics they care about.

On the contrary, in order to work and produce compromise, a new convention should have an open agenda, and just like the 1787 convention, feel free to ignore any limiting instructions that Congress may try to give in funding the convention and setting it up (a role apparently given to Congress by the Article V process). A convention exercises original sovereignty coming directly from the people via their states, which transcends the authority vested in Congress. Wise state leaders would call for all states to agree to send delegates who are not current members of the House or Senate, or current or recent lobbyists, or perhaps even current members of the state government sending them. Though some state officials might wish

to appoint them, ideally states should hold a popular election for convention delegates – much as was done in 1776 when several of the 13 original colonies held conventions to set up new state governments. We should look for delegates with wisdom, life-experience, and genuine concern for the future who have as little monetary interest in the outcomes of the debates as possible. I suggest that each state send between 2 and 16 delegates based on their population size (mirroring the House to an extent), but vote as delegations, or state by state, within the convention: for an amendment that cannot gain the support of a majority of state delegations is unlikely to gain ratification by 3/4 of states. We should look for convention leaders who can get strong majorities of delegates to back proposed amendments. Obviously the closer they came to unanimity, the greater moral force their recommendations would have.

One interesting possibility might be to combine all the amendments I have outlined here into one giant amendment with many clauses. Call it the Bill of Democracy, to parallel the original Bill of Rights. Its preamble could read as follows: "We the People of the United States of America, in Convention Assembled, in order to form a more democratic union, to establish deliberative ideals of civic virtue, and to restore the integrity and efficiency of our federal government, do here highly resolve that the following amendments to the Constitution be proposed to the several states for their consideration and ratification..."10 Then, and only then, may we say that we have fulfilled our sacred duties to our nation, and have fully honored the sacrifices of millions who died in order that we might have a democracy at all.

10 For more thoughts on these amendments and other more substantive possible amendments, please see faculty.fordham.edu/davenport/convention.html.