Someone Else Wants A New Constitution!

 Erwin Chemerinsky is dean of the UC Berkeley School of Law. right there you know he is smarter than I am. He wrote  We’re living under a flawed Constitution. Let’s start fresh and rewrite it for the L.A. Times. He makes the usual points.

The framers of the Constitution, out of distrust for democracy, created the Electoral College so that elites would choose the president. However, never in the 20th century did the loser of the popular vote become president because of the Electoral College. But population shifts and partisan realignment have made this a regular occurrence in this century. It happened in 2000 and 2016, and it almost happened in 2004 and 2020. In the last election, if just 42,921 votes had changed in Arizona, Georgia and Wisconsin, Donald Trump would have been reelected president despite losing the popular election by almost seven million votes.

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The House of Representatives was intended to be the one body created by the Constitution that was representative of the people. But partisan gerrymandering — where the political party that controls each state’s legislature draws election districts — has become vastly more effective because of sophisticated computer programs and voter data. For example, in Pennsylvania, over several elections, the congressional elections in districts drawn by the Republican legislature resulted in Democrats’ receiving between 45% and 51% of the statewide vote, yet winning only 5 of 18 House seats. Unfortunately, the Supreme Court in 2019 held that federal courts cannot hear constitutional challenges to partisan gerrymandering. The justices have also undermined democracy by gutting key provisions of the Voting Rights Act and thwarting campaign finance reform.

I do not share his optimism that the Senate will end the filibuster, or that Congress will end partisan gerrymandering, and I certainly do not believe the United States Supreme Court would kill partisan gerrymandering. Partisanship will get in the way of all three instutitions reforming themselves.

I would like share his optimism about a Constitutional Convention:

And there is an alternative to a spate of separate amendments: starting fresh by passing a new Constitution. It does not take much reflection to see the absurdity of using a document written for a small, poor and relatively inconsequential nation in the late 18th century to govern a large country of immense wealth in the technological world of the 21st century.

It may seem strange and frightening to suggest thinking of a new Constitution at a time of great partisan division. But that existed in 1787; in many of the states, the Constitution was just barely ratified.

 I would like to have heard the Democratic Party convention get behind amending the Constitution. I do think it would be a winning idea (and here I show my own rose-tinted optimism and lack of smarts). Here is where I would amend the Constitution:

1. Get rid of the Supreme Court's grant of immunity to Presidents. (I saw a headline where this is afoot.)
2. Get rid of the Electoral College.
3. Proportional representation in the House.
4. Ranked voting for the House and the Senate.
5. Term limits for everyone.
6. Retention votes for the United States Supreme Court. We use this method in Indiana for our appellate courts. No one has been tossed out of office, but it does give some popular control over the courts.
7. A federal right of privacy.
8. Recall for the House and the Senate, but not for the President. So long as the President is Commander-in-Chief of the military recall seems to present a danger during wartime.

Comments?

sch 8/24/2024