Revising The Constitution: What's Required?

The United States Constitution is one of the oldest in the world, and there is a growing debate about whether it needs to be rewritten. The Constitution has survived numerous wars, political scandals, and challenges to its authority, but some argue that it no longer reflects the priorities of modern society and contains several shortcomings. Proponents of a rewrite suggest that it should include modern, inclusive rights, such as the right to privacy, and address issues like term limits and campaign spending reform. However, others argue that a rewrite would be nearly impossible, as it would require a Constitutional Convention with 2/3 of states agreeing, and there are concerns that such a convention could get out of hand and jeopardize cherished constitutional rights. As the nation approaches its 250th anniversary, the question of whether to rewrite the Constitution remains a complex and divisive issue.

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Modernising the language

Former Michigan Supreme Court Chief Justice Thomas Brennan, in a 1982 law review article, called for a Constitutional Convention to reaffirm individual rights and the supremacy of states in the federal system. He advocated for modernising the language of the Constitution, removing outdated provisions such as the requirement of jury trials for federal common-law suits, which are no longer entertained in federal courts. Similarly, the two-year limit on military expenditures is moot considering the modern annual budgeting process.

Abe's Indignation League has also advocated for a Constitutional Convention to address specific points, including modernising the language, clarifying and strengthening states' rights, and setting ethical standards for American politics. They propose a rewrite of the Constitution using more understandable language, reflecting the changing dynamics of American society.

The language of the Constitution has survived numerous challenges and interpretations over the years, and modernising it would ensure that it remains accessible and relevant to future generations. While there are concerns about the potential consequences of convening a Constitutional Convention, proponents argue that a complete rewrite is unlikely due to the ratification process requiring three-fourths of states' approval.

As the US approaches its semiquincentennial in 2026 and the 250th anniversary of its constitutional birth in 2037, the discussion of modernising the language of the Constitution will likely continue, alongside other proposed amendments to ensure the document remains effective and reflective of the nation's evolving needs.

Amending the right to privacy

The United States Constitution is one of the oldest in the world, and while it has been effective in safeguarding liberty, it has its shortcomings. One of the criticisms of the Constitution is the absence of an explicit right to privacy. While the Fourth Amendment protects the American people from unreasonable searches and seizures, it does not explicitly mention the right to privacy.

The right to privacy is a fundamental human right that is recognised in over 185 national constitutions worldwide, including Russia's. The Russian Constitution, in Articles 23 and 24, specifically protects the individual's right to privacy and the protection of personal data. Similarly, while Australia does not have a constitutional right to privacy, it has enacted the Privacy Act 1988, which provides a degree of protection for individuals' personally identifiable information.

In the United States, privacy rights have evolved through court decisions. The Supreme Court case of Griswold v. Connecticut in 1965 established that the Constitution guarantees a right to privacy against government intrusion. However, in the modern era, with the advent of new technologies and the increasing capabilities of intelligence agencies, the right to privacy has become a subject of international debate. The 9/11 terrorist attacks and the War on Terror led to a wave of mass surveillance, with critics arguing that these programs are too invasive and violate the Fourth Amendment.

Amending the Constitution to include an explicit right to privacy would require a significant effort. Thomas Jefferson believed that written constitutions should have a nineteen-year expiration date before being revised. However, amending the Constitution is extremely difficult and has never been successfully achieved in the US. It would require a constitutional convention, with 2/3 of the states agreeing to propose amendments, and then ratification by 3/4 of the states. While it may have been more feasible in America's early history, it is much more challenging now.

Despite the challenges, there are ongoing discussions and efforts to amend the Constitution and enhance privacy rights. Florida Governor Ron DeSantis, for example, has pursued constitutional reform, indicating a recognition among some politicians that the Constitution needs to evolve to meet the needs of a modern society.

Changing the selection of senators

The United States Constitution is older than the current Constitutions of Norway and the Netherlands, and it has never been rewritten. However, there is a growing consensus that it needs an overhaul. The Constitution has survived wars, political scandals, malpractice, and alarming decisions by the courts. As America approaches its 250th anniversary in 2026, it is only natural to reflect on the shortcomings of the Constitution, such as the undemocratic Senate, the troubling Electoral College, and the short two-year House term.

As a result, there were increasing calls for reform, and in 1912, Congress passed the Seventeenth Amendment, providing for the direct election of senators by the people of each state. This amendment was ratified in 1913 and marked a shift towards empowering voters in choosing their senators and reducing the influence of money and machine party power. The first popular Senate elections were held in 1914, and since then, there has been a sharp decrease in the selection of senators by state legislatures.

Despite the implementation of the Seventeenth Amendment, the process of changing the selection of senators remains challenging. Amending the Constitution is a complex task, and elections and voting are likely to play a crucial role in driving constitutional change. It requires a significant shift in public opinion and the support of a majority of states to initiate the process of rewriting the Constitution.

In conclusion, while changing the selection of senators has been achieved through the Seventeenth Amendment, further reforms to the Constitution and its interpretation are needed to address ongoing concerns about the Senate's representation and responsiveness to the people.

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Adding term limits

The United States Constitution has never been rewritten, and attempting to do so would be a challenging and potentially unwise endeavour. However, the Constitution can be amended, and there have been several calls for constitutional reform in recent years. One area that has been subject to amendment in the past is the addition of term limits for the President.

The concept of adding term limits for elected officials was a topic of debate during the Constitution's initial ratification. Alexander Hamilton and James Madison envisioned a president who would be nominated by Congress and serve for life, but this raised concerns about the potential for the United States to become an "elective monarchy". The decision by George Washington to voluntarily step down after two terms established an unofficial tradition of a two-term limit for presidents, which lasted for 150 years.

In 1947, two years after Franklin D. Roosevelt's death and the ascension of Harry S. Truman to the presidency, the House of Representatives proposed Joint Resolution 27, which called for a definitive two-term limit for future presidents. After revisions by the Senate, the proposed amendment was sent to the states for ratification in March 1951. This amendment, now known as the Twenty-second Amendment, was ratified on February 27, 1951, after almost four years of deliberation.

The Twenty-second Amendment establishes that no person shall be elected to the office of the President more than twice, and outlines eligibility requirements for succeeding unfinished presidential terms. This amendment has been in force since its ratification, and all subsequent presidents have served for no longer than two elected terms. There have been several attempts to modify or repeal the amendment, with arguments ranging from the need for consistent leadership in times of crisis to allowing non-consecutive terms.

While the process of adding term limits for the President through an amendment to the Constitution was lengthy and complex, it demonstrates that significant changes can be made to the nation's fundamental law without a complete rewrite.

Making it easier to amend

The United States Constitution is older than the current Constitutions of Norway and the Netherlands, and there have been calls for it to be rewritten. However, getting a constitutional convention would be extremely difficult, requiring a two-thirds majority across two-thirds of state legislatures, or 34 states, to agree. This is a high bar to clear, and it may have been more feasible in America's early history.

There are two ways to amend the Constitution, as outlined in Article V of the document. Firstly, a member of Congress can propose an amendment, which then requires a two-thirds majority in both the House and the Senate before going to the states for ratification. Since 1789, there have been over 11,000 proposed amendments, with 33 sent to the states for ratification, and only 27 successfully enshrined in the Constitution.

The second method is for two-thirds of state legislatures to petition Congress for a constitutional convention. This has never been used but is causing anxiety for members of both political parties. There are no rules outlined in the Constitution regarding the convening of such a convention, and critics worry that it could get out of hand, with cherished constitutional rights at risk. For instance, there is no guidance on how delegates would be chosen, how many delegates each state would have, or whether the convention would be limited to the proposed amendment or could take on a broader scope.

Proponents of an Article V Convention argue that a complete rewrite is unlikely because three-fourths of states, or 38 states, would still need to ratify any proposed revision, meaning 13 states could block an extreme proposal. However, this has happened before, as the 1787 convention lowered the number of states needed to approve the new Constitution and removed Congress from the approval process.

Some have suggested that elections and voting could be the force behind constitutional change. There have been calls for a Constitutional Convention to reaffirm individual rights, the supremacy of states in the federal system, and to modernise the language of the Constitution. Other proposed amendments include the right to privacy, term limits, campaign spending reform, and the elimination of the two-year limit on military expenditures.

Another approach could be to clarify and standardise the process for convening a constitutional convention, including guidelines on delegate selection, state representation, and the scope of the convention's proceedings. This would address concerns about a lack of rules and the potential for a convention to get out of hand. Standardising the convention process could make it a more viable option for proposing and enacting amendments, thereby increasing the likelihood of successful constitutional reform.

In conclusion, while there are valid concerns about the challenges of amending the Constitution, there are also potential solutions to make the process easier. Lowering ratification thresholds, removing Congress from the approval process, and standardising convention procedures are all possible avenues for facilitating constitutional reform. These approaches could strike a balance between the need for a robust and stable Constitution and the recognition that it must evolve to remain effective in a changing society.

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