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Kevin Frazier is an assistant professor at the Crump College of Law at St. Thomas University. Starting this summer, he will serve as a Tarbell fellow.
Learning from your mistakes isn’t just something that applies to your personal life — it’s a core lesson of political science. Ten years before the framers of our Constitution gathered in Philadelphia to draft a new governing document, they adopted the Articles of Confederation. Our Founding Fathers were so assured of its success that they intended it to last in perpetuity. Forever, in this case, was a decade.
The framers realized that their best effort to design a workable government clashed with the necessities of a changing nation. Here’s a short list of choices they quickly came to regret.
First, Congress operated like the United Nations — representatives were paid and selected by states; unsurprisingly, this led to representatives having little to no interest in supporting any legislation that negatively affected their respective states. Second, they vested all power in a single branch of government; their concern about a single executive (think King George) having too much power led them to avoid creating an executive branch and to instead place all power in the legislative branch. Third, even if the people realized a need to amend the articles they could only do so upon all states agreeing to the change; as you may imagine, reaching consensus among 13 states is nearly impossible.
Fortunately for us, the articles did not last for eternity. The framers learned relatively quickly from their mistakes. They rallied to vastly improve upon their first go at creating a country. The second time around they incentivized our representatives to think nationally as well as locally; they created three branches of government and reduced their odds of concentrating power by developing a series of checks and balances; and they lowered the threshold to amend the Constitution.
That rapid pace of learning, though, has not carried into the 21st century. Consider that we’re currently in the third longest drought between constitutional amendments. Sixty-one years passed between the ratification of the 12th and 13th amendments; after the 15th Amendment, it took another 43 years before the ratification of the 16th; and it has been decades since we ratified the 27th Amendment in 1992. In the interim, nations around the world have taken meaningful steps to improve their democracies — their reforms, minimally, deserve close scrutiny from all those who want American democracy to remain as representative, deliberative and responsive as possible.
Thankfully, a group of scholars from across the political spectrum has already done a lot of our democratic homework for us. Convened by the National Constitution Center in 2022, this group closely studied ways we can improve our democracy by learning not only from our past but also from the democratic endeavors of other countries. Despite their ideological differences, these constitutional experts reached consensus on five potential amendments to the Constitution:
First, eliminating the natural-born citizen requirement for an individual to serve as president. In an age of globalization, why not allow the most qualified candidates to run for any office — regardless of whether they were born here or choose America to be their home?
Second, making it a bit easier to amendment the Constitution. At a time of novel and significant problems arising, it makes sense to increase the odds of responsive and responsible adjustments to the Constitution, right?
Third, providing Congress with the chance to veto agency rules prior to their enactment. Such a “legislative veto” was a popular means for Congress to check the administrative state prior to the Supreme Court declaring the practice unconstitutional.
Fourth, clarifying when and how officials may be impeached — a constitutional law question that has puzzled scholars for decades, if not centuries.
And, fifth, imposing an 18-year term limit on Supreme Court justices. Given the increasing importance of Supreme Court decisions on social, political and economic affairs, this change may help restore faith in this essential institution.
You may agree with all of these or none of these amendments — that’s fine. These suggestions — reached by an ideologically diverse set of really smart people — are not intended to open and close the conversation on how to make sure our Constitution has the checks and balances required by the 21st century. Let’s instead use this list of five to revive our willingness to closely study the health of our democracy, our Constitution and our political community. Though the Constitution itself is surely one of the greatest gifts left by its framers, even more valuable is the gift of their example of democratic experimentation.
