The Democracy Constitution

In a recent blog post, we asked two questions. How would you design a new constitution? What would your government look like?

The reason we asked these questions is that one of the coauthors of Fault Lines in the Constitution was offered the opportunity to head up an unofficial constitutional convention. Michael Tomasky, the editor of Democracy magazine, charged Sandy with designing a government for America for the twenty-first century. After many years of finding fault with our founding document, Sandy had the chance to try to correct Framers’ missteps and to update it. So, how did he do it and what does it look like? Equally important, what did he and his fellow New Framers learn from the process?

Spoiler alert! You can jump to The Democracy Constitution right now, if you want to see the results of their efforts, including the surrounding essays and sample conversations on such issues as voting methods and gun rights.

The Process

Like the original convention, Sandy’s group did not, admittedly, represent a cross section of America. Most of the twenty to thirty active participants were law professors, and all were progressive or liberal in their political leanings. (Unfortunately, there is no class picture.) Rather than meeting in a stifling room in Philadelphia, the entire group gathered from one to three times a week—by Zoom—during the pandemic, from November 2020 and April 2021. The members also divided themselves into subgroups, according to their expertise and interests, which met more often. And, just as in 1787, a Committee on Detail composed the final document.

The Content

There are several areas in which The Democracy Constitution differs radically from our current Constitution. Here are a few of them.

Preamble

What differences do you see between this one and the Preamble in our current Constitution?

Bill of Rights. Whereas the United States Constitution was fairly quickly amended to include a Bill of Rights, the constitution of the twenty-first century opens with one.

Article I then addresses eleven specific rights, including:

• Abolition of slavery, torture, and degrading treatment
• Citizenship and equality
• Privacy and family life
• Workers’ rights
• Health care and education
• Environmental rights

Congress. One of the biggest changes relates to Congress. The Senate in this updated version cannot kill legislation passed by the House of Representatives. It can only delay it for up to four months. Thus, it has much less power than it does currently[KL1] . Also, low-population states, such as Wyoming, have only one senator while highly populated states, like California, have six senators. In addition, there is a third body. The Council of Indigenous Nations can also suggest legislation. And it must approve or disapprove any bills passed by the House that affect the treaty or other rights of native nations.

Amending the Constitution. With support from a majority of the House and Senate and of the voting electorate, the Democracy Constitution is much easier to amend than ours. A Citizens’ Assembly can also propose amendments.

Electoral College. Gone! Citizens vote directly for president and vice president.

Some Lessons

Although the framers of the Democracy Constitution shared general political outlooks, they did not agree on all aspects of how to organize a government. (The National Constitution Center in Philadelphia also conducted a constitution-drafting project and came up with three separate documents—progressive, conservative, and libertarian.) In fact, as in 1787, some members dissented from the new constitution. And, even Sandy, who organized the effort, took issue with parts of it.

If he had had his way, presidents could be fired through a recall election or a vote of no confidence by Congress. He also would have liked the largest cities in America—New York City, Los Angeles, Houston, and Chicago—to have their own senator[KL1] [CL2] , since their populations are greater than those of some states. These proposals, however, were voted down.

So a, major lesson of this project was to appreciate how hard it was for the delegates who met in Philadelphia in 1787 to arrive at agreement about the truly tough issues they faced. It is really difficult to think through what might serve us well in 2021 and then to try to persuade others, even if one thinks of them as political allies. Just think of how much harder it is to do that if they are not necessarily allies, as would be the case in an official rewriting of the US Constitution.

At the same time, another lesson is that compromises will always be necessary. One can’t really walk out of a hard assignment just because one loses a vote on a matter that one regards as important. James Madison hated the way the Senate was organized—with equal voting power for Delaware and Virginia—but he remained part of the Convention because he thought it was so important to replace the Articles of Confederation with a far more workable framework of government. He was right to hate that aspect of the Senate, but he was also probably right—fair-minded people can argue about this—that it was important to replace the Articles.

Reading our blog posts, which began in June 2017, and, we hope, at least one version of Fault Lines in the Constitution, to what extent do you agree with the Democracy Constitution? What compromises would you make?