Imagining a new U.S. Constitution for America’s 250th birthday

For starters, we could take account of new ideas that have emerged in the field of government over the past two centuries. Our founders thought of the Constitution as requiring a separation of powers among three branches of government, but a typical new constitution written today has a “fourth branch” of government, with institutions that are designed to ensure accountability. These include countercorruption commissions, ombudsmen and state auditors to monitor spending. Insulating accountability helps make it effective, and when bodies like this are mentioned in a constitution, their members cannot be simply hired and fired by the president at will. But such bodies are not mentioned in ours, and the Supreme Court ruled Monday that the president can fire members of independent federal agencies.

In a new constitution, we might also consider tinkering with the institutions we have. A national electoral commission to draw boundaries on the basis of technical rather than political considerations would reduce legislators’ incentives to draw safe seats. This would lead to more-competitive elections but less polarized legislatures. We could also institute rules to make sure the presidency goes to the person with the most votes. And a term limit for Supreme Court justices would eliminate the incentive to appoint ever-younger partisans to the bench. One idea, considered by President Joe Biden’s Supreme Court commission, is to allow each president to appoint two justices to an 18-year term. This would allow for justices to take a long-term view, without staying past their “sell by” date.

Another set of innovations has occurred in the realm of rights. We fought our Revolution for the inalienable rights to “life, liberty and the pursuit of happiness,” but, as society and the economy have grown more complex, ideas regarding what is necessary for a dignified existence have evolved. About 70% of Americans think healthcare should be a right, and most of the world’s constitution-makers agree. The right to an education is found in most constitutions, and the majority of them prohibit discrimination on the basis of sex or gender. Newer texts protect the disabled, and sometimes demand that policymakers take future generations into account.

To be sure, we should not adopt new rules just to follow the crowd. Political institutions have to fit their society. But government evolves like other kinds of technology, and we would do well to consider updating ours from time to time. This, at least, was Thomas Jefferson’s view. Forty years after he penned the Declaration of Independence, Jefferson wrote a letter to a friend in which he argued that “laws and institutions must go hand in hand with the progress of the human mind … we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

For the moment, we may be doomed to live under rules adopted long ago in a very different United States, but that should not prevent us from imagining a better set of possibilities.