The Constitution Turns 225 Today. What Should It Look Like in 200 Years?

The law, lawyers, and the court.
Sept. 17 2012 5:00 AM

Happy 225th Birthday, U.S. Constitution!

Now let’s give you a makeover for the next two centuries—by looking to the states.

Constitution of the United States
Constitution of the United States

Photograph by Dalin Brinkman/iStockphoto.

Today marks the 225th anniversary of the Constitution of the United States, publicly unveiled in Philadelphia amid considerable fanfare. As Americans think back on the last two and a quarter centuries, we should also think ahead by the same amount. What will and what should the Constitution look like 200 years hence? Or if that seems too mind-bendingly futuristic, what will and should it look like in 2020 or 2121?

The most powerful portents of the future are to be found in America’s existing state constitutions, the proverbial laboratories of American democracy. These 50 documents have converged to form a distinctly American model of governance—call it “American exceptionalism,” if you like. For example, unlike the regimes in various democratic countries around the world—England, Germany, France, Israel, India, Australia—almost all 50 states follow the same basic formula, featuring (1) ratified written constitutions, (2) bicameral legislatures, (3) chief executives who look remarkably like mini-presidents, and (4) robust bills of rights enforceable in ordinary courtrooms.

This is our basic American model, and it’s not going anywhere. Proposals to amend the federal Constitution are taken seriously when they fit within this framework—and especially when they have already been adopted and road-tested by the states. A brief history lesson: The federal Bill of Rights, ratified in 1791, tracked various pre-existing state bills of rights; the federal Reconstruction Amendments of the 1860s, ending slavery and protecting free blacks, borrowed from the best constitutional practices of antebellum free states; and the federal Woman Suffrage Amendment prevailed at the continental level in 1920 only after women had won the vote under many state constitutions.

Advertisement

Indeed, the Philadelphia Constitution of 1787 to which we wish happy birthday was itself built upon state constitutional templates. In their decision to put the federal Constitution to a special ratification vote of the people, the framers copied the models of the Massachusetts Constitution of 1780 and the New Hampshire Constitution of 1784. The idea of a federal census borrowed from the Pennsylvania Constitution of 1776 and the New York Constitution of 1777. The elimination of property qualifications for federal public servants likewise borrowed from Pennsylvania, as did provisions for all federal lawmakers to be compensated from the public fisc. The broad outlines of executive power combined the best of the Massachusetts and New York constitutions. Various elements of judicial independence drew upon state antecedents, as did the U.S. Constitution’s basic commitment to trial by jury.

So much for the past 225 years. Let’s now think about the next two centuries. How could we spruce up our founding documents based on changes the states have made to theirs?

Many states have term limits for state legislators and also allow voters to recall corrupt or incompetent state lawmakers in certain situations. This invites us to think hard about whether the federal Constitution should provide similar checks against Congress. Or consider the fact that no state has an upper house in which each county has two seats, regardless of population. Perhaps the Senate could be changed to be more proportionate—a popular idea in Slate’s How To Fix the Constitution series. Imagine, for instance, a federal amendment giving each state at least one senator and capping even the largest state at eight senators. This would keep the Senate at roughly its present size and would respect the existence of the states, while dramatically reducing mal-apportionment. (There is, of course, a special rule in the U.S. Constitution making it particularly difficult to modify the apportionment of the Senate via a constitutional amendment. But nothing prevents future amenders from preserving the existing apportionment of the official “Senate” while transferring much of the Senate’s real power to a newly created, more proportionate, entity—call it Senate 2.0.)

Consider also the way that the states elect governors—directly by the voters, one person, one vote. If the federal Electoral College is so good, why does no state closely follow it? Let’s scrap it. And if naturalized Americans like California’s Arnold Schwarzenegger and Michigan’s Jennifer Granholm can be trusted to serve as governors, why not amend the federal Constitution to allow them to run for president? (In fact, in 2004, the Senate held hearings on just such a proposed amendment, sponsored by Republican Sen. Orrin Hatch and strongly endorsed by several congressional Democrats.)

But is it realistic to think that current entrenched interests would ever allow sweeping amendments to prevail? For example, why would Wyoming ever agree to change the way the states are represented in the Senate, given how the current regime favors states with small populations? Or why would our representatives in Congress ever support an amendment to limit their own terms? The key answer is a long time-delay between the vote on a visionary amendment and its start date—the sunrise rule.

A close look at the original Constitution reveals a few clever uses of this device. Although the Deep South refused to give up the power to import trans-Atlantic slaves for the first 20 years, the region was willing to allow Congress to ban importations beginning in 1808, and forevermore. Had the framers been equally clever in the use of sunrise rules on other slavery-related issues—for example, had the original Constitution prohibited slavery in all western territory after 1808, or prohibited three-fifths apportionment credit for all slaves after 1808—perhaps Americans might have ultimately ended slavery without the unspeakable carnage of the Civil War. States in the Founding era, including Pennsylvania, Connecticut, and New Jersey, did use sunrise rules to achieve gradual abolition. Slaves at the time were not liberated, but their children walked free.

In the same spirit, amendment-minded Americans should imagine ourselves today as representatives of 22nd-century posterity, tasked with the awesome challenge of framing just rules for that society even though we won’t be here to see it. As modern American constitutionalists focus obsessively on the deeds and words of 225 years ago, shouldn't we spend at least some time thinking about what we want two centuries into the future? Much of American constitutional law remains to be written.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

TODAY IN SLATE

The World

The Budget Disaster that Sabotaged the WHO’s Response to Ebola

Are the Attacks in Canada a Sign of ISIS on the Rise in the West?

PowerPoint Is the Worst, and Now It’s the Latest Way to Hack Into Your Computer

Is It Offensive When Kids Use Bad Words for Good Causes?

Fascinating Maps Based on Reddit, Craigslist, and OkCupid Data

Culturebox

The Real Secret of Serial

What reporter Sarah Koenig actually believes.

Culturebox

The Actual World

“Mount Thoreau” and the naming of things in the wilderness.

In Praise of 13th Grade: Why a Fifth Year of High School Is a Great Idea

Can Democratic Sen. Mary Landrieu Pull Off One More Louisiana Miracle?

  News & Politics
Politics
Oct. 23 2014 3:55 PM Panda Sluggers Democrats are in trouble. Time to bash China.
  Business
Business Insider
Oct. 23 2014 2:36 PM Take a Rare Peek Inside the Massive Data Centers That Power Google
  Life
Atlas Obscura
Oct. 23 2014 1:34 PM Leave Me Be Beneath a Tree: Trunyan Cemetery in Bali
  Double X
The XX Factor
Oct. 23 2014 11:33 AM Watch Little Princesses Curse for the Feminist Cause
  Slate Plus
Working
Oct. 23 2014 11:28 AM Slate’s Working Podcast: Episode 2 Transcript Read what David Plotz asked Dr. Meri Kolbrener about her workday.
  Arts
Brow Beat
Oct. 23 2014 4:03 PM You’re Doing It Wrong: Puttanesca Sauce
  Technology
Technology
Oct. 23 2014 4:36 PM Vampire Porn Mindgeek is a cautionary tale of consolidating production and distribution in a single, monopolistic owner.
  Health & Science
Bad Astronomy
Oct. 23 2014 7:30 AM Our Solar System and Galaxy … Seen by an Astronaut
  Sports
Sports Nut
Oct. 20 2014 5:09 PM Keepaway, on Three. Ready—Break! On his record-breaking touchdown pass, Peyton Manning couldn’t even leave the celebration to chance.