America is coming up on its 250th birthday celebration this summer, and as part of thinking about where our country has been and where it is going over the next fifty years, I wanted to suggest a few constitutional amendments that I think could help get us on a better track for the future.
Why Even Make the Constitution Amendable?
The founders created the amendment process to the Constitution because they knew it would be needed. I was reading a good historical fiction series on the American Revolution and early founding days of the republic1, and it really drove home how much compromise and creativity went into the Constitution. It’s kind of mind-blowing how many unique features of the US government ultimately came down to a single vote, or someone coming or going from the convention at the right time. They knew that while the Constitution was inspired, it was also the work of imperfect men, and also a product of their time, and that a process for updating the constitution would be necessary for several reasons:
- To fix mechanisms that ended up working in practice differently than intended, and address unseen flaws in how things were setup.
- To reflect and address the changing realities and needs of the country as it grew and as technology and society progress.
- To allow the people to deliberately change the relationship of the people and the government over time as needed.
They also made the amendment process a non-trivial one, so that major changes in the government and the relationship between the people and the government required broad consensus, not just the whim of a temporary slim majority.
I don’t want to get into a history lesson, but some examples of things the amendment process has been used for in each category include:
- Fixing Flaws: Early on, they realized that the way they elected President and Vice President could and did put two political rivals together in presidency, which didn’t work very well in practice, so they changed how the Vice President was elected. Also, the Bill of Rights amendments were added as additional protections to the people.
- Addressing Changing Realities: One of the big compromises in the original constitution was basically punting on the thorny issue of slavery. After the Civil War, several amendments finally addressed correcting those earlier compromises now that the country was ready to move on. Also, over time the right to vote was expanded to women and all citizens, to better reflect changing societal norms.
- Deliberate Changes to the Relationship with the Government: I’m less a fan of some of these changes, but for instance changing the Senate to being elected directly, or allowing the federal government to collect income tax were major changes that were done via the amendment process. While not everyone likes those changes, at least they weren’t done just as a legislative change by a slim majority, but actually required buy-in from the public at large. I guess you could also count Prohibition and the Repeal of Prohibition under this category.
Anyhow, that’s a lot of background. Let me jump into my thoughts on a few new Constitutional amendments for our nations 6th 50 year cycle.
An Age Limit for Federal Office
The first amendment I’d like to suggest is setting an upper age limit for federal offices (President, Vice President, Congress, and the Supreme Court), somewhere in the 75-80 years old range. This amendment would likely need to include some provisions for how to transition to this new age cap, especially for sticky areas like the Supreme Court, and possibly some mechanism with a high threshold requirement allowing rare, specific exceptions if they’re broadly supported.
I think there are several reasons why this is both reasonable and valuable:
- Our Constitution already includes lower age limit qualifications for most major roles (President, VP, House, and Senate). These were based upon the founders opinions on roughly when people might be mature/experienced enough to do the job well, but realistically there are almost certainly plenty of people under the age threshold who are more mature and experienced than some of the people we’ve elected from above that threshold. It’s an imperfect system, but also a reasonable one based on our founders understanding of human nature.
- As we’ve witnessed with the Biden administration and are likely actively witnessing with the Trump administration2, there’s a high risk of mortality and severe cognitive decline in this timeframe. While there are absolutely some people who are healthy and mentally sharp well beyond this age, it’s also a time where decline can happen rapidly. And as was clear from the Biden administration, our constitutional tools for “taking the keys away from a stubborn grandparent when they think they’re still safe to drive” are limited and fraught.
- When people in power go downhill mentally, it creates a real “Weekend at Bernie’s3” sort of incentive for their team, where staffers and aides realize they can exert an outsized influence on a president or congressperson, while hiding behind that person’s popularity with their voters.
In a country with approximately 125 million citizens in the 35-75 year old age group, I really don’t see a strong need to include people in an age group with high risks for mortality and mental health decline in the candidate pool. The risks are high, and the payoff is unclear. Almost every congressperson or executive we’ve had over those age limits kind of makes my point. Of the original founders, only Benjamin Franklin would’ve been excluded by this suggested rule, and frankly, I think he was self-aware enough to admit that serving as an executive at his age and health would have been a horrible idea. It might be worth including some sort of “exception” mechanism, like a Senate vote with a high threshold (say 65%) to allow someone a waiver if they have broad enough bipartisan support, in case we’re ever lucky enough to get someone of Franklin’s caliber again.
Also, while I’ve seen some argue that the health/mental acuity issues should be handled via some sort of test, rather than a blanket age cap, my worry is that is way too subjective and gameable. And once someone is in a position of power, it’s almost always harder to remove them if it starts becoming obvious that there’s something wrong. It’s just seems a lot wiser to set a reasonable age limit, and not have to deal with the messiness of having to decide things each time, on a case-by-case basis.
If technology allows human health outcomes to shift noticeably over the coming decades, where we no longer have the huge risk of health or cognitive decline issues around this age group, the number can be revisited in future amendments.
Putting Teeth Back Into Impeachment
The impeachment process, as it is currently implemented, isn’t very effective. At least for the most powerful positions in the US government. Which is kind of broken. The executive branch regularly usurps powers explicitly granted under the constitution to Congress, especially on things liked dragging the country into undeclared wars, but Presidents and executive officers know there is almost no chance of successful impeachment and removal of executive officers under the current process4.
I think one change could restore impeachment to something that has a real threat of removing an executive officer who crosses the line: making the impeachment removal vote in the Senate be handled via secret ballot5, and either getting rid of the mechanism for forcing the vote to be public, or significantly raising the threshold from 20% to say 40-50%.
The rationale for this suggested change should be fairly obvious. There’s a reason why the votes of individual jurors are almost never public record information, whether for criminal trials, military courts martial, etc. In fact, in some high-profile cases, such as for organized crime, the attorneys don’t even know the names or personal information of the jurors. All of this is to preserve the independence of the jurors. Because it’s pretty obvious that if the jurors individual votes were public record, it would be extremely easy to influence them to vote in specific ways, using threats or bribery.
Keeping the votes for at least the Senate impeachment removal process by secret ballot, and forbidding Senators from disclosing their votes after the fact would go a long way towards preserving independence by making both bribery and threats significantly harder to carry out. It is worth noting that impeachment removal would still require a 2/3 vote in the Senate, which given the nearly balanced power of the two major parties would still require convincing roughly 1/4-1/3 of the Senators of the accused executive officer’s party that they should be removed from office. And that’s assuming that all of the Senators of the opposite party honestly agree that the charges are legitimate, when free of outside pressure from their party.
I know that generally speaking, most legislative action should be public-record, so legislators can be held accountable by the people they represent. But there’s a reason why almost no other jury system has jury votes public record, and when functioning in a jury role for impeachment removal hearings, I think it would be wise to follow what has worked so well in literally almost everywhere else in the judicial world, by keeping Senators in their juror role independent via secret ballots.
A Speaker Truly of the House
I’m not sure if Congress has ever been highly functional6, but the last twenty years have seen Congressional dysfunction reach new lows. Our country has real problems like spiraling debt, an imperial presidency usurping congressional authority7, the rise of authoritarian peer adversaries, rapidly changing technology, etc., and we really need to have a Congress that functions at least a little. My suggestion for a constitutional reform to help Congress function better is to change how the Speaker of the House is elected.
The Constitution doesn’t currently say very much at all about how the Speaker of the House is elected, just that they should be chosen by the members of the House. My next amendment recommendation would be to require the Speaker of the House to be elected by at least 60% of the representatives in the House, not just a bare majority.
Why on earth would I suggest changing the threshold like that?
- With how evenly balanced the two major parties have been, control of the House often comes down to only a handful of votes, meaning that the extreme wings of both parties often hold outsized power over their caucus. But neither party has held 60% of the House in over 60 years, meaning that under this rule, a Speaker could only be selected by including at least some members of the minority party. Since you already have to court at least a few moderate members of the other party, it becomes easier to get a stable support point by ignoring your party’s extreme fringe, and focusing on the majority of your party and the most moderate members of the opposing party.
- Under a Senate that continues to operate with the filibuster8, it’s really hard for legislation to pass both chambers of Congress without some bipartisan support anyway, so having a Speaker that represents 60% of the House increases the odds of not having party-line House bills that have almost zero chance of passing in the Senate9.
- A Speaker that represents 60% of the House also likely wouldn’t be just representing a single party, negotiating directly with the President/Senate Majority Leader and sidelining most of the rest of the Congress. That could help convert congressional roles back to being legislators, rather than mostly being a performative position. That might attract people better talented at finding acceptable compromises and workable solutions.
- The Speaker of the House sets the agenda for which bills are considered for vote. For the past few decades, both parties have run things under something called the Hastert Rule, where only legislation supported by a majority of the majority party is even considered. Under a Speaker that represented 60% of the House. Meaning that something that has significant but not majority support in the majority party, and strong support in the minority party can only really be considered if they force the Speaker’s hand using a discharge petition. In a House overseen by a 60% Speaker, I think you’re likely going to see more bipartisan bills put up for consideration.
- A 60% Speaker is also less likely to support and enable politically-driven investigations and impeachments as a Speaker who is in thrall to their party’s extremists. Similarly, a 60% Speaker is less likely to obstruct investigations and impeachment inquiries to protect an administration that happens to be aligned with the House’s current majority party.
- The Speaker of the House is the second in line for the Presidency, after the Vice President. A 60% Speaker is a far less scary proposition than one who only got elected by appeasing the extremist wing of his or her own party.
- The Speaker of the House plays a major role in assigning committees. A 60% Speaker is less likely to give away committee roles to unqualified extremists from their own party, and is more likely to pull people from committees if they’re being incompetent.
Having a majority still confers real benefits in voting on legislation and amendments, but by shifting the agenda from a strongly partisan to a more bipartisan Speaker, I think a lot of the dysfunction of the last 30 years might start to go away, and we might start attracting real legislative talent again. The challenges our government faces at this point requires a more competent and functional Congress, and having a Speaker that has to represent more than the bare majority in the House could go a long way towards making that happen10.
Shutting Down the Endless Government Shutdowns
Under the current legislative rules, if the appropriations bill for an agency, or a continuing resolution11, isn’t passed by the end of the fiscal year, that agency is shutdown until either an appropriations bill or a continuing resolution is passed. But a shutdown doesn’t have to be the default situation if an appropriations bill isn’t passed on time.
My fourth suggestion for a new constitutional amendment would be to change how appropriations are handled, so that a continuing resolution is the automatic default if a new appropriation isn’t passed. To make it mildly painful to not pass an appropriations bill, it could be a continuing resolution with an across-the-board 2-5% decrease from the previous year’s funding.
Most governments throughout the world are setup under a similar approach, where a failure to pass a new budget doesn’t result in a shutdown, it just results in the equivalence of a continuing resolution. US government shutdowns have become an increasingly frequent example of US government dysfunction. They almost never result in truly positive change for either party, rarely result in increased fiscal discipline, often result in passing huge poorly-scrutinized omnibus appropriations or year-long CRs, and frankly make life miserable for the entire population for little lasting gain. Admittedly shutdowns would be far less likely if the previous reform was enacted, but I think it’s a tool that should be removed from the Congressional toolbox, and burned.
One other potential check on appropriators who can’t come up with a passable budget would be a “three-strikes rule” for appropriators. Each time your appropriations committee fails to pass a budget on time, all members of the committee get a strike on their record. After three strikes, you’re no longer eligible to serve on the appropriations committee. Seats on appropriations committees are some of the most coveted powers in Congress. If members of the committee are incapable of doing their job, they shouldn’t be able to keep the perk of a cushy appropriations committee seat.
No Self-Suing
It’s always interesting looking at rules. You almost always find ones that make you really wonder “what idiot did something that dumb enough to require adding that rule?” This is probably one of those rules.
The President runs the executive branch, which includes overseeing the Department of Justice. If someone sues the Federal Government, the Department of Justice provides the attorneys who defend the government against the suit. President Trump and several of his former employees have recently sued the Federal Government for massive amounts of money in damages. If you can’t see the massive conflict of interest in being able to sue an organization that you also run, and whose defense attorneys you can order to settle the suit in your favor, I’m not sure what to tell you.
My fifth suggested Constitutional amendment would be a strict ban on the ability of an executive branch officer (and especially the President and Vice President) to sue the government while the administration that he or she is/was part of is still in power.
The President and Vice President are currently protected from civil and criminal suits while in office, it’s a fair trade that they shouldn’t be allowed to sue their own government while in office.
Nobody Above the Law
My final recommended constitutional amendment deals with the sticky issue of how to balance the importance of preventing purely political prosecution of former executive branch officers, while at the same time allowing them to be held accountable for their actions. Right now, we have the ironic situation, where some of the most powerful people in the world are held to much lower legal standards than almost anyone else in the country. Knowing you can be held accountable for lawbreaking is one of the keys to deterring law-breaking. But right now, a former President can hide behind the claim that they’re just being prosecuted for political reasons.
My suggestion for how to balance those two competing objectives is to provide a mechanism for allowing criminal and civil prosecution of former executive branch officers upon secret ballot vote in the Senate of at least say 60 or 65% of the Senate.
Here are some thoughts on this idea:
- Going back to previous points — given the partisan makeup of the Senate, this would almost always require getting at least a few votes from members of the accused officer’s own party. This both should help prevent obviously political prosecutions, while also giving bipartisan legitimacy to prosecutions that Senators acting without external pressure agree are legitimate.
- If the Senate votes to allow the prosecution, this should automatically eliminates the ability of the executive officer to request that the judge dismiss the charges based on executive privilege.
- The vote to allow the prosecution does not decide the result of the legal action. The former officer would still be entitled to all of the legal protections and due process of any other citizen. It would be up to the judge and jury to decide to convict and how to sentence. The Senate vote just clears the way for the trial to occur.
- In the case where a criminal case is brought against a former executive while that person’s party is in power, it might be worth giving the Senate the option, also requiring a similar 60-65% secret ballot vote to assign an independent prosecutor who does not answer to the current administration to prosecute the case. Because this person would require approval of a similar 60-65% of the Senate, that should force them to be someone with bipartisan support.
I think a mechanism like this might provide a way to allow legitimate prosecutions to happen, to hold previous executives accountable for criminal behavior, while still preventing blatantly political prosecutions from happening.
Conclusions
I’d love to hear what people think of these amendments, but I think they could go a long way towards making our government more functional, more just, and more likely to last as a functioning country to see its 300th birthday. Feel free to leave comments if you see flaws in my suggestions, have improvements you could suggest, or if you think any of these ideas have any chance of getting proposed and enacted.
