A How-To Guide to Blowing Up the Constitution

With America paralyzed by government gridlock, maybe it’s time to admit that our political system doesn’t work anymore. What if we start over?

©2013 Richard A. Bloom
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Alex Seitz Wald
Oct. 31, 2013, 5 p.m.

Amer­ica, we’ve got some bad news: Our Con­sti­tu­tion isn’t go­ing to make it. It’s had 224 years of com­mend­able, of­ten glor­i­ous ser­vice, but there’s a time for everything, and the gov­ern­ment shut­down and per­man­ent-crisis gov­ernance sig­nal that it’s time to think about mov­ing on. “No so­ci­ety can make a per­petu­al con­sti­tu­tion,” Thomas Jef­fer­son wrote to James Madis­on in 1789, the year ours took ef­fect. “The earth be­longs al­ways to the liv­ing gen­er­a­tion and not to the dead.”¦ Every con­sti­tu­tion, then, and every law, nat­ur­ally ex­pires at the end of 19 years.” By that cal­cu­la­tion, we’re more than two cen­tur­ies be­hind sched­ule for a long, hard look at our most sac­red of cows. And what it re­veals isn’t pretty.

If men (and, fi­nally, wo­men) as wise as Jef­fer­son and Madis­on set about the task of writ­ing a con­sti­tu­tion in 2013, it would look little like the one we have now. Amer­ic­ans today can’t agree on any­thing about Wash­ing­ton ex­cept that they want to “blow up the place,” in the words of former Re­pub­lic­an Sen. George Voinovich as he left Con­gress, and maybe that thought isn’t so rad­ic­al.

Clock­ing in at some 4,500 words — about the same length as the screen­play for an epis­ode of Two and a Half Men — and without ser­i­ous modi­fic­a­tion since 18-year-olds got the vote in 1971, the Con­sti­tu­tion simply isn’t cut out for 21st-cen­tury gov­ernance. It’s full of holes, only some of which have been patched; it guar­an­tees grid­lock; and it’s vir­tu­ally im­possible to change. “It gets close to a fail­ing grade in terms of 21st-cen­tury no­tions on demo­crat­ic the­ory,” says Uni­versity of Texas law pro­fess­or San­ford Lev­in­son, part of the grow­ing cadre of leg­al schol­ars who say the time has come for a new con­sti­tu­tion­al con­ven­tion.

Put simply, we’ve learned a lot since 1787. What was for the Founders a kind of provid­en­tial rev­el­a­tion — design­ing, from scratch, a writ­ten charter and demo­crat­ic sys­tem at a time when the en­tire his­tory of life on this plan­et con­tained scant ex­amples of either — has been worked in­to sci­ence. More than 700 con­sti­tu­tions have been com­posed since World War II alone, and oth­er coun­tries have solved the very prob­lems that cripple us today. It seems un-Amer­ic­an to look abroad for ways to change our sac­red text, but the world’s na­tions copied us, so why not learn from them?

Su­preme Court Justice Ruth Bader Gins­burg was pil­lor­ied when she told Egyp­tian re­volu­tion­ar­ies last year that she “would not look to the U.S. Con­sti­tu­tion, if I were draft­ing a con­sti­tu­tion in the year 2012.” But her sen­ti­ment is taken for gran­ted by any­one who has ac­tu­ally tried to write a con­sti­tu­tion since politi­cians stopped wear­ing powdered wigs. “Our Con­sti­tu­tion really has been a steady force guid­ing us and has been per­haps the most stable in the world,” says Louis Auc­oin, who has helped draft con­sti­tu­tions in Cam­bod­ia, East Timor, Kosovo, Rwanda, and else­where while work­ing with the U.N. and oth­er groups. “But the dis­ad­vant­age to the sta­bil­ity is that it’s old, and there are things that more-mod­ern con­sti­tu­tions ad­dress more clearly.”

Al­most nobody uses the U.S. Con­sti­tu­tion as a mod­el — not even Amer­ic­ans. When 24 mil­it­ary of­ficers and ci­vil­ians were giv­en a single week to craft a con­sti­tu­tion for oc­cu­pied Ja­pan in 1946, they turned to Eng­land. The West­min­ster-style par­lia­ment they in­stalled in Tokyo, like its Brit­ish for­bear­er, has two houses. But un­like Con­gress, one is clearly more power­ful than the oth­er and can over­ride the less power­ful one dur­ing an im­passe.

The story was largely the same in de­feated Nazi Ger­many, and more re­cently in Ir­aq and Afgh­anistan, which all emerged from Amer­ic­an oc­cu­pa­tion with con­sti­tu­tions that look little like the one Madis­on and the oth­er framers wrote. They have the same demo­crat­ic val­ues, sure, but dif­fer­ent ways of real­iz­ing them. Ac­cord­ing to re­search­ers who ana­lyzed all 729 con­sti­tu­tions ad­op­ted between 1946 and 2006, the U.S. Con­sti­tu­tion is rarely used as a mod­el. What’s more, “the Amer­ic­an ex­ample is be­ing re­jec­ted to an even great­er ex­tent by Amer­ica’s al­lies than by the glob­al com­munity at large,” write Dav­id Law of Wash­ing­ton Uni­versity and Mila Ver­steeg of the Uni­versity of Vir­gin­ia.

That’s a not a fluke. The Amer­ic­an sys­tem was de­signed with plenty of checks and bal­ances, but the Founders as­sumed the elites elec­ted to Con­gress would sort things out. They didn’t plan for the polit­ic­al parties that emerged al­most im­me­di­ately after rat­i­fic­a­tion, and they cer­tainly didn’t plan for Ted Cruz. And fac­tion­al­ism isn’t the only prob­lem. Bel­gi­um, a coun­try whose eth­nic di­vi­sions make our par­tis­an spar­ring look like a thumb war, was un­able to form a gov­ern­ing co­ali­tion for 589 days in 2010 and 2011. Nev­er­the­less, the gov­ern­ment stayed open and ful­filled its du­ties al­most without in­ter­rup­tion, thanks to a smarter in­sti­tu­tion­al ar­range­ment.

As the famed Span­ish polit­ic­al sci­ent­ist Juan Linz wrote in an in­flu­en­tial 1990 es­say, dys­func­tion, trend­ing to­ward con­sti­tu­tion­al break­down, is baked in­to our DNA. Any sys­tem that gives equally strong claims of demo­crat­ic le­git­im­acy to both the le­gis­lature and the pres­id­ent, while also al­low­ing each to be con­trolled by people with fun­da­ment­ally dif­fer­ent agen­das, is doomed to fail. Amer­ica has muddled through thus far by com­prom­ise, but what hap­pens when the sides no longer wish to com­prom­ise? “No demo­crat­ic prin­ciple ex­ists to re­solve dis­putes between the ex­ec­ut­ive and the le­gis­lature about which of the two ac­tu­ally rep­res­ents the will of the people,” Linz wrote.

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“There are about 30 coun­tries, mostly in Lat­in Amer­ica, that have ad­op­ted Amer­ic­an-style sys­tems. All of them, without ex­cep­tion, have suc­cumbed to the Lin­zi­an night­mare at one time or an­oth­er, of­ten re­peatedly,” ac­cord­ing to Yale con­sti­tu­tion­al law pro­fess­or Bruce Ack­er­man, who calls for a trans­ition to a par­lia­ment­ary sys­tem. By “Lin­zi­an night­mare,” Ack­er­man means con­sti­tu­tion­al crisis — your full range of polit­ic­al vi­ol­ence, re­volu­tion, coup, and worse. But well short of war, you can end up in a state of “crisis gov­ernance,” he writes. “Pres­id­ent and house may merely in­dulge a taste for end­less back­bit­ing, mu­tu­al re­crim­in­a­tion, and par­tis­an dead­lock. Worse yet, the con­tend­ing powers may use the con­sti­tu­tion­al tools at their dis­pos­al to make life miser­able for each oth­er: The house will har­ass the ex­ec­ut­ive, and the pres­id­ent will en­gage in uni­lat­er­al ac­tion whenev­er he can get away with it.” He wrote that al­most a dec­ade and a half ago, long be­fore any­one had heard of Barack Obama, let alone the tea party.

You can blame today’s act­ors all you want, but they’re just the product of the sys­tem, and hon­estly it’s a won­der we’ve sur­vived this long: The pres­id­en­tial elec­tion of 1800, a nasty cam­paign of smears and hy­per-par­tis­an at­tacks just a dec­ade after rat­i­fic­a­tion, caused a dead­lock in the House over wheth­er John Adams or Thomas Jef­fer­son should be pres­id­ent. The im­passe grew so tense that state mi­li­tias op­posed to Adams’s Fed­er­al­ist Party pre­pared to march on Wash­ing­ton be­fore law­makers fi­nally elec­ted Jef­fer­son on the 36th vote in the House. It’s a near mir­acle we haven’t seen more par­tis­an vi­ol­ence, but it seems like tempt­ing fate to stick with the status quo for much longer.  

How would a par­lia­ment­ary sys­tem handle a shut­down? It wouldn’t have one. In Canada a few years ago, around the same time Wash­ing­ton was gripped in yet an­oth­er debt-ceil­ing crisis, a budget im­passe in Ot­t­awa led to new elec­tions, where the parties fought to win over voters to their fisc­al plan. One side won, then en­acted its plan — prob­lem solved. Most par­lia­ment­ary sys­tems, which uni­fy the ex­ec­ut­ive and le­gis­lat­ive branches, have this sort of fail-safe mech­an­ism. If a budget or oth­er must-pass bill can’t get passed, or a prime min­is­ter can’t be chosen, then fund­ing levels are placed on auto­pi­lot and new elec­tions are called to re­solve things. The people de­cide.

Arend Lijphart is a polit­ic­al sci­ent­ist who has spent much of his ca­reer try­ing to an­swer the fun­da­ment­al ques­tion, “What works best?” and he thinks he knows the an­swer. “Demo­cra­cies work best if they are con­sensus in­stead of ma­jor­it­ari­an demo­cra­cies. The most im­port­ant con­sti­tu­tion­al pro­vi­sions that help in this dir­ec­tion is to have a par­lia­ment­ary sys­tem and elec­tions by [pro­por­tion­al rep­res­ent­a­tion]. The U.S. is the op­pos­ite sys­tem, with a pres­id­en­tial sys­tem and plur­al­ity single-mem­ber-dis­trict elec­tions,” he said an email, draw­ing on com­plex quant­it­at­ive ana­lys­is he’s done to com­pare eco­nom­ic and polit­ic­al out­comes across dozens of demo­crat­ic coun­tries with dif­fer­ent sys­tems.

If he had to pick any coun­try whose sys­tem we might like to try on for size, he’d pick Ger­many. “Some as­pects of it do need to change, of course,” he says. Yet it’s a nice bicam­er­al fed­er­al sys­tem for a large coun­try, like ours, but it has a pro­por­tion­al rep­res­ent­a­tion par­lia­ment­ary sys­tem.

Still, lat­ter-day framers prob­ably won’t be able to start from scratch. So how might they re­mod­el?

Take the Sen­ate. What star­ted as a com­prom­ise to pre­serve states’ rights lost even that pre­text with the rat­i­fic­a­tion of the 17th Amend­ment, which gave the people, and not state le­gis­latures, the right to elect their rep­res­ent­at­ives in the up­per cham­ber. Today, the Sen­ate is an un­demo­crat­ic rel­ic where 41 sen­at­ors, rep­res­ent­ing just 11 per­cent of the na­tion’s pop­u­la­tion, can use the fili­buster to block al­most any­thing and bring gov­ern­ment to its knees. A single voter in Wyom­ing, a state with a mere 600,000 people, has the equi­val­ent rep­res­ent­a­tion of 66 Cali­for­ni­ans un­for­tu­nate enough to live in a place with 38 mil­lion oth­er people. The two-sen­at­or al­lot­ment to each state also makes it es­sen­tially im­possible to change the makeup of the states or ad­mit new ones like the Dis­trict of Columbia. And the House, of course, isn’t a more at­tract­ive al­tern­at­ive.

Larry Sabato, the ubi­quit­ous and mild-mannered polit­ic­al pro­gnost­ic­at­or by day, is a rad­ic­al con­sti­tu­tion-re­writer by night. In his 2008 book, A More Per­fect Con­sti­tu­tion: Why the Con­sti­tu­tion Must Be Re­vised, Sabato of­fers a num­ber of prag­mat­ic ideas: The Sen­ate, he says, should be ex­pan­ded to give more pop­u­lous states at least a bit more rep­res­ent­a­tion, and it should also in­clude “na­tion­al sen­at­ors” — all former pres­id­ents and vice pres­id­ents, maybe oth­ers — whose job it is to guard na­tion­al in­terests over pa­ro­chi­al ones. Sabato’s plan would also double the size of the House (to make rep­res­ent­at­ives closer to the people) and en­forces a non­par­tis­an re­dis­trict­ing pro­cess to end ger­ry­man­der­ing. Elec­tions for pres­id­ent, Sen­ate, and House, in Sabato’s vis­ion, are res­ched­uled to co­in­cide more of­ten, while pres­id­ents would serve a single, six-year term (the idea is to make their gov­ern­ing less polit­ic­al, while giv­ing them enough time to im­ple­ment change).

Re­gard­less of how you feel about Cit­izens United, something needs to be done about cam­paign fin­ance. No one thinks law­makers should spend sev­er­al hours every day rais­ing money (some es­tim­ates say law­makers spend 25 per­cent to 50 per­cent of their time “di­al­ing for dol­lars”). No one prefers that a tiny frac­tion of wealthy Amer­ic­ans provide the vast ma­jor­ity of the money needed to sup­ply our demo­cracy with lead­ers. (Only about one-half of 1 per­cent of Amer­ic­ans have giv­en more than $200 to a can­did­ate, PAC, or party, while just un­der 10 per­cent re­port donat­ing at all.)

Lawrence Lessig, the icon­o­clast­ic pro­fess­or who is now at Har­vard, traces the rise of hy­per-par­tis­an­ship to the emer­gence of the per­petu­al cam­paign and the con­stant need for money. “Since the end of ear­marks, the best way to raise money is to in­crease par­tis­an­ship. Look at the shut­down. It cost the eco­nomy bil­lions of dol­lars but raised mil­lions of dol­lars for both Demo­crats and Re­pub­lic­ans,” he says. At some point, this money chase has to take a psy­cho­lo­gic­al toll. How do you spend all morn­ing at­tack­ing your op­pon­ent and then make a deal with them in the af­ter­noon? In­stead, Lessig, along with fel­low Har­vard law pro­fess­or Laurence Tribe and many oth­ers, pro­poses a bot­tom-up form of pub­lic fin­an­cing where voters get a vouch­er of, say, $50 off their taxes, which they can use to donate to can­did­ates.

Then there’s just ba­sic house­keep­ing. Any con­sti­tu­tion­al law­yer can point out the places that need work: How much au­thor­ity should pres­id­ents have in the case of a na­tion­al emer­gency? Can they lock up Ja­pan­ese-Amer­ic­ans, as FDR did? Do in­di­vidu­als have a right to pri­vacy in an age of high-tech snoop­ing by the Na­tion­al Se­cur­ity Agency? How is power really di­vided between the states and the fed­er­al gov­ern­ment?

The list of ques­tions goes on, but the Con­sti­tu­tion doesn’t an­swer them, so judges have had to fill in the blanks. Where mod­ern con­sti­tu­tions in oth­er na­tions get spe­cif­ic, we get ju­di­cial act­iv­ism. Some­times it works, but it’s not an ap­proach without ser­i­ous draw­backs. Take civil rights, which the courts have done a de­cent job of pro­tect­ing — only after re­vers­ing earli­er mis­takes. And there’s the­or­et­ic­ally noth­ing to stop judges from flip-flop­ping back to their pre-Brown v. Board of Edu­ca­tion jur­is­pru­dence.

“A lot of people have con­nip­tions” when you start talk­ing about chan­ging the Con­sti­tu­tion, ac­know­ledges Nick Dra­ni­as, a con­sti­tu­tion­al law­yer at the con­ser­vat­ive Gold­wa­ter In­sti­tute in Ari­zona. “But the idea that the Founders thought the Con­sti­tu­tion would be a per­fect and un­chan­ging doc­u­ment is simply not true.” The prob­lem is that they didn’t real­ize how dif­fi­cult they’d made it to ac­tu­ally change things. The U.S. Con­sti­tu­tion is the world’s hard­est to amend, ac­cord­ing to Lev­in­son. (Yugoslavia used to hold that dis­tinc­tion; per­haps not co­in­cid­ent­ally, Yugoslavia no longer ex­ists.)

Sur­pris­ingly, con­sid­er­ing their rev­er­ence of the Founders, con­ser­vat­ives have led the way in re­ima­gin­ing the Con­sti­tu­tion, so they can add an amend­ment to cre­ate a right to life after Roe v. Wade or to rein in the fed­er­al gov­ern­ment with a bal­anced-budget amend­ment. Oth­ers have called for more hol­ist­ic changes, to em­power states vis-à-vis Wash­ing­ton. But a full-on con­sti­tu­tion­al con­ven­tion goes too far, says Dra­ni­as, and would in­ev­it­ably des­cend in­to chaos (just ima­gine deal­ing with abor­tion, for in­stance, or gun rights).

In­stead, Dra­ni­as and a di­verse band of com­pat­ri­ots — in­clud­ing acerbic ra­dio host Mark Lev­in, Lessig, and Har­old R. DeMoss, a seni­or judge on the U.S. Court of Ap­peals for the Fifth Cir­cuit — ad­voc­ate a con­ven­tion to pro­pose amend­ments to the Con­sti­tu­tion, as laid out in Art­icle V, as op­posed to start­ing from scratch. “The vehicle is not ideo­lo­gic­al — you put on whatever ideo­logy you want,” Dra­ni­as says. He wants a bal­anced-budget amend­ment; Lessig wants cam­paign fin­ance re­form; someone else might want to change the Sen­ate. The states can call a con­ven­tion to pro­pose amend­ments if three-fourths (38) are in fa­vor. Con­gress would still need to ap­prove the changes, but the pro­cess puts the states, and not Wash­ing­ton, in charge.

They join a long line of fel­low trav­el­ers from Re­pub­lic­an Sen. Ever­ett Dirk­sen, who called for a second con­sti­tu­tion­al con­ven­tion throughout his long polit­ic­al ca­reer, to Wil­li­am Safire, who wrote in 1987 that he wanted to “be a del­eg­ate to the next Con­sti­tu­tion­al Con­ven­tion (Con Con II).”

If Amer­ic­ans man­aged to con­voke a con­sti­tu­tion­al con­ven­tion, they could draw on hun­dreds of pos­sible tweaks with text already writ­ten, avail­able on­line thanks to the Google-fun­ded Com­par­at­ive Con­sti­tu­tions Pro­ject. After hun­dreds of tries, we (hu­mans) have got­ten so good at char­ter­ing gov­ern­ments that we’ve de­veloped a set of best prac­tices. Our Con­sti­tu­tion vi­ol­ates many of them.

For one, the Pub­lic In­ter­na­tion­al Law & Policy Group, a pro-bono law firm that ad­vises trans­ition­ing coun­tries on the rule of law, de­veloped a 222-page U.N.-en­dorsed “Post-Con­flict Con­sti­tu­tion Drafter’s Hand­book” that prac­tic­ally of­fers con­sti­tu­tion-writ­ing by the word game Mad Libs. It comes com­plete with sample lan­guage (“The cap­it­al city of [State] is [Cap­it­al City]”), in­struc­tions on how to write a pre­amble, and a ver­it­able choose-your-own ad­ven­ture story of demo­crat­ic forms of gov­ernance: Would you like to be a fed­er­al state, where power flows from the re­gions to the cap­it­al, or a unity state, where all power de­rives from the seat of gov­ern­ment? Re­li­gious or sec­u­lar? Demo­cracy is avail­able off the shelf.

As we’ve learned what works and what doesn’t, con­sti­tu­tions have star­ted to look and more alike. Not sur­pris­ingly, the U.S. has one of the world’s least gen­er­ic con­sti­tu­tions. (Dji­bouti has the most.) Amer­ic­an ex­cep­tion­al­ism is a fine thing, but there are still things we can learn from oth­er places. “The Founders had only im­pres­sion­ist­ic, some­times wrong, as­sump­tions about hu­man be­ha­vi­or,” says Ry­an Enos, a polit­ic­al sci­ent­ist at Har­vard. “We know a great deal more now, due to ad­vances in psy­cho­logy and oth­er fields, about the nature of co­oper­a­tion, group iden­tit­ies, in­cent­ives, et cet­era.”

Take elec­tions, the most ba­sic func­tion of any demo­cracy. We’ve been do­ing them the same way since the Pro­gress­ive era, but in­stant-run­off vot­ing has be­come in­creas­ingly pop­u­lar be­cause it al­lows voters to rank mul­tiple choices in­stead of pick­ing just one. Aus­tralia, In­dia, Ire­land, and dozens of oth­er coun­tries have ad­op­ted it, as has San Fran­cisco and the Academy Awards. IRV, as it’s known, would make room for new parties by al­low­ing people to vote for a third-party can­did­ate first without “wast­ing” it, and then for a main­stream can­did­ate second. This change would force politi­cians to com­pete for every­one’s votes, be­cause they would need non-first-choice votes too. Al­tern­ately, we could also elim­in­ate party primar­ies, as Cali­for­nia did re­cently, and re­place them with a non­par­tis­an run­off between the top two vote-get­ters. These in­nov­a­tions would help re­duce one-party mono­poly and avoid the rad­ic­al­iz­ing ef­fects of par­tis­an primar­ies.

Oth­er thinkers are even fur­ther out on the cut­ting-edge of demo­cracy. Ger­many’s Pir­ate Party ad­voc­ates something called “li­quid demo­cracy.” A cross between New Eng­land-style town meet­ings and Face­book, this mod­el of del­eg­at­ive demo­cracy lever­ages so­cial re­la­tion­ships and ex­pert­ise on an open-source soft­ware plat­form for col­lab­or­at­ive de­cision-mak­ing. The pro­cess is a bit com­plic­ated, but es­sen­tially cit­izens can par­ti­cip­ate dir­ectly, say, by pro­pos­ing le­gis­la­tion. They can also del­eg­ate their vote to a proxy they trust, who can then in turn del­eg­ate her vote and the ori­gin­al vote to a third proxy, and so on down the line un­til you get something that re­sembles a le­gis­lature.

For techno-evan­gel­ists, this is the fu­ture. Clay Shirky, a fu­tur­ist at New York Uni­versity, ad­voc­ated for a “dis­trib­uted ver­sion con­trol demo­cracy” in a re­cent TED talk. The New York state Le­gis­lature is already ex­per­i­ment­ing with this on its Open­Le­gis­la­tion plat­form, while the Open­Gov Found­a­tion, a non­profit or­gan­iz­a­tion cofoun­ded by Rep. Dar­rell Issa, R-Cal­if., is do­ing something sim­il­ar on the fed­er­al level, al­low­ing any­one to com­ment on and an­not­ate le­gis­la­tion pending be­fore the House.

These tools are still in their in­fancy, but scaled up they could change what demo­cracy looks like in ways we’re only just be­gin­ning to ima­gine. At the ex­treme, we could the­or­et­ic­ally have smart­phone-en­abled dir­ect demo­cracy, where the pub­lic could vote dir­ectly on le­gis­la­tion and where Con­gress would al­most be ir­rel­ev­ant. At the same time, Lore­lei Kelly of the New Amer­ica Found­a­tion and the Smart Con­gress pro­ject warns against “mob sourcing.” One glance at what’s trend­ing on the White House’s “We the People” pe­ti­tion plat­form — e.g., “In­vest­ig­ate Jimmy Kim­mel Kid’s Table Gov­ern­ment Shut­down Show on ABC Net­work” — con­firms this. In­stead, she says, we need something more like Rot­ten To­ma­toes demo­cracy. Un­like typ­ic­al crowd sourcing, the movie-re­view­ing site priv­ileges ex­pert­ise and ag­greg­ates re­views for smarter res­ults.

For a glimpse of where this is headed, turn to sci­ence fic­tion, where writers have long ex­per­i­mented with rad­ic­al new so­cial or­ders. In Im­per­i­al Earth, for in­stance, Ar­thur C. Clarke pro­poses something sure to ap­peal to the “throw-the-bums-out” crowd. The so­ci­ety in that nov­el auto­mat­ic­ally dis­qual­i­fies from of­fice any­one who wants to gov­ern and in­stead asks the pub­lic to choose lead­ers from a preselec­ted pool of can­did­ates who have been al­gorith­mic­ally chosen for lead­er­ship po­ten­tial.

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In Robert Ant­on Wilson’s Schroedinger’s Cat tri­logy, sci­ent­ist cum Pres­id­ent Eve Hub­bard turns her coun­try in­to a uto­pia by pro­mot­ing a sci­entif­ic ap­proach and of­fer­ing in­cent­ives, such as of­fer­ing X-prize-style re­wards to cit­izens who can bet­ter im­prove life. Even fur­ther down the techno-uto­pi­an rab­bit role, Robert Hein­lein’s Star­ship Troop­ers re­quires people to serve in the mil­it­ary if they want the full rights of cit­izen­ship.

One group that sounds like sci­ence fic­tion has real-world cham­pi­ons. The Sea­stead­ing In­sti­tute in San Fran­cisco wants to cre­ate float­ing cit­ies of thou­sands of people or more, at sea, bey­ond the reach of ter­restri­al gov­ern­ments, where res­id­ents can write whatever con­sti­tu­tion and laws they like in any form of gov­ern­ment they prefer. “I know that what made the U.S. great a few hun­dred years ago was that it was in­nov­at­ive and new and great,” says Ran­dolph Henck­en, the ex­ec­ut­ive dir­ect­or. “But it’s still all wrapped up in the same sys­tem that was writ­ten 240 years ago”¦. It’s old tech­no­logy.”

When the ori­gin­al con­sti­tu­tion­al con­ven­tion con­vened in May 1787, mem­bers were tasked, simply, with pro­pos­ing amend­ments to the Art­icles of Con­fed­er­a­tion. But once they got go­ing, they real­ized that the Art­icles were so flawed and they wanted to change so much that they would need to start from scratch.

What a con­ven­tion might look like is for the pub­lic to de­cide. It might, as Lev­in­son pro­poses, be pop­u­lated by cit­izens se­lec­ted by lot­tery and giv­en two years and plenty of staff and re­sources to come up with something. Or it might look like what Dra­ni­as and Lessig pro­pose, where 38 states can come to­geth­er to agree on the text of an amend­ment and then present it to Con­gress and de­mand rat­i­fic­a­tion. “The most im­port­ant thing a con­ven­tion would do is to simply jump-start and con­duct a na­tion­al con­ver­sa­tion that we’re not hav­ing,” Lev­in­son says. After all, the status quo isn’t work­ing. We badly need a more per­fect uni­on.


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