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?

Constitutional rewrite
©2013 Richard A. Bloom
Add to Briefcase
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.

President or Parliament? National Journal

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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