Introduction to the Progressive Constitution

When we were asked to draft the “progressive” Constitution, we recognized that the task came with baggage. Progressives’ relationship with the Constitution has long been fraught. At various points in history, progressives have loudly complained that the Constitution ratified in 1788 was designed for an agrarian society of slaveholding white males. It created sclerotic political institutions that are frightfully ill-equipped to meet the demands of a modern, global, and pluralistic society.

Further, for at least the last half century, progressives have been characterized as disdainful of the Constitution’s structural limits on government power and eager to read into its text a more expansive understanding of individual rights. On these accounts, an original vision of the Constitution as a demand for a limited federal government is framed as antithetical to a progressive vision of a government powerful enough to promote the public good while constrained by judges committed to protecting fundamental human rights.

These accounts are facile at best. At worst, they misrepresent both the Constitution itself and a progressive understanding of constitutional democracy.

With that in mind, as we embarked upon this exercise, we wanted to make clear our own view that the Constitution, as drafted in 1787, is not completely incompatible with progressive constitutionalism. Indeed, in our view, the original Constitution establishes a structure of divided government that is a necessary precondition for a constitutional democracy with robust protections for individual rights. Accordingly, we took this exercise as an opportunity to strengthen those structural protections for democratic government that we believe serve the exercise of individual rights. This draft progressive Constitution is written in the spirit of the Virginia Plan, with a recognition that debate and refinement must follow. And similar to the framers in 1787, we also are focusing on the structures of government over developing an exhaustive set of rights. We believe that embedding democracy more effectively in our Constitution will better protect rights than an explicit description of each and every right.

As progressives, we believe in democracy rather than government by judiciary, and that is why we have approached the document in this fashion. At the heart of our progressive Constitution is an accountable and inclusive political process.

But even as we have recognized that the democratic process will and should be the main determinant of policy outcomes, we have in some circumstances provided for explicit protections for equality, liberty, and democratic institutions that were not contemplated by the original document or its amendments.

 

Free and Fair Elections

There is no more important guarantee in a constitutional democracy than free, fair, and functional elections. The current Constitution is at once too vague and too specific about the electoral process. It does not explicitly guarantee the right to vote and underspecifies the conditions under which elections should be conducted, but also provides for presidential election through a misguided Electoral College.

A progressive Constitution would provide a general right of Americans to vote in federal, state, and local elections (including without regard to carceral condition). This includes voting rights and rights of congressional representation for residents of federal territories (including the District of Columbia, which would become a state). Voter qualifications in federal elections would be uniform and would be established by Congress. And because it is also important that voters select officeholders rather than vice versa, our Constitution would require that congressional district lines be drawn by nonpartisan commissions, a model that works successfully in several states and in many countries around the world. This approach would not preclude Congress from experimenting with forms of proportional representation or multimember districts, which are currently prohibited by federal statute.

The regulation of campaign expenditures and contributions to mitigate the disproportionate influence of wealthy and unaccountable individuals and organizations over elections should be permissible in our democracy, as it is in all others in the world. A progressive Constitution would carve such regulation out of the First Amendment’s reach provided it is reasonable and in pursuit of a legitimate objective. Of course, we continue to believe that reasonable regulation is acceptable under the current Amendment, though not as interpreted by the Court in Citizens United v. FEC.

 

Accountable and Inclusive Governing Bodies

It isn’t enough, though, to give Americans voting rights if the institutions they are voting for are themselves anti-democratic. Accordingly, our Constitution eliminates the indefensible Electoral College, replacing it with a national popular vote for President. That vote would be conducted under ranked-choice voting, which would make it easier for candidates with broad support to win the Presidency— under a Constitution for all the people, the one national office should not be held by an extreme partisan.

More significantly, our Constitution makes the U.S. Senate a more representative body. We see great value in the existing federal structure, which heightens government accountability and facilitates policy experimentation. But achieving the benefits of federalism doesn’t require the extremes of the current system, in which California has 70 times the population of Wyoming but the same number of Senators. Our Constitution therefore would reapportion the Senate, guaranteeing one senator to every state but allocating additional at large senators based on the state’s share of the national population. Were this system in operation today, there would be 126 Senators, of which California would have 13, Texas 9, and Florida 7. Twenty-two states (including D.C.) would have one Senator.

Our Constitution would also change the House of Representatives, though less radically. We would lengthen House terms from two to four years. This would decrease the constant fundraising pressure that currently hinders Members’ ability to serve their constituents. It would also move all House voting off the presidential cycle, enabling House elections to serve as a valuable lever of presidential accountability, and vice versa, without subjecting the system to avulsive changes in governance during presidential election years.

 

Providing Real Checks and Balances

The framers envisioned a constitutional system in which the different branches of government would police one another. As James Madison famously wrote, “Ambition must be made to counteract ambition.” But unfortunately, they did not foresee the rise of parties and national party discipline, which has elevated party identification over institutional loyalty and significantly undercut the efficacy of checks and balances.

To make our system better able to ensure rule of law in each branch, we have made several changes. First, we have strengthened and clarified the standard for impeachment, making it clear that the President need not commit a statutory crime but that an abuse of the public trust shall be sufficient grounds for removal. We have also changed the majority required for impeachment and removal to three-fifths in each House, to forestall partisan impeachments while ensuring that in cases of real abuses of power, the president can in fact be removed.

As a necessary complement, Congress’s oversight authority over the executive branch must be made more explicit to ensure it can effectively police wrongdoing in program administration or otherwise, and as an integral part of its legislative power, which requires information and testimony from administration officials. And to ensure that the law enforcement power of the federal government is not abused for partisan gain, the Attorney General must receive the votes of two-thirds of Senators to be confirmed, ensuring that they have the trust of a supermajority of Senators.

Our system also has been shown to be deficient in protecting against conflicts of interest and self-dealing by government officials. This draft therefore makes all government officials subject to the emoluments clauses.

 

Ensuring Effective Governance

Over the course of our history, Congress has become increasingly incapable of legislating to address national problems. While there have been times of great legislative accomplishment, increasingly, extreme partisanship has made this important work extremely difficult. For that reason, this draft clarifies that Congress shall have the authority to legislate for the general welfare when such action is necessary to address problems that are national in scope and difficult or impossible to address through state or local action. Moreover, with the complexity of issues facing our nation and the need for expertise, there must be no question that Congress has the power to establish independent agencies, which may or may not be subject to executive branch control. And because Congress should be empowered to delegate partially to the executive branch, this draft permits Congress to implement a legislative veto.

Lastly, in order to ensure a less partisan judiciary that is and is perceived as neutral and unbiased, this draft dispenses with life tenure for federal judges in favor of single 18-year terms. Eliminating life tenure would accord with the approach taken by all other democracies. A replacement for a Supreme Court justice who doesn’t serve a full 18-year term may only serve out the remainder of the 18-year term, so that these appointments can be regularized at intervals of two per presidency. Our draft also bars electing state judges.

 

Updating the Constitution

The current process of constitutional amendment is both too difficult and gives outsized power to land rather than people. Accordingly, our Constitution enables amendments to be proposed not just by two- thirds of members of each House (or two thirds of states) but by Members of each House (or states, for constitutional conventions) representing two-thirds of the U.S population. Likewise, ratification may be effected by three-fourths of the states (as now) or by states representing three-fourths of the population. The new ratification number would not apply to amendments altering suffrage in the Senate, though changes to suffrage would be permitted with agreement of three-fourths of the states.

 

Establishing Real Equality

Although the Declaration of Independence asserted that “all men are created equal,” the Constitution, as we know, made no such guarantees. Indeed, the original text made specific accommodations for the institution of slavery. The question of equality would not surface in constitutional text until the postbellum Reconstruction Amendments abolished slavery and sought to include newly freed African American men into the polity. But while the Fourteenth Amendment guaranteed “equal protection of the laws,” it soon became clear that these guarantees did not extend to all citizens.

In time, legislatures and courts would try to address the inadequacies of the Reconstruction Amendments’ efforts to ensure equality to all citizens. The Nineteenth Amendment, by its terms, extended the franchise to women, and later, through an amalgam of statutory protections and constitutional decisions, women would enjoy some measure of legal protection against sex-based discrimination. Other underrepresented groups, like LGBTQ+ persons, would also have to seek equality though legislative fiat and judicial interpretation.

Recognizing the limits of both the original Constitution and its amendments, our goal was to enshrine, as a matter of constitutional text, the equality gains that have been won through legislation and court decisions. Accordingly, our vision of the Constitution explicitly contemplates women as equal citizens. Having redrafted the Fifteenth Amendment (now re-numbered as the Fourteenth Amendment) to ensure women’s right to vote, we reimagined the Nineteenth Amendment (now re-numbered as the Sixteenth Amendment) as an Equal Rights Amendment, providing for gender, sexual orientation, and gender identity what the Reconstruction Amendments provided for race. Meaningfully, our Equal Rights Amendment also provides explicit constitutional protections for pregnancy, childbirth, and “all attendant conditions,” which we have defined to include the decisions to become pregnant or to terminate a pregnancy.

But our vision of the Progressive Constitution goes beyond simply enshrining protections for women and LGBTQ+ persons. By providing residents of federal territories with the rights that all Americans enjoy, our Progressive Constitution eliminates the secondary status to which the territories have been consigned.

 

Fundamental Rights

In thinking about how best to enshrine and protect fundamental rights, we were tempted to provide explicit protections for a range of civil and human rights. After all, over the last fifty years, much of the critique of the Supreme Court’s fundamental rights jurisprudence has focused on the Court’s recognition of unenumerated rights.

But recognizing, as the framers did, that we could not identify every right worth protecting, or foresee every possible circumstance that might, whether now or later, engender a need for protection, we thought it better to provide guidance for the protection of extant rights. For example, our rendering of the Second Amendment specifically contemplates state-imposed limits on the right to bear arms. We also have sought to update the Fourth Amendment’s protections against search and seizure to meet the challenges of modernity. And, recognizing that liberty and equality are often inextricably intertwined, we have specifically accounted for reproductive rights in an Equal Rights Amendment. In addition to these changes, we also strengthened the right to counsel in criminal proceedings, while also reimagining the Seventh Amendment to provide a right to counsel in civil proceedings in which “basic human needs are at stake.”

We have also made some important changes in the nature of certain fundamental freedoms. For example, we reimagined the First Amendment in terms that reflect James Madison’s original desire to protect both freedom of religion and freedom of conscience or thought. Obviously, Madison’s vision was never realized— indeed, his proposal was revised in committee and the phrase “equal rights of conscience” excised in favor of “free exercise thereof.” Because Madison’s “equal rights of conscience” language was replaced by “free exercise” of religion, the Religion Clauses have been read narrowly to limit the Amendment’s protections to those who are religious and to deny them to those with secular claims of conscience. This dynamic was evident in the Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012).

Our reimagining of the First Amendment is consistent with approaches undertaken in other jurisdictions with similar concerns about religious pluralism. Although the language of our First Amendment singles out religion for special protections (free exercise) and special burdens (disestablishment), modern constitutional and human rights documents are explicit in protecting the freedoms of conscience, thought, or belief.

Our proposal also reflects the changing nature of spiritual life in the United States. With many millions of citizens no longer religiously affiliated, but nonetheless claiming affiliation with various spiritual approaches, the First Amendment should be read, or revised, to provide them with clear protections. This would bring our law into alignment with the European Declaration of Human Rights, the ICCPR, and the constitutions of many other modern constitutional democracies.

Although we were sparing in explicitly providing for certain rights protections, we reimagined the Ninth Amendment to not only recognize unenumerated rights, but to explicitly include a limitations clause for the exercise of all rights. Although the U.S. Constitution has never included an explicit discussion of the limitations of rights, such clauses are features of other constitutions, including the Canadian Charter of Rights and Freedoms and the South African Constitution. As a general matter, limitations clauses recognize that rights— even those subject to constitutional protection— are not absolute. Accordingly, a limitations clause allows for rights to be limited to a certain extent in order to promote other democratic values, including the exercise of other rights and the public good. By the same token, a limitations clause may prohibit excessive restrictions on the exercise of rights that may, because of their scope and structure, be harmful to democracy.

One persistent criticism of the existing Constitution is that it is a document of negative rights, as opposed to positive entitlements. We took this critique seriously, and considered including specific positive entitlements as part of our reimagining of the document. In the end, however, while our draft does specify that government omissions may, in some cases, give rise to a constitutional violation, we concluded that strengthening democratic institutions would provide greater opportunities for the People to speak on the issue of such entitlements, working within the framework of federal and state governments, constitutions, and laws to create a more robust framework of rights and freedoms. This more modest approach to rights, we believe, is consistent with our approach to this project, the Framers’ approach to the original Constitution, and progressive constitutionalism more generally. As Chief Justice John Marshall observed in McCulloch v. Maryland (1819), a constitution cannot anticipate all future needs. To do so would render the document too lengthy, cumbersome, and timebound to be meaningful to those it was meant to govern. On this account, the Constitution must provide for a working democracy that enables the People to protect themselves.