The Constitution has expired — we should write a new one

Opinion>Congress Blog>Congress Blog - Politics The views expressed by contributors are their own and not the view of The Hill The Constitution has expired — we should write a new one Comments: by John Kenneth White, opinion contributor - 06/29/26 11:30 AM ET Comments: Link copied by John Kenneth White, opinion contributor - 06/29/26 11:30 AM ET Comments: Link copied

Title: Constitution Auction Image ID: 21323510620847 Article: FILE — Ella Hall, a specialist in Books and Manuscripts at Sotheby's, in New York, holds a 1787 printed copy of the U.S. Constitution, Sept. 17, 2021. The rare first printing of the U.S. Constitution sold at Sotheby's in New York for $43.2 million, a record price for a document or book sold at auction. The anonymous winning bidder at Thursday, Nov. 18 sale outbid a group of 17,000 cryptocurrency enthusiasts from around the world who crowdfunded to buy it over the last week. (AP Photo/Richard Drew, File)

FILE — Ella Hall, a specialist in Books and Manuscripts at Sotheby’s, in New York, holds a 1787 printed copy of the U.S. Constitution, Sept. 17, 2021. (AP Photo/Richard Drew, File)

Writing in the Jesuit publication America, Vincent Rougeau, president of the College of the Holy Cross, argues that the U.S. Constitution is “past its sell-by date.”

He is right.

As Rougeau points out, changing the outdated Constitution to meet the needs of the 21st century is nearly impossible. Only 27 amendments have been appended to the Constitution, the last being approved 34 years ago.

Given recent controversial rulings by the U.S. Supreme Court, the surest means to overturn them is by constitutional amendment. An amendment could void the court’s decision to eviscerate the 1965 Voting Rights Act and ensure minority representation in Congress. Likewise, overturning Citizens United, which has unleashed a torrent of money into the political system, reversing the Dobbs decision and restoring abortion rights or undoing the court’s ruling in Trump v. U.S. and subjecting presidents to prosecution for illegal acts in office, could all be done via amendments.

Other amendments could include placing age limits on presidents, or establishing congressional term limits, or strengthening the ban on presidents profiting from the presidency.

No matter how desirable (or undesirable) these changes may be, making them happen under the present constitutional strictures is impossible. As Rougeau writes, the Framers’ system for amending the Constitution is among the most difficult in the world.

Other flaws persist. The Electoral College, Alexander Hamilton’s scheme to elect presidents, has produced two misfires in this century. Al Gore in 2000 and Hillary Clinton in 2016 won the popular vote, yet George W. Bush and Donald Trump were the ones who were inaugurated. If the popular vote determined the winner, there would be no Electoral College, and the insurrection of Jan. 6, 2021, likely never would have happened.

The U.S. Senate is another structural defect. Today, there is an enormous disparity among state populations that allows for minority rule under the Constitution’s two senators per state limit. The numbers are so out of whack that only in 2002, 2010 and 2014 did Republicans control the Senate after winning a majority of votes cast in all Senate contests.

Alexander Hamilton recognized the danger. In Federalist No. 22, he wrote that there may come a time when the “majority of States is a small minority of the people of America” and the majority would no longer stand to “submit their interests” to the minority. That time is upon us.

Congress could keep the old document intact and pass legislation correcting some of its problems. For example, it could expand the size of the House of Representatives from its artificial 435 members to a number that realistically reflects a country with a population of nearly 350 million people. It could expand the size of the Supreme Court and set term limits for the justices. It could ban partisan gerrymandering.

Some might argue that the Constitution isn’t the problem; it’s the people who inhabit its institutions who are to blame. Trump has been building what Jack Landon Goldsmith calls a “Caesarian Presidency” and has perverted the intent of the framers. Should a new president who respects the limits of the office and adheres to the Constitution: problem solved.

In Congress, Sen. Angus King (I-Maine) blames his Republican colleagues for abdicating their constitutional powers. If only Congress would jealously guard its Article One powers, the balance between the executive and legislative branches would be restored.

The Senate could either limit the use of the filibuster or eliminate it, making action on important legislation more likely. But in our polarized system the minority party loves the filibuster, while the majority hates it. Reform is impossible.

The preamble to the U.S. Constitution sets forth the Founders’ aspirations to “form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of liberty to ourselves and our posterity.” Today, the Constitution can do none of these things.

My new book with Matthew R. Kerbel, “Democracy on the Edge,” describes how an “American Compact” — namely, fidelity to the ideals expressed in the Declaration of Independence and adherence to the Constitution — has undergirded the foundations of our democracy. While the Declaration’s assertion that individuals have a right to “life, liberty, and the pursuit of happiness” are the founding ideas of this country, the Constitution can no longer effectively translate those ideas into a workable system of governance.

Thomas Jefferson once wrote that every generation should adopt its own constitution. Doing otherwise, he argued, would be “an act of force and not of right” — subjecting new generations to the ideas and governing structures of the old.

As we approach the 250th anniversary of the signing of the Declaration of Independence, it is time to set things right and write a new constitution for the 21st century.

John Kenneth White is a professor emeritus at The Catholic University of America who writes on Substack. His latest book, coauthored with Matthew R. Kerbel, is titled “Democracy on the Edge: The Trump Elections and the Future of American Politics.”