The Constitution is failing us — so let’s fix it 

If there is a silver lining in these dark days for American democracy, it is the pressure test that President Trump and his allies are putting on the Constitution. They are revealing loopholes, gaps and vagueness that let corruption, greed and hate infect the republic.   

It’s time to breathe life back into the document and strengthen it. It is not carved in stone. 

Harvard history professor Jill Lepore notes in The Atlantic that 12,000 amendments have been introduced in Congress since the Constitution went into effect 236 years ago. Only 27 have been ratified. The difficulty of amending the document has led people to rely instead on the courts, Congress and the presidency to address contemporary issues of rights and governance.  

These institutions are led by politicians and their appointees. Their philosophies change with elections. And if the Founders assumed that voters would always elect men and women loyal to the Constitution, they were naive. They left too much of the document open to interpretation. As a result, our most fundamental rights are built on a foundation of Jell-O. 

Between now and America’s 250th birthday next July, Congress could lead a national conversation on how to fortify and update the Constitution. A first step would be to make it somewhat easier to amend the document. For example, the House and Senate could approve a 28th Amendment that would allow it to propose future reforms with majority votes in the House and Senate rather than the two-thirds required now. Three-fourths of states would still be required for ratification.   

As the 28th Amendment proceeds, Congress would conduct a series of televised hearings in which historians, constitutional experts and public interest groups debate additional reforms, such as the following.

Abolish the Electoral College. Allow the popular vote to determine the outcome of presidential elections.   

Clarify the Insurrection Clause. Section 3 of the 14th Amendment disqualifies from public office any person who swears to support the Constitution but participates in or aids a rebellion. Because Trump instigated a rebellion against the Constitution in 2021 and ran for the presidency again in 2024, the question arose whether the clause applies to presidents. If yes, Section 3 should say so.

A second question was whether disqualifications are automatic. The Supreme Court ruled they are not, and said Section 3 must be enforced by Congress. However, 147 Republicans in Congress voted against certifying Joe Biden’s victory, in support of Trump’s rebellion on Jan. 6, 2021. One could argue that this was a mass violation of the Insurrection Clause, yet none of the 147 were disqualified from public office. Many plan to run for reelection next year. 

In practice, putting Congress in charge of policing itself hasn’t worked well. Over the last 250 years, the House has expelled only six members, and the Senate has expelled only 15. Should Section 3 clarify that disqualifications are self-executing? 

Make presidents accountable to the law. Article II, Section 3 requires presidents to ensure that laws are faithfully executed. Yet, the Supreme Court ruled that presidents can’t be prosecuted for acts taken while performing official duties. Trump uses this as a license to flagrantly violate laws, deny people rights, abuse the justice system, and usurp the powers of the legislative and judicial branches. Shouldn’t the Constitution make clear that presidents, like everyone else, are not above the law? 

Limit the president’s pardoning power. Trump has abused pardons to exempt friends and allies from punishment for illegality, especially when they have committed crimes in his service. Perhaps the Constitution should prescribe when presidential pardons and commutations are appropriate and when they are not.

Prohibit presidents and their families from using the presidency for personal profit. Trump and his family have made $3.5 billion during his presidency so far. Now, two-thirds of Americans (67 percent) believe the federal government is corrupt. The Constitution could require presidents and vice presidents to put their financial holdings in blind trusts. It could close the loophole Trump has used to accept gifts, including that luxury jetliner from Qatar. 

Require enforceable ethics standards. Neither the president, Congress, nor the Supreme Court. has adequately established or enforced ethical standards. The Constitution could require them to do so. 

Reform campaign finance. By ruling that campaign spending is protected speech, the Supreme Court legalized bribery. By allowing unlimited donations, the court helped turn elections into contests of money rather than ideas. Spending on elections for federal offices soared to nearly $15 billion last year. Legal limits on contributions and spending do not silence speech in an era of free social media. The Constitution could permit, if not prescribe, reforms. 

Establish term limits for federal justices and judges. Could the Constitution require presidents and Congress to ensure reasonable ideological balance on the Supreme Court? 

Allow more direct democracy: National polls reveal significant gaps between what people want and what Congress delivers, indicating that lawmakers often prioritize special interests over the needs of their constituents. Nineteen states allow voters to recall state officials. Should voters be able to recall members of Congress, too? Twenty-six states permit ballot initiatives that pass or repeal legislative acts. Should voters have the same option regarding national legislation? 

Protect voting rights. Should the Constitution require that states assign reapportionment to nonpartisan commissions? Should it forbid states from restricting access to voting places and ballots? Should Election Day be a national holiday so that voting doesn’t conflict with jobs?   

Create new protected rights. The Constitution’s authors could not have anticipated the existential threats posed by artificial intelligence, environmental crises and nuclear warfare. Global movements are underway to recognize the legal rights of future generations and the natural world.  Discussions are underway in the European Union and the U.S. about the rights of humans as artificial intelligence evolves. Should the Constitution recognize these rights? 

Finally, even a perfect Constitution can’t protect the republic if its people are not deeply committed to the values and rights the document represents. There is some doubt about that commitment today. The electorate and the U.S. Senate each failed twice to deny Trump the presidency. A new Yale poll found that government corruption has become the people’s top worry. Political scientists say the loss of confidence in the government’s legitimacy is an underlying cause of political extremism and violence. 

“One of the Constitution’s founding purposes was to prevent change,” Lepore writes. “But another was to allow for change without violence. Amendment is a constitution’s mechanism for the prevention of insurrection — the only way to change the fundamentals of government without recourse to rebellion.”  That’s a very good reason to make the United States Constitution great again. 

William S. Becker is co-editor of and a contributor to “Democracy Unchained: How to Rebuild Government for the People,” and a contributor to Democracy in a Hotter Time, named by the journal Nature as one of 2023’s five best science books. He previously served as a senior official in the Wisconsin Department of Justice. He is currently executive director of the Presidential Climate Action Project.