Aug 8, 2018
It’s Time to Start Talking About the Post-Trump Amendments I Medium
We will need a series of Constitutional Amendments to repair the harm Trump has done to our rights, institutions, and norms.
We are only in the second year of the Trump Administration and we have already seen the implementation of a religiously-based travel ban, the curtailment of an open Internet, draconian immigration policies that tear apart families, and the degradation of norms that undergird our constitutional system. On top of this, Trump has expressed a desire to weaken the First Amendment, to censor the press, and to order U.S. troops to commit war crimes, all while using the office of President to line his own pockets at the taxpayers’ expense.
Sooner or later, Trump and those that enabled his attack on the rights and institutions guaranteed by the Constitution will be forced out of office. When that happens, it is crucial for the people to implement constitutional reforms that will clarify and strengthen rights and institutions that have been attacked by the Trump Administration.
In the aftermath of the American Civil War, it was clear the existing constitutional structure not only violated the basic human rights of large swathes of the American populace but also failed to provide mechanisms for the people to enforce their individual rights. This resulted in passage of the 13th Amendment, which abolished the institution of slavery, and the 15th Amendment, which recognized the right to vote regardless of race (though it would be several more decades before necessary reforms abolished voting restrictions based on sex), as well as the 14th Amendment, which mandated that the rights guaranteed under the Constitution, which had previously only applied in regard to the federal government, also generally applied to the States.
Just as the American Civil War demonstrated weaknesses in our constitutional structure, so too has the presidency of Donald Trump. Many of the norms and rights we had taken for granted over several decades have been unceremoniously destroyed in less than two years. Though, to be fair, some of these structural issues have been present for longer than we would like to admit, only to have Trump surface them in the worst ways possible.
Below are suggestions for some of the necessary constitutional reforms that will strengthen the rights and norms that guarantee us a liberal democracy once Trumpism has been defeated as a force in American political life.
Determine the President by Popular Vote
The president is selected by the electoral college, which assigns electors to the States based upon their representation in Congress. With few exceptions, the popular vote and the electoral college vote have aligned throughout most of American history. However, the person that won the majority of the popular vote did not win the presidency in two of the past five presidential elections. The electoral college has become an untenable institution in a modern democratic republic like the United States.
Abolishing the electoral college and determining the president via popular vote would not only prevent undemocratic outcomes like happened in 2000 and 2016, it would also compel presidential candidates to campaign more broadly rather than focusing on a few swing States, forcing candidates to address a wider variety of issues.
Recognize a Right to Privacy
Most people assume they have a legally recognized right to privacy, and under current interpretation of the Constitution, they do. But Trump’s selection of Brett Kavanaugh for the Supreme Court could very well spell the end of the right to privacy since there is no express constitutional provision protecting that right.
The right to privacy recognized over decades of Supreme Court caselaw is what protects a woman’s right to choose (though this right should also be protected under the Equal Protection Clause), the right to purchase contraception, and the right to engage in private consensual sexual activity between adults.
Making the right to privacy an express provision in our Constitution, codifying existing caselaw regarding abortion, contraception, and private consensual activity between adults, among other areas governed by the right to privacy, will prevent any future Supreme Court from harming these existing protections. It is worth noting that expressly recognizing our right to privacy would have been necessary even without Trump due to the rise of Big Data and the need to ensure the people unambiguously have a legal right to regulate the use of our personal data for governmental or commercial purposes.
Limit the President’s Pardon Power
The purpose of the president’s pardon power is to act as an “escape valve” that creates an expeditious option for leniency in the case of excessive criminal punishment, not to reward political cronies and promote unconstitutional policies. While previous presidents have abused the pardon power to reward campaign donors, Donald Trump has consistently abused the pardon power to promote corruption and prevent public officials from being held accountable for violating the Constitution.
Trump has so far pardoned: former Arizona sheriff Joe Arpaio, who was convicted of contempt for violating court orders to cease unconstitutional policies that had resulted in systemic police misconduct and the death of prisoners in his custody; commentator Dinesh D’Souza, convicted of campaign finance violations and granted clemency for supporting Trump’s insane conspiracy theories about a “Deep State” working against his Administration; and Scooter Libby, aide to former Vice President Dick Cheney, convicted of obstructing a federal investigation, who was pardoned primarily to send a message to those under investigation by Special Counsel Robert Mueller that Trump is willing to use his pardon power to clear his associates of wrong-doing.
The pardon power should continue to serve its important purpose of creating a mechanism for mercy, but this power requires some limitations. One option would be to provide Congress the power to veto a pardon. Another route would be to create a procedure for judicial review of presidential pardons if there is cause to believe the pardon was issued for a corrupt intent.
Eliminate Lifetime Tenure for Federal Courts
While the Trump Administration has created novel strains on our constitutional structure, other problems have been evident for decades. One of those is lifetime tenure for federal courts. The nomination for the federal courts have become politicized in a way beyond what the Framers of the Constitution could have imagined, not to mention the obvious fact that people live much longer today than in 1787.
The elimination of lifetime tenure for federal jurists should be substituted with a 15–20 year term, with the option of the Senate retaining the sitting judge or justice. This would preserve the desirable goal of maintaining stability in the interpretation of the Constitution to the issues of the day while preventing calcification of legal reasoning on the federal courts that is drastically out of line with mainstream thought.
Protect Information Freedom
An open Internet has transformed our society and economy by allowing people to organize for political change outside of established channels; by providing small businesses the chance to compete against Big Business; and by creating a network for people to communicate effortlessly across national boundaries. That is why the Trump Administration’s efforts to destroy the open Internet we have come to know and love these past two decades would be catastrophic to our democracy and economy.
Trump’s FCC is pursuing policies that will ultimately result in an Internet that will be unrecognizable to us — politics will remain the purview of the privileged while economic development will stagnate as small businesses with a good idea are prevented from entering the market. It is crucial to act now before efforts to end an open Internet become entrenched and irreversible.
The public Internet was in its infancy the last time the Constitution was amended in 1992. In the quarter-century since then, it is clear an open Internet has become integral to protecting our rights under the Constitution and to ensuring a vibrant economy. This is why we must update our Constitution to prevent any future Congress or Administration from meddling with an open Internet.
Expressly Prohibit Enrichment from Public Office
The one area where Donald Trump unfortunately exhibits an aptitude for novel thinking is in developing new ways to use the Presidency to line his own pockets. There have been corrupt presidents before, but none so brazenly open in their use of the office for personal enrichment as Trump.
The Framers of the Constitution intended for Congress to act as a check on such a shamelessly corrupt President. However, the Framers did not plan for a situation where a party captured by extremists would simply shrug and abdicate its duty to the people in furtherance of its own policy agenda. This is why the Constitution should have a provision explicitly requiring the president and top Administration officials to divest of personal business operations during their term of office.
Make the “Actual Malice” Standard a Part of the Constitution
It is harder for public officials in the United States than in almost any other free country to sue the press for libel. The reason for this is the “actual malice” standard outlined by the Supreme Court in the 1964 case New York Times v. Sullivan. The actual malice standard prevents a public official from suing reporters or publications for libel unless they “knowingly or recklessly” print false information. The actual malice standard is what allows the American press to pursue stories about our political leaders without fear of legal retribution that could drive reporters into financial ruin.
Nobody has seriously challenged the actual malice standard for over 50 years. That is until Donald Trump, who calls the free press the enemy of the people, made it unambiguously clear that he wants to end the actual malice standard to allow Trump to freely sue any reporters or press outfit he does not like. And since the actual malice standard is rooted in caselaw, we may only be one more Trump-selected Supreme Court justice away from the end of actual malice, a move that would chill press freedom and the ability to gain information about our elected leaders.
A free press is essential to spreading information necessary for citizens to make informed decisions about their government. We can ensure the proud American tradition of a free press is not extinguished by abuse of libel laws by enshrining the actual malice standard in the Constitution.
End the Influence of Money in Politics
The 2016 election will go down as one of the most important in U.S. history, yet only 58% of eligible voters showed up to the polls. Unfortunately that type of turnout is par for the course in recent decades, with voter turnout seldom cracking 60%.
There are many explanations for low voter participation, but one of the reasons is the extreme influence of money in politics. Voters are not stupid, and they understand that our current campaign finance system does water down their voice. After all, when it comes down to making decisions on policy, most representatives will listen to the wealthy donors and operators of PACs that fund their campaigns over the voters they are supposed to represent.
The Supreme Court’s current interpretation of the First Amendment treats money like speech, which prevents the people from passing laws that limit spending on elections, mandate public financing of elections, or prohibit corporate spending on elections. It is time to pass an amendment that expressly permits the regulation of spending on elections and campaign practices, which will restore people’s confidence that their votes will carry real weight. Increased voter participation is essential if we are to restore our rights and democratic institutions post-Trump.
Make Prohibitions on Torture Express
Donald Trump has been a cheerleader for renewing the use of torture since the early days of his presidential campaign. As president, Trump has elevated advocates of torture to the highest positions in our government, including Secretary of State and Director of the CIA.
It goes without saying torture is inhumane, ineffective, and un-American. The Eighth Amendment’s prohibition on cruel and unusual punishment would seem to clearly prevent the legal use of torture by the United States. But the widespread use of torture overseas by the second Bush Administration and the Trump Administration’s efforts to make the use of torture official American policy demonstrate the Eighth Amendment needs clarification to expressly forbid the use of torture, directly or indirectly, by our government.
Make the Right to Vote Express
The right of the people to determine their own affairs by voting for their representatives and public initiatives is the foundation of a true democratic republic. That is why many are surprised to learn that this bedrock right is not expressly guaranteed by the Constitution.
This has allowed unscrupulous States across the country to create unnecessary regulations that only serve to restrict access to the polls. Making the right to vote in federal and local elections an express part of the Constitution, as well as barring unreasonable voting regulations, would prevent States from throwing up barriers to the polls and ensure everyone has a say over their government.