Hoff: Should the Constitution be replaced?

That we are still debating the merits of the U.S. Constitution in 2024 speaks to the ultimate wisdom and vision of its framers, together with a shared commitment to its success by its beneficiaries.”

Dr. Samuel B. Hoff is a George Washington Distinguished Professor Emeritus of history and political science at Delaware State University. He has taught, published and lectured extensively on the American Constitution and the early republic.

As we commemorate the 237th anniversary of the approval of the U.S. Constitution at the 1787 Philadelphia Convention, two recent books offer starkly alternative solutions to our political maladies. On the one hand, Erwin Chemerinsky of the University of California, Berkeley’s School of Law paints a negative picture of the Constitution’s potential to rescue America, proposing a new framework for reform. Conversely, American Enterprise Institute scholar Yuval Levin reminds readers of how the Constitution creates common ground and unity despite its flaws, and that critical changes can be enacted within its boundaries.

For Chemerinsky, the Constitution is an antidemocratic document, as manifested most vividly by its countenance for slavery. But, for Levin, the Constitution was and continues to be a product of negotiation and competition. Just as Chemerinsky contends that the Constitution’s components have perpetuated polarization, so Levin celebrates the practical nature of the document, which allows experimentation and change without chaos.

In their respective 2024 publications, the aforementioned authors discuss challenges facing the branches of American national government and how they may be mitigated. In advocating for congressional changes, Chemerinsky finds that a new Constitution is needed for the U.S. Senate to be popularly elected. He likewise believes that making a clean break from the current Constitution will make it easier to abolish the filibuster in the Senate and to eliminate gerrymandering generally. Levin proposes a modest increase in the size of Congress, along with committee reforms.

Pertaining to the presidency, Chemerinsky states that the Electoral College is an anachronism that should be replaced with popular election of the chief executive. But Levin notes how the Electoral College is fair to the states. Further, he observes that the vagueness of presidential powers outlined in the Constitution permits flexibility in response.

Dealing with the courts, Chemerinsky criticizes the life tenure afforded to federal judges. As a remedy to the charge of interference in the political process, he wants term limits for Supreme Court justices. Levin calls for a proper understanding of the role of the courts in the American system and opines that the Constitution should be regarded as more than simply a legal document.

In the end, Chemerinsky and Levin disagree on how to proceed. Chemerinsky fears that the extreme polarization we are experiencing now will ultimately lead to state secession if the current Constitution is not replaced. Levin acknowledges the Constitution’s shortcomings but postulates that struggles over its procedures have fostered solidarity.

That we are still debating the merits of the U.S. Constitution in 2024 speaks to the ultimate wisdom and vision of its framers, together with a shared commitment to its success by its beneficiaries.

Reader reactions, pro or con, are welcomed at civiltalk@iniusa.org.