There was a nationwide wave of shock, surprise, and indignation in December, 2022, when former president Donald Trump declared that parts of the constitution should be suspended or terminated. Trump was urging an arbitrary and self-serving action — one that would have put him back in the White House. That’s a bad and indefensible idea.

Even apart from Trump’s selfish motivation, to terminate the constitution is a bad idea. America needs a strong and stable foundation in law.

The question needs to be asked, though, whether the current status quo is exactly the constitutional foundation that America needs. Indeed, might it be the case that constitutional changes are needed? Mightn’t there be reason for stronger defenses of liberty, more restraint on government, and greater civil rights for citizens?

It is a bad idea to make changes suddenly and impulsively, terminating parts of the constitution when they become inconvenient. But a careful, fair, and well-informed discussion about reforming the whole constitution is probably a good idea. And many people agree. There is a steady traffic in the US of editorial voices suggesting that the US constitution should be very substantially changed, or even replaced. These suggestions go beyond merely amending one specific passage. They call for a complete overhaul of the document. To those who argue that the constitution already contains a means of amending, the response is that the amendment process isn’t good enough and is itself one of the things that need changing.

This site provides a compilation of some of the calls for constitutional reform. They come from law professors and journalists, and from liberal and conservative thinkers. The following list includes some of the most famous names in US history, and some obscure individuals. Some are more expert or more authoritative than others. By listing a source here, I don’t mean to endorse it. I only mean to show that many, disparate voices are declaring a similar message.

You can click on the title of each section to go to the source file.

“Supreme Court Reform is in the Air”

The New York Times

David French | October 2024

French is an opinion writer for the New York Times, with a special focus on courts and law. In his October 10, 2024 column French links present-day problems to a mistake embedded ion the constitution.

When you combine a constitutional misjudgment with senatorial shortsightedness and extreme polarization, you land exactly where we are today — with instability and anger that harm the court and threaten the rule of law.
Let’s start with the constitutional misjudgment. When the founders declared in Article III that judges hold their offices “during good Behaviour” rather than for a set period of time, they introduced an inescapable element of randomness to the process. Since a president can’t appoint a justice unless there’s a vacancy — and no president can make a justice retire, no matter how hard he or she might try — then presidents (and voters) typically have no idea how many justices they’ll appoint.

French goes on . . .

[I]t’s clear that American nomination contests have become more contentious, and many Americans are rightly frustrated that the vagaries of chance and the Senate’s embrace of power politics have left them with little voice in the selection of a branch of government that’s arguably become more potent than any other, which again violates the intent of the founders.

Notice that French respects ‘the intent of the founders,’ and shares in the values and hopes that they felt. But he does not shrink from linking the current distress over the politicized Supreme Court to the constitution’s failure to keep the court above politics.

“Tyranny of the Minority”

Crown Publishing Group | New York

Daniel Ziblatt and Steven Levitsky | September, 2023

These writers note several aspects of the American system (gerrymandering, the electoral college, the US Senate, life terms for judges, etc.) that deprive majorities of decision-making power. Consequently, the US is less fairly governed (specifically, less majoritarian) than many other nations. And the anti-majoritarian stipulations in the constitution prevent needed change.

[M]any Americans embrace the Constitution with an “almost religious devotion.” [They] treat the framers as if they were endowed with almost divine or supernatural powers, and the Constitution as if it were a sacred document—one that is “basically perfect.” In other words, our society operates under the assumption that our founding institutions are, in effect, best practice—across history and in all contexts.
[But] in the 236 years since the U.S. Constitution was written, dozens of other democracies have emerged. Many of them have produced institutional innovations that have proven successful, from directly elected presidents to electoral systems based on proportional representation to independent national election authorities. These innovations have spread widely over the last century because leaders of new democracies consider them improvements.

“The United States’ Unamendable Constitution”

The New Yorker

Jill Lepore | October 2022

Lepore is a noted historian and scholar who has recently focused on one detail of American governance: the amendment process. The ability to amend the constitution, to keep it up to date, has been vital throughout the nation’s constitutional history. But the possibility of amending, Lepore argues, has dwindled to near impossibility.

True, the amendment process has produced 27 amendments in the nation’s history. But thousands of other proposals, many of them very popular, have failed to pass due to the anti-majoritarian rules of the process. And today, Lepore argues, the practical possibility of pushing an amendment through is more slight than ever in history.

And if change through amendment isn’t reasonably possible, how long can an increasingly out of step constitution survive?

How far can a constitution bend before it breaks? The study of written constitutions has become a lot more sophisticated since Madison’s day. “Constitutions are designed to stabilize and facilitate politics, but, there is certainly the possibility that constitutions can outlive their utility and create pathologies in the political process that distort democracy.” Could that be happening in the United States?

Lepore strengthens her argument by citing a number of issues on which a strong and persistent majority of Americans and their elected representatives favor change, but which have failed year after year, to pass the amendment hurdles.

So for those who dismiss any “Replace the Constitution!” argument with a “Just amend it!” reply, Lepore demands they reconsider the amendment process itself.

“Is It Time for a New Constitutional Convention?”

Governing: The Future of States and Localities

Clay S. Jenkinson | July 2022

Jenkinson observes that the 250-year anniversary of the United States will arrive in four years. And he suggest the best way to observe that occasion would be to emulate the founders and write a bold new constitution:

What if we attempted to reinvent ourselves as a way of celebrating a quarter millennium of freedom? We have much to cherish in the Constitution that was written in the summer of 1787 and ratified a year later by the American people. But it’s outdated in some important ways, imperfect at least in the way we currently interpret it, and of course, it was written by 55 privileged white males, with no representation by women, African Americans, Native Americans or average citizens who had to work hard for a living. How can a constitution that was oblivious to well more than half the population be regarded as credible in this uniquely multicultural republic?

“The Nation That Never Was: Reconstructing America’s Story”

University of Chicago Press

Kermit Roosevelt III | April 2022

According to a review of this book by Sanford Levinson:

[Roosevelt] persuasively argues that we must liberate ourselves from our sentimentalized attachment to ‘the Founders’ and even to the Declaration of Independence, which he audaciously reinterprets. We should instead define our national identity around the promises (and challenges) of Reconstruction and the aspiration, yet unachieved, for a genuine regime change to replace the ‘Slaveholders’ republic’ founded on white supremacy that was the aftermath of secession from the British Empire and the drafting of the 1787 Constitution. This book will undoubtedly be controversial. It deserves intense discussion, for if Roosevelt is right, nothing less than the future of the United States is at stake.”

Kermit Roosevelt (yes, he’s a descendent of both Theodore and Franklin) says the America that began with the Declaration and the Constitution is not the nation we live in today, and not the nation we should aspire to. He says the rebirth of the nation after the Civil War, when the 13th, 14th, and 15th amendments extended civil rights massively and placed equality at the forefront, ought to be our starting point.

Our constitutional history is hard to describe as a consistent development of founding principles of liberty and equality. Those were not the main concerns in the founding era, and even afterward, progress on racial equality has proved neither inevitable nor constant.

“It’s Time to Amend the Constitution”

Politico

Sarah Isgur | January, 2022

Our Founders designed the Constitution so that amending it would be hard, but not impossible. In fact, they ratified the document with many of the amendments that would become the Bill of Rights already in mind. George Washington dedicated a good chunk of his first inaugural address to the subject of amendments. And, of course, Thomas Jefferson would later tout the necessity of changes to the Constitution by successive generations: “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
But today, thanks in large part to growing negative partisanship and shrinking Congressional interest in doing anything, the amendment process has been relegated to the dust heap while our national problems — from climate change to an outdated immigration system — pile up without political accountability. The resulting constitutional stagnation is a threat to the Republic

“The Constitution Isn’t Working”

The Hill

John Kenneth White | December 2021

The U.S. Constitution is the sacred text of American government and civic life. But it’s time to face facts: The document, written in 1787, isn’t working. The signs are all around us.

“Our Constitution Has Failed: It’s Time for a New One”

The American Constitutional Society

Chris Edelson, Assistant Professor of Government | January 2021

When the Articles of Confederation failed, the framers started over with a new constitution. Something similar is needed today, although at the moment, the prospect of drafting a new constitution is wildly implausible. It’s past time, however, to consider the cost of inaction. If we do nothing, these pathologies will persist. We need creative thinking to find a solution to the problem of our Constitution’s failure.
Our system depends on a delicate balance--a government strong enough to capably respond to pressing national problems, yet not so unchecked that officeholders are able to shrug off limits on power and rule as authoritarians. A government too weak to carry out its responsibilities (like the government under the failed Articles of Confederation) is a failed government. A government with a president who rejects the notion of limits on his or her power is also a failed government. At the moment, we are experiencing both kinds of failures.

“Let’s Give Up on the Constitution”

New York Times

Professor Louis Michael Seidman | December, 2012

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

“The U.S. Needs a New Constitution—Here's How to Write It”

The Atlantic

Alex Seitz-Wald and National Journal | November, 2013

"No society can make a perpetual constitution," Thomas Jefferson wrote to James Madison in 1789, the year ours took effect. "The earth belongs always to the living generation and not to the dead .… Every constitution, then, and every law, naturally expires at the end of 19 years." By that calculation, we're more than two centuries behind schedule for a long, hard look at our most sacred of cows. And what it reveals isn't pretty.

Seitz-Wald reminds us that the founders rejected the notion that existing authorities should always be obeyed or that all the good ideas were already known. The founders believed in progress. So Americans today would be following in the true spirit of the founders if they sought reform and improvement in the constitution:

Put simply, we've learned a lot since 1787. What was for the Founders a kind of providential revelation—designing, from scratch, a written charter and democratic system at a time when the entire history of life on this planet contained scant examples of either—has been worked into science. More than 700 constitutions have been composed since World War II alone, and other countries have solved the very problems that cripple us today. It seems un-American to look abroad for ways to change our sacred text, but the world's nations copied us, so why not learn from them?

“The Declining Influence of the United States Constitution”

New York University Law Review

David S. Law and Mila Versteeg | June 2012

It has been suggested, with growing frequency, that the United States may be losing its influence over constitutionalism in other countries because it is increasingly out of sync with an evolving global consensus on issues of human rights. . . In this Article, we show empirically that other countries have, in recent decades, become increasingly unlikely to model either the rights-related provisions or the basic structural provisions of their own constitutions upon those found in the U.S. Constitution. . . . Our analysis also confirms, however, that the U.S. Constitution is increasingly far from the global mainstream.

“The Constitution Failed”

Self-published book

Robert R. Owens | 2010

Owens writes from a Tea Party perspective, and focuses on the failure of the constitution to keep the national government limited to it explicit or “enumerated” roles. Unlike many who insist that the 10th amendment answers such objections, Owens admits that the 10th amendment and the constitution entirely have allowed the national government to expand.

Americans from all walks of life watch in stunned disbelief as the federal government on steroids swallows the economy, health care, the financial system, major manufacturing, the insurance industry, and anything else that doesn’t move fast enough to get out of the way.

“Constitutional Stupidities, Constitutional Tragedies”

New York University Press

Sanford Levinson and William Eskridge, editors | 1998

In 1996, America’s constitutional experts were gathered in New Orleans, and someone off-handedly asked the others what they considered to be the “stupidest” thing about the Constitution. “Stupid” seems like an odd criterion for serious scholars. But the question came at the end of a long day of serious discussion. The scholars were expressing themselves a bit more freely than usual over their dinners.

There was enough interest in the topic that the professors agreed to ponder the question and then write their conclusions as book chapters. They produced 39 essays, which were brought together in a book called “Constitutional Stupidities, Constitutional Tragedies.” It was published in 1998 by New York University Press.

“The Virginia Resolutions”

Resolution of the Virginia State Legislature

James Madison | November 1798

James Madison, more than any other person, was determined to give the US a strong constitution. Madison is rightly called “the Father of the Constitution.” So it is odd to see him cited here as an early critic of the constitution.

Yet he is.

In Madison’s mind, the abuse of the “necessary and proper” clause in the Constitution had led to the expansion of federal government power well beyond the intended execution of the enumerated powers. The creation of the public debt and the Bank of the United States, the carriage tax, the Jay treaty, and finally the string of measures adopted by the Adams administration in the second session of the Fifth Congress all indicated a dramatic perversion of the original intentions of the framers of the Constitution.

Madison was distressed to see his constitution being misinterpreted and misapplied so grossly and so soon after it was enacted. He called a batch of new laws passed by congress, “A monster that must for ever disgrace its parents.”

Like Jefferson (see below) Madison never explicitly demanded a new constitution. He only bemoaned how the language he and other had written was being applied by the Adams Administration.

[A] spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued)1 so as to destroy the meaning and effect of the particular enumeration.

The reference to “certain general phrases” probably refers chiefly to “necessary and proper.”Article I, Section 8, Clause 18, which says:

[The Congress shall have Power . . . ] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Madison argued that “foregoing” referred only the few specific “enumerated” congressional responsibilities that were listed earlier in that same section. And he argued that “necessary and proper” also meant only the most limited license.

But the cat was out of the bag. The horse was out of the stable. Congress was already reading those same words far more permissively than Madison says was intended.

Madison, in those early days, could not bring himself to call for a repeal or review of the document he had brought into existence only 10 years earlier. But he recognized and acknowledged publicly that the constitution was evolving quickly in unintended ways, and that the internal safeguard he had trusted were not sufficing to keep the document in order. The design of a limited and proscribed national government was a failure from the start.

“The Kentuckey Resolves”

Resolution of the Kentucky State Legislature

Thomas Jefferson | November 1798

Angered by actions taken by the Adams Administration, Thomas Jefferson wrote a set of resolutions that were later adopted by the state of Kentucky. The upshot of the resolution was that Adams and the congress had overstepped their proper authority and passed laws that they weren’t authorized under the constitution to do.

Resolved that the construction applied by the General government (as is evidenced by sundry of their proceedings) to those parts of the constitution of the US which delegate to Congress a power ‘to lay & collect taxes, duties, imposts & excises, to pay the debts & provide for the common defence & general welfare of the US.’ and ‘to make all laws which shall be necessary & proper for carrying into execution the powers vested by the constitution in the government of the US. or in any department or officer thereof’ goes to the destruction of all the limits prescribed to their power by the constitution; that words meant by that instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General government under colour of these articles, will be a fit & necessary subject of revisal and correction, at a time of greater tranquility, while those specified in the preceding resolutions, call for immediate redress.

Jefferson’s resolution condemns the controversial bills, and even declares, “[W]hensoever the General government assumes undelegated powers, it’s acts are unauthoritative, void, & of no force.” Jefferson makes this claim as a private citizen, and it is a rather scandalous remark. We do not generally allow individual citizens today to overrule legislation, or to exercise judicial review over the nation’s laws.

Readers will object to the inclusion of Jefferson’s resolutionon on this list, since he clearly intends to support the constitution. He only goes so far as to say the constitution is a fit subject for “revisal and correction,” which might (but doesn’t necessarily) mean replacing the constitution with a new one. (Remember that the founders who were sent to Philadelphia in the summer of 1787 to revise the Articles of Confederation felt justified in replacing it entirely.)

But note that Jefferson is expressing support for a constitution that exists in his imagination while rejecting the constitution that existed in reality. The legislation that he pronounced “unauthoritative, void, & of no force” was in fact the law of the land. The controversial bills were enacted properly by congress and signed by the president, and they became law. Part of that legislation Jefferson declared void was used by multiple presidents through the nation’s history and remain in force today.

Jefferson set the precedent of conjuring two separate constitution: the ideal one in his head and the “unauthoritative” one that was actually in force. Still today, most of the strongest proponents of the constitution of 1787 are thinking only of their ideal document, and not the real constitution.

“The Anti-Federalist Papers”

Various American newspapers & printers

Brutus, Centinel, the Federal Farmer, and others | October 1787 & after

American doubts and reservations about the constitution are not a new development. Immediately after the constitutional convention ended in September of 1787, there was a great national debate about whether the rush to adopt the constitution was necessary, and whether the specific proposed document was right in all its particulars.

The famous Federalist Papers were matched with an equal series of essays offering counter arguments. One of the writers of those “Anti-Federalist” papers went by the penname Centinel and was probably Samuel Bryan of Pennsylvania. He urged citizens not to rush to judgement:

[O]ur situation is represented (by Hamilton) to be so critically dreadful that, however reprehensible and exceptionable the proposed plan of government may be, there is no alternative, between the adoption of it and absolute ruin. My fellow citizens, things are not at that crisis, it is the argument of tyrants; the present distracted state of Europe secures us from injury on that quarter, and as to domestic dissensions, we have not so much to fear from them, as to precipitate us into this form of government, without it is a safe and a proper one. For remember, of all possible evils that despotism is the worst and the most to be dreaded.

As Centinel read the new centralized powers of the proposed constitution, he saw despotism. He alerted the citizens of Pennsylvania that adopting the proposed constitution meant surrendering civil liberties that the currrent state constitution secured to them:

Your present frame of government (the Pennsylvania constitution), secures to you a right to hold yourselves, houses, papers and possessions free from search and seizure. . . Your constitution further provides “that . . . a right to trial by jury ought to be held sacred.” It also provides and declares “that the people have a right of FREEDOM OF SPEECH, and of WRITING and PUBLISHING their sentiments. . . The constitution of Pennsylvania is yet in existence, as yet you have the right to freedom of speech, and of publishing your sentiments. How long those rights will appertain to you, you yourselves are called upon to say, whether your houses shall continue to be your castles; whether your papers, your persons and your property, are to be held sacred and free from general warrants, you are now to determine.

The choice, as it appeared in 1787, was to keep the protections guaranteed by the various state constitutions, or surrender them by submitting to a national constitution that lacked a bill of rights.

In addition to questioning whether the rush to decide about the constitution was wise or necessary, Centinel questions one of the key elements of the constitution — and one that civics teachers still take for granted today. Why, he asks, do we put faith in a tricky system of checks and balances? The voters ought to be the only check necessary to bad government, and the best governmental system would be a simple one that does not cloud responsibility:

The highest responsibility is to be attained, in a simple structure of government, for the great body of the people never steadily attend to the operations of government, and for want of due information are liable to be imposed on — If you complicate the plan by various orders, the people will be perplexed and divided in their sentiments about the source of abuses or misconduct, some will impute it to the senate, others to the house of representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive.
But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility, for then, whenever the people feel a grievance they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election.

In 2022, Americans held many convoluted and contradictory opinions about the the workings of government, putting their faith variously in the Congress, the president and even the courts. Centinel’s worry about overcomplication has been borne out. He wasn’t right about everything, but he was right that the complex system established by the constitution has the consequence of confusing lines of accountability.

Centinel also, surprisingly, takes a poke at two American icons. He suggests that the sudden swell of enthusiasm for the proposed constitution (remember, this is just days after the end of the convention in fall of 1787 and most Americans had little knowledge of what the constitution said) owed much to the prominence of Washington and Franklin. Centinal blushes to criticize those men, and yet:

I would be very far from insinuating that the two illustrious personages alluded to, have not the welfare of their country at heart; but that the unsuspecting goodness and zeal of the one, has been imposed on, in a subject of which he must be necessarily inexperienced, from his other arduous engagements; and that the weakness and indecision attendant on old age, has been practiced on in the other.

In other words, Centinel says Washington is a great soldier but he has no experience with political philosophy. Franklin is a universal genius, but too old to rely on. Anyone who backs the constitution just because Washington and Franklin signed it needs to look more carefully.

The Centinel essay summarized here is one of dozens that were written and published between October 1787 and June 1788, after which the necessary nine states had voted for the constitution and opposition to ratification was moot.