We Must Save the Constitution from Itself

The return of Donald Trump marks more than just another pendulum swing in partisan control. It is not merely a crisis of leadership, policy, or ideology—it is a structural crisis, one that exposes deep flaws in the constitutional order itself. For years, these flaws have been accumulating pressure, patched over with short-term fixes and the inertia of tradition. Now the contradictions have grown too large, and the system has reached a breaking point.

At its core, the American constitutional order has relied on oaths and the substantive commitment they embody—oaths to uphold the Constitution, to preserve the rule of law, and to honor democratic norms. These oaths are not just trivial ceremonies. The substantive commitment they signify is carried out in practice, in ways big and small that build and maintain the whole edifice. Imperfectly and with exceptions—nothing straight ever made of our crooked timber—the people who take that oath have mostly meant it and, in good faith, attempted to follow it. But what happens when the system’s most powerful office is occupied by someone for whom the oath is meaningless? A presidency built on hierarchical command and consolidated authority over the executive branch, once intended to be checked by a web of institutional balances, has instead become a tool for personalist rule and authoritarian ambition.

Political scientist Juan Linz warned decades ago about the inherent instability of presidential systems compared to their alternatives, including parliamentary systems and others where executive power is divided and shared among more than one person. Backed by ample data, he pointed to presidentialism’s tendency toward democratic backsliding, coups, and autocracy. For most of its history, the United States stood as the exception to this trend—its vast geographic scale, entrenched federalism, strong institutions and cultural commitments held the system together. But now, those same features have become vulnerabilities rather than safeguards.

If American liberal democracy is to survive, it must do more than weather Trump’s second term and its period of pervasive constitutional omni-crisis. We must confront the structural defects that made this collapse possible, and correct them with the same boldness that characterized past eras of constitutional reconstruction, including the original drafting and ratification of our supreme law of the land. The Constitution must be saved from itself, as it was intended to be.

Turnkey tyranny 

The modern presidency of the United States is a glaring outlier in global democracy. Its immense concentration of executive power creates a brittle system where democratic legitimacy hinges on the character of one individual. When that individual rejects the very premise of accountability and oaths to the Constitution, the system offers few effective remedies.

Impeachment, designed as the ultimate check on presidential misconduct, has failed in practice. Partisan loyalties overpower constitutional obligations, rendering the process politically toxic and practically impossible. A more glaring demonstration could not be imagined than Trump’s acquittal in the second impeachment trial, with 57 senators voting to convict but still short of the two-thirds needed. The ban on insurrectionists holding public office, carefully and deliberately crafted in the 14th Amendment, has likewise proven unworkable when courts and political institutions lack the will to enforce it.

The issue is not just Trump, but the structural incentives that allow and even encourage figures like him to rise. A presidency that blends the roles of head of state and head of government grants an aura of legitimacy and dominance that parliamentary or collegial executive systems diffuse among multiple offices. This makes the executive branch inherently prone to demagoguery, populism, and personalist rule.The concern did not go unnoticed at the constitutional convention. Edmund Randolph objected that the proposed presidency would be “the foetus of monarchy.” Charles Pinkney feared an overpowered chief executive would become “a monarchy, of the worst kind, to wit an elective one.” Benjamin Franklin urged the assembled delegates to carefully consider the issue, “a point of great importance.” But these concerns did not carry the day, perhaps colored by how the delegates debated under the gaze of George Washington, presiding over the convention, understood by all to be first in line to head the new government. It might have been the most consequential decision the convention made, and the test of time has proven it to be a grave miscalculation. 

To address this flaw, reforms must decentralize power within the executive branch and return the partisan policy-making arena to Congress where it belongs. A Westminster-style parliamentary system has its own drawbacks and would be too foreign to the American tradition, but more modest reforms can check the chief executive while preserving our historical attachment to the job title. Drawing from an idea proposed at the convention, and still practiced in New Hampshire and Massachusetts, an executive council could be attached to the presidency, its members chosen by a variety of possible mechanisms. Cabinet secretaries and agency heads should have greater independence for the presidency and greater degree of obligatory instructions in the laws passed by Congress, while still reflecting democratic accountability through the appointment and confirmation process. Fixed terms for key department leaders, along with strengthened mechanisms for congressional oversight, could create institutional resilience against authoritarian impulses.

To have a head of state who is not above the law, it is not enough to have mere words on paper. Powers must be arranged so that the law can be practically enforced on our highest office. The lawless notion that presidents enjoy near-absolute immunity from criminal prosecution must be repudiated, eventually by constitutional amendment if need be, as Biden endorsed in his farewell address. Impeachment should be made a more effective threat, perhaps by lowering the two-thirds threshold required for conviction in the Senate, though not necessarily to a mere simple majority. Officers impeached by the House could also be suspended from office pending the outcome of the trial, as we have just seen used to good effect in South Korea. And within the executive branch, key officials should have not just the theoretical duty but the practical ability to refuse unlawful presidential orders, able to at least tap the brakes until other institutions such as the courts can weigh in. 

Unequal justice 

At the core of our Constitution’s crisis of structural misalignment is the catastrophic decline of the Supreme Court. With lifetime tenure and appointments tied to the happenstance timing of deaths and the partisan gaming of strategically timed retirements, the Court has become unbound from its intended democratic accountability. The judiciary serves as an independent check on the other two branches, and the American model of strong judicial review has accomplished great things. It would be a mistake to throw the baby out with the bathwater. But the Court is still ultimately supposed to be a lagging indicator of election results over time, for president and Senate. This careful balancing act of judicial independence and democratic accountability has been failing to work as intended. And there are good reasons to want reform even if you prefer a more conservative and originalist court, as the status quo both erodes the quality of the Court’s output and fuels a crisis of legitimacy which could ultimately reach a breaking point. And the fix needed is a simple one with support from across the spectrum: ditch life tenure for a lengthy fixed term, with seats coming up on a predictable, known schedule. 

If appointments to the nine-member Court were distributed evenly across presidential terms—say, two per term, with each justice serving eighteen years—the current Court would have a 6-3 Democratic-appointed majority, reflecting that Democrats have won three of the five presidential elections from 2004 to 2020. Of these, one from each party’s president would have been appointed while the other party held the Senate, assuming one justice appointed before and after the midterms. Once common, a justice has not been nominated and confirmed under such divided control in more than thirty years. With seats coming open on a regular schedule, there would be less incentive for partisan obstruction and deadlock over any one nominee. The incentives change when both parties know the shoe will be on the other foot soon enough. By the end of his second term after winning in 2024, Trump would have replaced one Bush and one Obama appointee, resulting in a 5-4 balance, in line with how Democrats will have still won three of the preceding five elections from 2008 to 2024. Under the staggered appointment schedule, no president would appoint more than four justices (except in the unusual case of a two-term president filling a premature vacancy, who would only hold the seat for the unexpired remainder of its term).

Instead, it is quite likely that an outright majority of the Court will soon be Trump appointees, if any two of Alito, Thomas, or Roberts step aside or die in the next four years.  Lifetime tenure also produces justices who cling to their seats far into the infirmities of old age: Thurgood Marshall, Ruth Bader Ginsburg, William Rehnquist, Antonin Scalia. The result is a deeply morbid and unhealthy death watch, as the balance of the Court hinges on the health of fading octogenarians. A fixed term of 18 years would, instead, enable appointment of justices in their 40s and 50s who would serve until their late 60s or early 70s. It would head off the threat of court packing by permanently fixing the number of justices at nine. It would avoid the unseemly open partisanship of justices timing their retirements according to which party controls the White House and Senate, fueling the perception that they are little more than politicians in robes.

And it would cut short the trend of appointing younger and less qualified justices just to hold the seat for longer, instead making the job more like what it should be: the culmination of an accomplished career as a jurist and legal scholar. As it stands, strategic retirements and random vacancies have allowed the Court to tilt sharply to the right, effectively locking in that supermajority regardless of long-term election results. Even for those who tend to agree more with the current Court’s rulings, the resulting crisis of legitimacy threatens the viability of judicial review itself. And random chance could just easily tilt the other way some day, with Democrats coming to enjoy a self-entrenching majority. Court reform in this vein need not be a partisan issue, and has attracted support from experts across the ideological spectrum. It is also, unlike talk of court-packing, popular with the voters. 

This disconnect between the Court’s composition and its intended indirect accountability to election results is not sustainable. The Court’s legitimacy depends on its ability to serve as a stabilizing force, not an arbitrary advantage for one party over the other. Implementing 18-year term limits for justices, with regularly staggered appointments, would restore fairness while preserving judicial independence. It is necessary to align the Court more closely with long-term will of the people in order to maintain its proper role as a check against short-term political pressures.

Our unrepresentative democracy 

The structural problems extend beyond the presidency and the courts. Congress, the supposed epicenter of representative democracy, has become a dysfunctional bottleneck and as a consequence, emaciated in its powers to check the other two branches. These flaws have their roots in how our elections are conducted, the systemic incentives of our electoral system, whose effects are fairly well understood by political scientists. 

Single-member districts and first-past-the-post voting create a system where the two major parties dominate, leaving no room for more fluid competition or coalition-building. The party primary system, run by the government for the benefit of ostensibly private political parties, ensures that most races are decided not by general election voters but by the small fraction of partisans who turn out in primaries. Though we take it for granted, government-run primary elections for party members to pick their nominees are an American aberration, almost unheard of in other democracies. Intended as a democratizing reform during the Progressive era with champions such as Wisconsin’s Sen. “Fighting Bob” La Follette, primary elections were supposed to break open the corrupt smoke-filled rooms of party insiders. But they have instead backfired, severely undermining democracy by super-charging the power of an unrepresentative subset of the electorate.

At the same time, taxpayer-funded government-administered primaries produce America’s uniquely absolute two-party-only system, by lowering the cost of intra-party competition relative to inter-party competition. In other words, it becomes irrational for serious politicians to launch their own competitor party rather than compete in the primaries. The end result is the number of seriously contested primaries far outstrips the number of seriously contested general elections. This is why other nations which also use the first-past-the-post electoral system, with its Duverger’s Law tendency towards two dominant parties, still see smaller parties win some legislative seats, but we do not. In safe congressional districts, the vast majority of them, winning the primary is tantamount to election, making for an uncompetitive ‘market’ for political representation. In 2024, only 33 out of 435 seats were won by margins within five points, amounting to less than 8 percent of the House. This number has been steadily declining for years, and the map for competitive Senate races has similarly been narrowing. 

This system must be overhauled. Proportional representation, ranked-choice voting, increasing the size of the House, fusion voting, and nonpartisan primaries all offer ways to open the political arena to new voices, put some play in the joints of the two-party system, and restore genuine representation of the broader electorate. Any one of these ideas can be debated, but they all share the same broad goal, and experimentation at the state and local level is worthwhile. Here is where our federalist “laboratories of democracy” can shine, providing important lessons and potential models to follow nationwide, while misfired attempts can be discarded. Electoral reform is not a fringe issue; it is the foundation for rebuilding democratic legitimacy and responsiveness. Some reforms can be achieved by statute without the need for constitutional amendment. Others can be enacted by simply giving states freedom to experiment, serving as laboratories of democracy in the search for better systems of representation. Under the status quo, tens of millions of voters are left without a seat at the table, without a representative they voted for: rural Democrats, urban Republicans, independents locked out of the primaries. These voters in large part represent the missing middle of American politics, a greater diversity of opinion and tendency towards moderation than is reflected in our homogenized, polarized election results. The consequences have become dire. John Adams observed that the purpose of a representative legislature is to be “in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them.” Few could look at Congress today and say it fits that description.

A new constitutional reconstruction

As the need for constitutional reform grows more urgent, so too does the temptation to use the moment as a vehicle for enshrining partisan policy preferences. Proposals to radically reshape policy by constitutional entrenchment abound on both the left and right, from universal healthcare to flag-burning amendments. But while these ideas may energize activists, most are unlikely to ever gain the bipartisan supermajority required for constitutional amendments. Worse, they risk turning structural reform into just another front in the culture wars, undermining the broad legitimacy any new constitutional settlement must command.If amendment efforts devolve into partisan wishlists, they will fail. Constitutional reform requires broad legitimacy, not narrow victories. The challenge is to distinguish between the timeless principles that a constitution must enshrine and the temporary preferences that belong in ordinary politics and legislation.The flaws in the American constitutional order are not new, but Trump’s second term will force a reckoning with them. Just as the Civil War and Reconstruction Amendments addressed the systemic failures of the 1787 Constitution, so too must this generation confront the contradictions exposed by modern crises. Doing so would not be a rejection of the Constitution’s principles but an embrace of them, including the original intent of Article V’s amendment procedures. The Framers expected us to amend the Constitution much more often than we have. Not because they were unaware of how difficult the supermajority requirements would be, but because we would meet that threshold through our ability to form sufficient consensus on needed changes. 

A program of serious constitutional reform does not mean discarding the Madisonian principles of checks and balances, federalism, and limited government. Rather, it means applying those principles to contemporary challenges with the same boldness the Framers themselves showed, and was shown again by the authors of the Reconstruction Amendments.

It means reforming the presidency to prevent authoritarian drift and democratic backsliding, modernizing the Supreme Court to reflect a better balance of independence and accountability, and rebuilding Congress to be more truly representative of the American people. It means embracing a radical vision of reform rooted in liberal principles—freedom, equality, and the rule of law—while admitting some outdated structures that no longer serve those ends. A government made by a free people “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Saving the Constitution from itself is not a rejection of its values; it is an affirmation of them. It is an acknowledgment that, as Lincoln said, “the dogmas of the quiet past are inadequate to the stormy present.” The work of building a more perfect union did not end in 1787, or in 1868. It must continue today, if we are to “secure the Blessings of Liberty to ourselves and our Posterity” with a Constitution fit for future generations.

Featured image is Constitution of the United States, by Ian Koski