The Four Worst Defects in the US Constitution
Fixing them won’t cure everything, and not right away, but it’s a start
The Constitution has lasted for 250 years, but those years have shown that it still contains serious defects. Can they be repaired? So many people agree that it is impossible to pass any amendment, that the short answer is “No”.
The Consitution is easier to change than it’s predecessor, but that’s not saying a lot. The Articles of Confederation, which defined the US government from 1779 to 1787, required unanimous agreement from all 13 states on any changes. The Constitution that we’ve had since then requires “only” a two-thirds vote in both houses of Congress, followed by ratification, which requires approval from three-fourths of the states (38 out of 50).
The most recent amendment, the twenty-seventh, which prevented Congressional salary changes from taking effect until after then next election of the House of Representatives, achieved ratification and took effect in 1992, 34 years ago. The Equal Rights Amendment was introduced in 1923 and passed by Congress 49 years later; after 103 years it has still not been ratified. The amendment process is clearly deadlocked with no obvious way out at this time. But times can change. So just to get some directions on the record, here are the four most important things that need to be fixed.
Unlock the Supreme Court
The Supreme Court is the apotheosis of the excessively powerful, unaccountable “unelected government official” that conservatives used to decry. Justices are nominated by the President and confirmed by the Senate — no elections involved. The Constitution gives them “supreme” power to reinterpret laws passed by Congress and veto actions of the Executive Branch, with no further recourse. Individual justices serve “during good behavior,” which has been interpreted since the beginning as life tenure, revocable only by retirement or impeachment. The court, self-servingly, has had no objection.
In the time when the Constitution was written, 1790, the life expectancy of a 40 year old man was about 35 more years, so a newly appointed Supreme Court Justice at age 50 with life tenure might expect to serve for 25 years. Modern medicine has extended that life expectancy by another 10 or 20 years, leading to a stagnant court.
As of 2026, the current group of Justices has been together for 11 years without any new members, longer than any previous group. In an age when changes in society are rapid and chronic, long term appointments promote consistency and independence, but excessively long appointment terms lead to decisions based on outdated assumptions and crowded memories with little room for new perspectives.
There have been many proposals for limited terms for Supreme Court justices. Thomas Jefferson, for example, denounced life tenure as wholly inconsistent with our ordered republic. Accordingly, he proposed renewable terms of four or six years for federal judges. To put that in perspective, members of the Board of Governors of the Federal Reserve System serve for fourteen years. A term of eighteen years seems sufficient for any Judge or Justice.
The goal of term limits is to make the court more resilient against ideological and political influence and ossification by refreshing its membership from time to time. That resilience could be made even stronger by electing justices from appellate courts and by those appellate justices rather than allowing the president to nominate anyone he pleases, eliminating the opportunity for an unscrupulous president to nominate inexperienced ideologues. Stability arising from diversity of experience could be further enhanced by rotating candidates from among each Circuit Court of Appeals.
Rebalance Senate Representation
The United States originated as a federation of independent colonies. In order to motivate those colonies to join together into a single nation, they were given separate representation in a Senate with equal representaiton for each one. The distinct character and interests of each state was ensured by the difficulty of transportation across interstate distances. Two hundred and fifty years later, technology has made the natural size of a cultural and economic unit far larger: the megalopolis between Boston and Washington operates in a unified way that makes the eight states that it spans into largely irrelevant details.
That transportaton-enabled expansion in the scope of a single unit of American culture is reflected in the expanding disconnect between population and area that occurred as states were added to the union, so that vast, little-occupied regions such as Montana and New Mexico were given the same representation as relatively tiny states such as Delaware. Landowners in unpopulated states have vastly more power than citizens of densely populated states. Unless your definition of “fairness” means “I get to do what I want, and you don’t”, this is manifestly unfair.
Representation in the Senate needs to be restructured on the principle of “one person, one vote.” The simplest change would be to eliminate the Senate entirely, but this would also remove the stability provided by a second smaller body with longer terms of office than a huge single-chamber Congress of two-year members. Keeping the Senate, but reorienting it to represent people rather than land could be accomplished by providing one senator for each two million people, and retaining the minimum of two senators per state, retaining the at-large representation where every Senator represents the entire state, and retaining the six-year terms. With a US poopulation of 345 million, that would give a larger Senate than we have now, with about 175 Senators. California would have 20, and Texas would have 15 Senators.
I’m attracted to a more radical redesign, that would retain the balance of a large House of Representatives with short terms of office, and a smaller Senate with longer terms. This design would designate thirteen regions of equal population, in memory of the thirteen original states. They could be based roughly on the “American nations” research of Colin Woodward, with the addition of non-contiguous representation for native americans in the former Indian Territory of Oklahoma, Navajoland in Arizona, the Pueblos of New Mexico and the 229 recognized tribes in Alaska, and representation for non-state territories such as Washington DC, Puerto Rico, and the pacific island territories. The establishment of regions larger than the historical States would preserve the distinct cultural characters of their areas, while correcting the changes in scale that evolved as the Union grew and newer states became much larger than older ones. Each region would provide four Senators, giving an elite body of fifty-two members. Senators would serve for up to three terms of 6 years each. Regions would be designated by agreement of the states encompassed by them, with anti-gerrymandering provisions that limit regional boundaries to existing state boundaries, or to new boundaries that must be straight lines or prominent geographical features such as rivers and mountain divides, and with the limitation that the longest midline length of a region must be no more than six times as long as its shortest diameter.
Eliminate the Electoral College
Once both the House and Senate are representative of population and not land or historical accident, there is no need for the baroque structure of the Electoral College. The President and Vice President shall be elected by the majority of eligible voters nationwide. With 174 million registered voters, the likelihood of ties is so miniscule that elaborate tie-breaking procedures become unnecessary and would be eliminated as well.
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The US is already well on the way to popular election of the President without waiting for a Constitutional amendment, via an Interstate Compact for a National Popular Vote. Interstate compacts allow US States to make agreements with each other without any need for Congressional legislation, although consent of Congress may be required for a compact to become finally effective. The National Popular Vote Compact provides that each state allocate its Electors according to the outcome of the national total, which would make the Electoral Collage a redundant formality that could readily be abolished. It will take effect when it becaue agreed to by states representing a majority of the 270 Electoral College votes. In July 2026 it has obtained 85% of the necessary votes. Each election in which the Electoral College becomes obvously unrepresentative of the national consensus brings the compact closer to implementation.
Term Limits and Age Limits for All Federal Offices
The Constitution only specifies term and age limits for the President and Supreme Court, so it is not strictly necessary to have an Amendment to set these limits: they can be specified by law in the usual way. However, laws can be repealed or altered relatively easily; we would like to have limits that are more difficult to change.
Most appointed officers serve “at the pleasure of the President” and are likely be replaced whenever a new President comes into power regardless of any required limits. For elected officials, however, our systems of nominating them and selecting winners have shown that they can be exploited to re-elect officeholders essentially indefinitely, regardless of their capacity to serve effectively, as long as they are physically able to show up and vote.
Term limits should be defined to limit terms of service to 25 years or less, regardless of the length of individual terms.
It is difficult, if not impossible, to objectively assess the mental abilities needed to perform legislative, executive, and judicial roles, so we simply define eligibilty by age. Just as we do not accept personal assurances that “I can do it” from children and teens, we should not accept similar assertions from aging officials whose ability to judge their own abilities may be the first functions to deteriorate as they get older. Treating everyone equally inevitably means that exceptionally capable people will have their abilities unrecognized and stifled; that’s a limitation that we should accept as a cost of universal democracy.
Age limits should be defined based on objective criteria that apply to the population at large; being elected or appointed to public office should not constitute an exemption to the retirement rules that apply to the rest of us. Social Security and Medicare eligibility ages represent convenient benchmarks, yet no one should be considered instantly incapacitated upon achieving retirement age. Medical studies have found that mental decline typically precedes death by 4–7 years, so if the population’s life expectancy at retirement age (65) is about age 83, then the mandatory retirement age should be 77. As medical progress continues, lifespans should correspondingly increase, so this age should be adjusted at 10 year intervals, in coordination with the decennial census results.
Bonus: Open the Two-Party System with Preference Voting
Aside from the Twelfth Amenndment defining Electoral College procedures, and the Seventeenth Amendment providing for direct election of Senators rather than their appointment by state legislatures, the Constitution is silent about how federal officials are nominated and elected. Our two-party system of conventions and primaries is defined entirely by individual states and by the political parties themselves. But this means that the system can be more easily and incrementally changed, without having to suffer the crisis levels of dysfunction that are needed before a Constitutioal amendment can be proposed and ratified.
This system for selecting candidates has been shown to simultaneously create stasis and chaos. Conventions and primary elections limited to party faithful tend to nominate more extreme candidates on both sides. Then “winner take all” elections mean that when the incumbent party changes, its policies are suddenly and drastically reversed. Moderate, centrist policies that are agreeable to the majority of voters are never given a chance as the government thrashes from one extreme to the other.
Many schemes to reduce the expanding extremisms that this system leads to have been proposed, and each has its advantages and disadvantages. But they all share the property of allowing voters to specify more than one candidate as tolerable, while still selecting a personal favorite. When candidates can improve their own chances by advocating policies that may attract voters for whom they are not the first choice, the benefit of attacks on those voters’ first choices is reduced.
Individual election jurisdictions can choose their own specific method of ranking candidates and selecting the most popular one. Every additional change to preference voting of some sort or another reduces the polarization of campaigns, and moves the country away from rule by extreme minorities, and towards the rule of the consensus that is the essence of democracy.
If the Constitution can’t be fixed, then what?
If repairs to the Constitution don’t happen, then there are three possibilities: the situation will improve, it will stay the same, or it will get worse. Incremental improvement seems unlikely: the authors of the Constitution tried to build in defenses against the tendencies for politicians to overstep their power, but the damage that Trumpist Republicans have done to the good faith assumptions they made is probably irreparable. Article V of the Constitution provides a way to call a convention of the states to rewrite itself, and although prominent politicians such as the Governor of Texas have endorsed the idea, there’s no way to prevent a convention from deciding that the first thing it will do is to reject any constraints its sponsors may have imposed, and making massive revisions that will do more damage than they remedy.
Second, the US will continue to muddle along as it has been doing, chaotically swinging from one set of policies to their opposites as opposing parties alternate control. Everyone will be unhappy, economic growth will decline or reverse, and the US will lose its dominant position in the roster of global countries.
In the worst case, the Federal government will degenerate into a series of autocracies with a facade of election results fudged by corrupt officials, and impotent laws established by a compliant Congress and courts, enforced depending on the latest whims of the bosses, who are virtually at war with the governments of recalcitrant states and local governments that insist on preserving the prerogatives of democracy and the rule of law.
After all, autocracies are simpler than democracies: people simply do whatever the big boss says, and otherwise they are free to do whatever they can get away with. With 21st century surveillance technology, “what they can get away with” increasingly depends on the implicit consent of the bosses rather than escaping their control.
In a democracy, citizens have to consider the welfare of the other members of the nation. This is considerably more difficult. But it puts citizens in charge rather than bosses, and many of us prefer it that way. Whether there are enough people who are willing to put out that extra effort so that “government of the people, by the people, and for the people” survives in the 50 United States remains to be seen.
