In the lectures so far, we've been talking a lot about the past of America's constitution. We're going back 225 years to the founding era, 150 years to the Civil War era. We've talked about the progressive era, amendments from the early 20th century, and the 1960s amendments. I'd like to conclude by inviting you to think about the future, to envision the future, to think about America's unwritten constitution in the following way, about the constitution still to be written. About amendments that are yet to be added to the constitution, former written amendments perhaps that will and should be added to the constitution but aren't there yet. Instead of looking back 225 years, let's look ahead. Let's imagine what the constitution should look like in 2020, or in 2121, or in 2222. So if we can think back 225 years, what about if we turn the camera around, and try to think forward 225 years. The unwritten constitution, in the sense of the constitution still to be written. I'm going to try to offer a few thoughts about what I think the constitution of the future will look like, and should look like. [COUGH] Now here are 3 principles that I'm going to sort of put forth from the beginning about the amendments that, that we are likely to see and should see. First, the amendments of the future ideally should add to liberty and equality, rather than detract from it. And why do I say that? because the amendments thus far have done this. The Constitution was more democratic and egalitarian, than what had preceded it. It started with, it was the hinge of history, the big bang that created tremendous Democratic momentum and that momentum has carried through the amendments, the Bill of Rights made the system more free and equal than before. The Thirteenth, Fourteenth and Fifteenth Amendments ended slavery, promised equal citizenship, black suffrage. The Nineteenth Amendment enfranchised women and, the Seventeenth Amendment provided for a more democratic [COUGH] senate, in the progressive era. In, in the 1960s, we got rid of poll tax disenfranchisement. We brought 18 year old, and young Americans in, into the electorate. The amendments have added to liberty and equality thus far, and not taken away from them, with the arguable exception of Prohibition which was a failed constitutional amendment. The Eighteenth was repealed by the Twenty-first. So if we are to be faithful to that constitutional tradition we should embrace amendments that, that, that continue that trajectory. I've just made a methodologically conservative argument for [UNKNOWN] liberal amendments. The people that gave you the constitution and the Bill of, and the Bill of Rights and the Reconstruction amendments and the progressive amendments and the 1960s amendments were freedom loving and liberal and egalitarian reformers of the system. So for example, an amendment that says, marriage must be between one man and one woman, well you could have that. You could do that but that would take away from existing liberty and equality where marriage is not everywhere and always one man and one woman. You could do that but it would be the first amendment, with the possible exception of Prohibition, to cut back on liberty and equality, whereas an amendment that says actually people, everyone is born equal, black and white, male and female, whether you are born gay or straight and therefore gays should have an equal right to marry straights. That constitutional amendment would fit a trajectory of increased liberty and equality. So we could do all sorts of things. We could get rid of the First Amendment in, in a substantial part. We could destroy our constitutional project. We could, m, have an amendment making it a crime to burn the flag. But that would be a limitation on the first amendment and the first one, really, that would be a substantial intrusion on on the right of Americans to, to criticize symbols of public authority to, to express themselves in robust uninhibited and wide open ways politically. So you could do this, you could destroy, you know the constitutional inheritance but if you are faithful to the story thus far I suggest amendments that add to liberty and equality fit the story in a way that amendments that don't, dont. Here's a second claim. America's amendments of the future, are going to, as a practical matter, need to be embraced by both political parties. An amendment generally requires two thirds of the house, two thirds of the Senate, three fourths of the states. This is very hard to achieve unless both parties are on board. We talked about America's partisan Constitution, it's going to play a role in the amendment process as well. You can't get to two-thirds the house, two-thirds the senate, three quarters of the states without both parties being on board. And third, amendments are generally going to reflect the state constitution experience. Almost everything in the US constitution states did first. They had written constitutions first. In the colonial, in the, in the 17, late 1770s, early 1780s, states came up with written constitutions. The federal constitution mimics that. Massachusetts and New Hampshire put their constitution to a vote, Federal Constitution mirrors that. States have 3 branches of government in their written constitutions, Federal Constitution mirrors that. States except for Pennsylvania and, and Georgia have, have bicameral legislatures, Federal Constitution mimics that. Massachusetts has a strong executive and so does New York. Federal Constitution follows the best state practice on that. Pennsylvania and New York have a census, Federal Constitution follows that. Pennsylvania has no property qualifications for many oppositions, Federal Constitution follows that. States have Bills of Rights, the Federal Constitution [UNKNOWN] ,adds one because people think, oh gee. The absence in the Bill of Rights looks striking precisely because states have them on issue after issue. Think about the amendments. States, many of them get rid of slavery before the US constitution gets rid of slavery. Many states let Blacks vote before the US constitution lets Blacks vote. Many states let women vote before the US constitution lets women vote. On issue after issue after issue, states are the laboratories of experimentation. They road test certain ideas first, show that they work here, work in America, and then the Federal Constitution copies them. So 3 principles. Add to liberty and equality at the really Don't take away from it, both parties have to be on board. States are the model, states do it first. So concretely what amendments might you see that would fit those 2? I'll give you a couple of examples and then i'll work through the state constitutional experience a little bit more carefully. Let's imagine an amendment that says that someone who was not born a US citizen but comes to the United States in an early age and naturalized, becomes a US citizen and contributes to society and is very productive after 20 years here or 30 years here is eligible to be president. Today that's not the rule, if you are not born a citizen on your, on the day of your birth, you can't be president. You can be Secretary of State, you can be on the Supreme Court, 3 of the first 10 justices on the Supreme Court were foreign born and 4 of the first 6 cabinet officers for the, Treasury Department, including Alexander Hamilton and Albert Gallatin were foreign born. You can be in the House, the Senate, but you can't be President today, but imagine the amendment that said that you could. Now that amendment would add to the breeding equality, it would expand the birth right equality the idea of the Fourteenth Amendment to even to naturalized citizens. We are all born equal, we are all created equal, but what about people who weren't lucky enough to have been born under our flag, aren't you know, they worthy of consideration? So that amendment would add to liberty and equality. That amendment actually states have [UNKNOWN] .Arnold Schwarzenegger was governor of California and even though he was a naturalized American. Jennifer [UNKNOWN] of Michigan was governor of Michigan, even though she was born a Canadian citizen. Governors look a lot like presidents, I'm going to come back to that. 4 year terms, veto pens, pardon pens, independently elected of the legislature. They're mini-presidents, and states have made naturalized citizens eligible. So states have road-tested this idea to some important extent. So it adds to liberty, equality, states have road-tested it, yes, and both parties in the future might be in favor of this, because for every Democrat who might be eligible, a Madeline Albright, a Jennifer Grandholm, there's a Republican, a Henry Kissenger, an Arnold Schwarzenegger, and the Republican party going forward will eventually have to come up with it's version of a Dream Act. It's going to need to appeal to Hispanics who are swing voters, to immigrant Americans. It can't just say no no no, it's going to have to say yes to something and maybe it's going to say well we don't like the Democrat's version of the Dream Act and we want a big fence and we want an electrified fence and fine, but here's what we actually are in favor of. You come here, you come here legally, you come here fairly and even though you are not born a US citizen, you contribute after 20-30 years. You are eligible now to be President. The Republicans are going to say -That's our version of the Dream Act! And why do I say that they're going to find it in their interest to do so? because as a political scientist, I look and see that they're going to need to appeal to that demographic coalition, or else be doomed to a minority status after 6 or 7 years. because after, you know, maybe they can win a couple more elections, but going forward after 2020, they're going to need to have their version of the Dream Act. Who proposed a constitutional amendment to let foreign born Americans who naturalized Americans after many years of service to be presidentially eligible? You would be shocked to hear that it was Orrin Hatch, conservative Republican senator from Utah who proposed that constitutional amendment in 2003. I think he probably still believes it. I testified on behalf of that, and then when he held hearings on that. And Democrats supported him, imagine that. Democrats and Republicans were actually beginning to agree on something. Now the Republican party more recently, has been very skeptical of, of, of, certain appeals to immigrant Americans and so Hatch has, has kind of put that idea on the back burner [UNKNOWN] to worry about a Tea Party challenge, in Utah, but I suspect deep down, he still believes in that verse in the Dream Act and don't be surprised if he revives it. It fits our 3 themes. It adds to liberty and equality. States have road tested a version of this idea first by allowing naturalized citizens to be governors; Jennifer Granholm of Michigan, Arnold Schwarzenegger of California, and I could imagine easily a world in which both parties might find it in their interests to do this in the same way than in the middle of the 20th century. Who are the swing voters? Not so much Hispanics, in the middle of the twentieth century is Blacks. Before 32, Blacks voted Republican in general. After 1972, Blacks voted Democrat in general, but between 1932 and 1972, they are the swing constituency. Both parties are appealing to them, both Republicans and Democrats and we have a series of amendments and we have a series of amendments that actually help African Americans distinctively. Letting young adults vote. Young adults are disproportionately nonwhite. Giving some special doing some things for DC in the electoral college. DC is a largely black city. Getting rid of poll tax disenfranchisement for certain federal elections. This poll tax disenfranchisement that had been used especially against African Americans. So between 32 and 7, 1932 and 1972, several constitutional amendments where both parties are vying for the African American vote. Well, going forward both parties are going to be vying for the Hispanic vote, so that's a prediction. You could see that, that, that amendment because both parties might be in favor of it. States have road tested the idea first as to liberty equality. I could imagine an amendment move abolishing the Electoral College, which remember, is rooted in slavery moving toward one person, one vote. Why could I imagine that amendment? because it, it adds to equality. It vindicates the idea that everyone's vote should be counted equally, whether you're in Florida, Ohio or Wyoming or, or California or Rhode Island. Everyone's vote counts equally. It's an egalitarian idea. States have road tested this idea. That's how we pick governors. We don't have a little electoral college in Texas, in California, in Pennsylvania. Call this crazy, but here's how we do it in each state. We count the votes and if it's close, we recount them carefully. That's how, that's how we roll in New York. That's how we roll in Texas and states have road tested this idea. Both parties might be in favor of it, because actually, left to a college state, is not skewed in favor of either the Republicans or the Democrats. Yes, the electoral college ended up helping George W Bush against Al Gore in 2000 But in 2004 but in 2000 it might have helped Gore, people were predicting the week before the election that Gore might win the electoral vote while losing the popular vote. That could easily have happened. In 2004, Kerry lost the popular vote by 3 million votes to George W Bush but if he had carried Ohio he only lost it by 50,000, he would have won the electoral college. In 2012, Barack Obama the month before the election some people said he could lose the popular vote and still win the electoral vote. The electoral college isn't skewed in favor of either the Republicans or the Democrats. Sometimes it favors the Republicans on election day Sometimes the Democrats just kind of, it's like a, a fair deck of cards with two jokers, one red, one blue, they pop up every so often. And the person who wins the popular vote loses the Electoral College. But it's not skewed Republican or Democrat. So I could imagine both parties actually eventually support move to one person, one vote. So both parties might support it, it's possible. because the current system doesn't favor either party. And it adds to equality. It vindicates one person, one vote, which is an egalitarian idea, a Warren Court idea. And states have road tested this, in effect, by the way they, they pick Governors. By the way, the reason the electoral college doesn't really favor either party. Democrats tend to win most of the biggest states, 7 of the 10 biggest states, 6 of the 10 biggest states and because of winner take all, that's a huge bonus. So they win most of the big states, Republicans tend to win more states over all especially states that have low populations, big and in those low population states get extra electoral votes because every state has a minimum of 3, no matter how few people it has, it has 2 senators and a representative. So because of that Republicans win more states, so they have a little bit of an advantage that way, Democrats win more big states. Winner take all and these two basically, roughly balance out. These 2 countervailing biases basically balance out. That won't always be true in American history. It hasn't always been true. But right now is a particularly interesting window for possible reform, because, I think the current system doesn't favor either party. So, both parties might be open to it. And book chapter of America's unwritten Constitution when I talk about this, I'll also explain how we could get to move to direct election of the presidency without a formal Constitutional amendment. I am not going to be able to go into that here but if you are interested check out the chapter. It turns out they're, they're, it's not just one way of doing it. There are several ways, in fact of moving to direct election of the presidency without a formal constitutional amendment. Now remember my 3 principles. Both parties are going to need to be on board. Ideally we should have, thinking of amendments that add to liberty and equality. And states have to road test ideas first. Let me come back to that third idea. Let's look at state constitutions more carefully, and take a look at the ideas that they road tested. because here's what's amazing. When you look at the 51 American constitutions, the one Federal Constitution, the 50 state constitutions. We find strikingly, there really is an American way of doing things. American exceptionalism, if you will. In 10 different ways, virtually all our constitutions, state and federal, are quite similar to each other, there's a kind of a basic American model, in ways that make us different from at least one or, more major advanced constitutional democracies sort of elsewhere in the world. So they're a whole bunch of things where all the, or virtually all the American constitutions, fifty one of them, look pretty much the same. Then what is really interesting is, on each one of those similarities it turns out some states, some or many of the states have varied a little bit form how the federal government does it which creates all sort of interesting possibilities for reform. So, let me tell you the 10 similarities. So, written constitutions. 50 state constitutions are all written. Federal Constitution. All of these constitutions reflect some special idea of popular sovereignty, above and beyond an ordinary legislature just passing an ordinary statute and calling it a constitution. Now that makes our system, that's every state that's the Federal Government, that makes our system different than England that doesn't have a written constitution or Israel for that matter. Virtually all the 51 have bills of rights that are typically in a separate section of the document and are judicially enforced Wasn't true of Britain til recently. Wasn't true of Australia for example. third, bicameral legislatures. 2 branches, except in, in Nebraska with fixed legislative terms, not to a variable term. In England, basically it's a one branch. It's pretty much House of Commons in the legislature and it's not a fixed term it actually can can vary, you don't know exactly when election day is going to occur. Anytime there's a vote of no confidence you can have an early election if the opposition causes the downfall of the ruling coalition, the ruling coalition can call an early elections called the snap election if it thinks that the, that, it, it, if there's an advantage of doing so. That's not our, system. But our system is bicameralism fixed legislative terms. now, we have single, in the fourth similarity, single member districts. In most of the state legislatures, with 2 parties, not a proportional representative system. The same 2 parties everywhere pretty much Democrats and Republicans. That's different than multi party systems that you see in a lot of other countries, Italy, Israel, New Zealand, Germany, they have proportional representation systems, that's not quite what we have. We've got a strong presidentialist system, with all 50 states have a governor who's elected independently of the legislature, and serves a fixed term. It's not like a parliamentary system where in England or, or other, other places where the legislature picks the, the head of the executive branches, not sort of our system at the state level, or the federal level. Sixth, we have a constitutionally specified Presidential executive understudy, the, the Vice President. Lieutenant governors in most states that's just not true of who has sort of his own term of office 4 years typically just as governors are typically 4 years. And, and governors, by the way, have pretty much very similar powers to presidents, a veto pan, a pardon pan, this lieutenant governor or vice president has a constitutionally specified office, he's the next in line constitutionally. That's not true in a parliamentary system. If something happens to the prime minister, there's not someone who's officially predesignated always as in the constitution as the person who will be next in line. We've got a system of judicial review in which every court can enforce the Constitution, the state constitution and the Federal Constitution. That's not true in a lot of parts of the world that have one and only one court called the Constitutional Court that enforces the constitution. We've got a particular blend of judicial independence and political accountability, that's very different than the way the rest of the world, much of the rest of the world picks judges we've got a system of Common law adjudication where state and federal courts all have certain powers to, to recognize rights and legal rights and duties on their own, by creating a thing called a kind of judge made law called common law, juries are an important part of our system. That's not true in all the rest of the world, it's not true for example, the rest of the world has a common law system. France doesn't. So, 10 profound similarities between the state constitutions and the Federal Constitution. There is an American way of doing things. A basic American model, American exceptionalism. Now my final lecture, I'm going to take you back to that list of 10, and show you how on each one of those similarities, at least one state, maybe a bunch of states actually does things slightly differently. And that's going to create really interesting set of reform questions for the future. When states do it a little differently than the Federal Government, here's the question. Should states change their policies and conform more tightly to the federal model? Or should the federal model actually be modified to, to line up with what the states are doing. Or can we tell some sort of story that we already live in the best of possible worlds. It is good that the federal government and the states do things differently because they have slightly different functions. But now we have a really interesting set of issues that we have for the constitution of the future that I'm going to explore with you in the next lecture. By looking carefully at the State laboratories, the State experiments, we can try to think about what possible future Federal reforms, or State constitutional reforms, might be in the cards. So that's what we're going to do in the final lecture of, of from this book. Stay tuned. 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