What is the health of the U.S. Constitution and what can we do about it?
In the lectures I have been giving around the country on the U.S. Constitution, I now begin with a quiz. I ask for a show of hands for each of these propositions:
1. The Constitution is fine, no adjustments needed.
2. Maybe a few clarifications and adjustments.
3. We need a major revision of the Constitution.
4. We need to tear it up and begin again.
5. A constitutional convention in this media and political climate would be insane.
6. We need to lower the amendment bar to make amendment easier.
7. We should probably have a new constitutional convention, but what if the next constitution is worse?
Fifteen years ago most people I met in my travels would have voted for #1 or #2 (we’re pretty much ok), and almost all the audiences I quizzed were quick to declare that #4 (tear it up) would be a terrible mistake, partly owing to #5 (we just aren’t up to it), and #7, (we aren’t up to it!). Back then, people did not think much about the amendment process (#6), mostly because they did not think there was that much that needed to be amended.
Sometimes, when I would tell audiences that Thomas Jefferson believed we should tear up the Constitution every 19 years or so (once per generation), people would laugh with bewilderment or even derision. Some guffawed. Almost all of the legal scholars I met assured me that Jefferson could not have meant it and, if he did, he was a nincompoop.
The audiences I have addressed over the years have reckoned that whatever is wrong with America is not the Constitution. In other words, they believed that the routine legislative process would be the proper remedy for whatever ails us. And they were certain that if we undertook a new constitutional convention, lobbyists and the media would ruin the process. Point taken.
The Engulfing Crisis
Things have changed dramatically. In the past four years, I have taught several courses on the U.S. Constitution (to full enrollment). But in my most recent online course — Vulnerabilities and Flashpoints in the U.S. Constitution — the participants surprised me with how intensely engaged they have become. Anxious. Even alarmed. The people I now meet, in person and online, are certain that something has gone terribly wrong in America. They know that Donald Trump has something to do with it, but they know, too, that the current crisis is deeper and wider than this self-identified disruptor-in-chief. Mr. Trump is as much a symptom as the cause of the calamity.
Congress has been paralyzed for several decades, and it is only getting worse. We are now accustomed to partial or full government shutdowns. Think about this. The most powerful and consequential nation on earth periodically shuts down its government for no good reason. Not to take a sabbatical, but because the two parties cannot agree to pay our bills. In the current crisis, one party wants to fund the Department of Homeland Security with all of its recent corruptions and human rights abuses, and the other wants to force reforms in the behavior of Border Security agents and in Immigration and Customs Enforcement (ICE). The partial government shutdown has affected the lives of millions of innocent airline passengers and, more particularly, has forced approximately 50,000 innocent Transportation Security Administration (TSA) agents to work without pay for more than a month. TSA agents are now apparently being paid with non-appropriated funds, a kind of funny money “solution” typical of our broken system.
For several decades, Congress has failed to pass actual budgets. We operate by continuing resolutions (just extending the current funding levels) or by gigantic (in my opinion, obscene) omnibus bills like last year’s One Big Beautiful Bill, which will add $3 trillion to the already colossal national debt, while cutting an estimated 4.46 trillion in tax revenue.
For decades, Congress has been unable or unwilling to hammer out a desperately needed comprehensive immigration reform package. For decades, Congress has been unable or unwilling to pass a comprehensive national health care reform bill that would ensure that all Americans have minimally equal access to health care — something every other major nation accomplished more than half a century ago.
The List Goes On
The national debt has now reached $38.7 trillion ($200,000 per taxpayer!). The interest on the debt costs $970 billion per year and is rising; the interest alone eats just under 20% of annual U.S. government expenditures. The Democrats are afraid to raise the taxes that would be needed to balance the budget and begin to bring down the national debt, and the Republicans invariably cut taxes a: because it is popular; b: because they argue that cutting taxes feeds the economy and if the economy flourishes there will be more tax revenue; and c: because they say the right thing to do is cut federal expenditures not raise taxes. And so the fiscal crisis deepens, and the interest payments on the debt consume almost a trillion dollars per year that could be used to improve life for the American people.
Something is rotten in the state of Denmark.
Now add in the corruption of the pardons clause of the Constitution (Article II, Section 2), intended by the Founders to show mercy to those who have been unfairly convicted or have suffered enough, but now used mostly for cronies, corrupt campaign contributors, and ardent political supporters, irrespective of their crimes. And the emoluments clause (Article I, Section 9), designed by the Founders to prevent foreign influence on American policy, is now a dead letter given the recent colossal foreign “gifts” (i.e., bribes) to the president, such as Qatar’s May 2025 “gift” of a $400 million Boeing 747-8 luxury jet. Do you think Qatar did this because they love America?
Just two more breakdowns of the Constitution for the moment. First, the impeachment clauses (Article I, Section 2, and Article II, Section 4). We have had four presidential impeachments in American history (Andrew Johnson, William Jefferson Clinton, Donald Trump, and Donald Trump), none of which was successful. In his own time, Thomas Jefferson called impeachment (of Supreme Court justices) “a mere scarecrow.” He was right. We have had 47 presidents of the United States. Surely at least one of them deserved to be impeached and convicted by the Senate.
And finally, the war powers clause (Article I, Section 8). The Founders were so determined to kennel the dogs of war that they declared emphatically that wars have to begin in Congress because war is the gravest thing a nation ever does, and because it is the people who fight our wars and it is the people who pay for them (see my earlier essay ). Beginning with President Truman (June 1950), presidents of both parties have increasingly taken the United States into war without full Congressional authorization. This is a fundamental violation of the Constitution, one of the three things the Founders most wanted to prevent. The current war (adding between $1 billion and $2 billion to the national debt per day) was undertaken by President Trump without bothering to go to Congress (or our closest allies). Nor did President Trump go on national television the way all previous presidents have done to explain the crisis to the American people and make the case for war.
The fundamental principle of our republic — checks and balances, separation of powers — has broken down almost entirely. Congress has had three chances in the last month to pass a war powers resolution and has failed each time. Even if that war powers resolution endorsed the president’s actions as Commander in Chief, it would have included provisions requiring regular briefings with Congress, full transparency, perhaps a limit on sending ground forces to Iran, or a determination of whether a military draft was necessary. But without a war powers resolution, Congress has abdicated its constitutional duty and passively “granted” the president a blank check to hurl mayhem wherever he pleases. George Washington, Dwight D. Eisenhower, and Ulysses S. Grant are rolling over in their graves, not to mention the Father of the Constitution, James Madison.
What Are Our Options?
The United States Constitution is broken. It no longer directs or constrains the government of the United States. If we care about this (I do passionately, and the participants in my courses and lectures now agree), we have only a few options.
— We can throw the rascals out in November. We could retire all 435 members of the House of Representatives on November 3, 2026 (on the 250th birthday of our broken republic), and 33 members of the Senate. That would get their attention!
— We can undertake more pointless impeachments.
— We can call for a constitutional convention. Unfortunately, that requires 34 of the 50 states to pass enabling legislation. Good luck with that.
— Or we can amend the Constitution clause by clause. But here’s the problem with that. Amending the Constitution requires a two-thirds majority in both houses of Congress and then ratification by three-quarters of the states. The last amendment was ratified in 1992, 34 years ago, one of just 27 since the Constitution was ratified in 1787, by people in wigs and buckled shoes living in a three-mile-per-hour world.
I’ve interviewed half a dozen constitutional scholars in the last couple of years. Not one of them thinks it possible that we will have a constitutional convention any time in the foreseeable future (but is the future any longer foreseeable?), and not one of them believes we have the national will or consensus even to pass an amendment to fix any one of our problems.
If this is not a whopping constitutional crisis, what is? To paraphrase a popular vulgarism, we are flummoxed. It’s our 250th birthday. Now is the time to step back and ask ourselves how well we are doing as the world’s most consequential republic, and what it will take to turn this foundering Titanic around.
In Vail, Colorado, the other night, not a hotbed of progressive liberalism, a large majority of the 150 people in attendance (some via internet) voted for #3 (we need major revisions) and #6 (lower the amendment bar). But since we cannot pass an amendment of any sort, how do we pass an amendment to lower the amendment bar? Catch-22, or is it Catch-250?
P.S. — You can join my next online courses on the Constitution. One on how a Constitutional Convention might work and another on rewriting the Constitution for a more perfect Union.