American democracy is in decline. The problems are many. Scholars and journalists describe mounting media and electoral polarization, widening economic disparities, congressional gridlock, and “hardball” partisan lawmaking, politicization of the federal courts, election subversion, and rural and conservative capture of the state legislatures and US Senate and Electoral College.
John J. Davenport's excellent The Democracy Amendments: Constitutional Reforms to Save the United States focuses on the constitutional roots of this dysfunction. To solve this, the book proposes two dozen constitutional amendments, gathered from “textbooks, scholarly essays, and monographs for researchers and advanced students, and a few important articles” in journalistic periodicals (xiv). In this spirit, Davenport asserts “people from different backgrounds and all manner of professions have made valuable suggestions” for constitutional reform (xiii), recalling the contention from “popular constitutionalism” scholars that ordinary people can solve national constitutional problems (see Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review [Oxford University Press, 2004]).
The book has four chapters. The first chapter traces political dysfunction to four kinds of problems: crises exogenous to the political system; institutional sclerosis that hampers crisis response; partisanship, populism, and polarization; and flaws in constitutional design (5–6). Because these problems are structural, because courts can be captured by elites, and because statutes can be reversed by later congresses, Davenport calls for reform by federal constitutional amendment (17–24).
Consequent chapters propose twenty-five moderate, procedural amendments. The second chapter offers amendments for ranked-choice voting, rotating presidential primaries and open primaries, ending gerrymandering, reforming campaign finance, expanding voting rights, ending the filibuster, reapportioning the House, capping Supreme Court terms, and promoting civics education. The latter is a relatively innocuous proposal which might find traction in state legislatures, while others, such as gerrymandering, are gordian self-reinforcing problems.
The following chapter proposes another fifteen amendments to strengthen American democracy. These include granting representation to Puerto Rico and the District of Columbia, instituting direct presidential elections, limiting pardon power, and imposing federal anticorruption and officeholding standards and civil service protections. Other amendments call for improving the impeachment process, expanding congressional oversight of foreign election interference, clarifying emergency powers and continuity of government mechanisms, lowering veto thresholds, addressing congressional gridlock, instituting quadrennial budget resolutions, clarifying limits on judicial review, and reapportioning the Senate, for example by redrawing state lines.
How to pass these amendments? Admitting the difficulty of passing amendments through Congress, his last proposal is to lower amendment thresholds. This would itself require an amendment (214)—a Catch-22—so in the final chapter, he proposes circumventing Congress by calling for a second constitutional convention to pass these amendments in bulk. There is a certain romance to this idea, which the book expresses nicely.
But the process to call an amending convention is the most difficult among the world's constitutions. An amending convention must be called by two-thirds of the state legislatures and ratified by three-quarters of the states in convention or legislature. This is prohibitively difficult, as state-level data suggests that the public, despite their dissatisfaction with government, fears runaway conventions even more. For this reason, voters have rejected every state constitutional convention call made in the last four decades. Federal amendments and convention calls also uniformly fail—between 1788 and 2020, lawmakers proposed 11,969 amendments and rejected all but 27. Lawmakers know this, and kill viable reforms by switching them onto the amendment or convention track. Conservatives blocked a recent, promising DC statehood bill by counter-proposing a bad-faith, boondoggle constitutional amendment. It is thus puzzling to see Davenport, a proponent of DC home rule, shunting DC home rule, and other viable elections, gerrymandering, and voting-rights statutes, onto the dead-end amendment track. (Davenport notes “we should use ordinary statutes whenever possible” [23] and briefly admits statehood and voting-rights statutes might be more realistic, if subject to congressional or judicial override [23, 93]).
Even so, the book shines in considering not what is probable, but what is possible. The point of political philosophy, to paraphrase Rousseau, is to take men as they are and laws as they might be. The Democracy Amendments offers a thoughtful description of contemporary political problems and a convincing account of how laws might be.
