It’s common for Americans to laud the Constitution as the apex of democracy, a blueprint for governance that can never be improved upon.

Despite the founders’ intent to create a nation that was welcoming to those of all beliefs, an aura of awe and majesty has been superimposed on both those founders and the document they produced. They’re seen as prophets of sorts, and the Constitution they produced as holy writ: inspired and inerrant. To question it, or them, is seen as unpatriotic.

This, of course, ignores the fact that the founders themselves disagreed on a number of issues, and that they built in a mechanism to change the Constitution. This assumes they knew it wasn’t perfect and would need to be amended if circumstances changed or flaws emerged. And both things have, unquestionably, happened.

There have been 17 amendments on top of the original 10, and one of them repealed another. (The 21st Amendment nullified the 18th, which had created prohibition.

In a country where one-quarter of us believe that the Bible is the literal word of God, and nearly half believe it’s “inspired,” it’s hardly surprising that this way of thinking has been applied to the Constitution, as well. Both are foundational documents, and both have accrued to themselves an air of reverence that they may or may not have earned.

Foundational documents are important, and should be recognized as such. But the there’s a tendency to put them on such a high pedestal that we begin to worship these documents themselves, forgetting they’re a means to an end. Meanwhile, we view the founders as secular prophets, channeling some divine plan for “one nation under God.”

We struggle to decipher the “intent of the founders,” though they may have left their intent unclear through vague wording, and though they certainly couldn’t have envisioned how the modern world would operate. Hebrew scribes who forbade the consumption of pork in an era before refrigeration had a point: Botulism isn’t fun. But that’s no longer an issue in the modern world — at least not one that would merit a blanket ban.

Corporate donors, the internet, and automatic weapons were unknown in their time, and there’s absolutely no way of knowing how the framers would have responded to any of these things if they were writing the Constitution today.

They knew their document wasn’t perfect, and the imperfections have become clear to objective eyes as time has passed. (Slavery, anyone? Women’s suffrage?) We can’t expect a 250-year-old document that wasn’t perfect in the first place to be perfect today.

So, in the spirit of constructive criticism, I’m going to go through the Constitution and its first 10 amendments, and pick out some foundational ideas that just don’t work as well as they used to — if they ever worked at all.

Article I

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States...”

This was written in an era when a representative’s two years in office were devoted largely to governing. These days, much of their time is devoted to raising money for a continual campaign for re-election. It’s hard to imagine that the founders envisioned — or would have condoned — the role of money in governance ratified by the Supreme Court in Citizens United.

Senators were paid just $6 a day at first for what was then a part-time job (“Congress shall assemble at least once in every Year...”). In 1815, the salary rose to $1,500 a year — roughly equivalent to $25,000 in 2021. That compares to $174,000 a year today.

The founders also saw Congress as a check against the power of the presidency. They’d be turning over in their graves if they could see how the two-year term, combined with gerrymandering, has made them hostages to the whims of a vindictive chief executive.

Three things could be done to fix this:

• Lengthen House terms to three years.

• Establish nonpartisan electoral commissions to redraw congressional district lines in all states, rather than allowing members to create gerrymandered “safe” districts for themselves.

• Amend the Constitution to specifically limit the length of the campaign season and the amount of money that can be raised/spent on campaigning.

Article II

The Electoral College

Section 1, which lays out how a president and vice president are be chosen is by far the longest section of Article II, and about half of it has been superseded by later amendments... All of which indicates that the framers weren’t entirely sure what they were doing. They were creating a mechanism that operated independently of any branch of government, which would operate on a temporary basis once every four years.

The rise of political parties created an embarrassing situation in 1800, when Thomas Jefferson and his running mate, Aaron Burr, both received the same number of electoral votes for president, and the House had to sort things out. This led to the passage of the 12th amendment, which recognized the need for electors to “name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President.”

At least in this case, lawmakers realized they needed to adjust things to account for the rise of partisan politics — something they failed to do in other instances (see below).

The Electoral College was meant to be a buffer between the popular vote and the presidency. It wasn’t the only example of this: The framers initially entrusted state legislatures, not voters, with the responsibility of choosing senators. But the 17th amendment eliminated this role for the legislatures, transferring that power to the people, directly.

Unfortunately, the same concept has never been applied to the presidency, directly contradicting not only the basis of the 17th amendment but the broader principle of one person, one vote.

“The President shall be Commander in Chief of the Army and Navy of the United States...”

Is this really a good idea to invest such power in one man? It should be noted that the founders had no way of knowing the extent of this power when they wrote this. The United States was, at the time, decidedly not a world power. Today, it’s the most powerful country in the world. Endowing that kind of power in a single man is scary.

The fact that the first president was originally a general may have informed this decision, but most presidents have no military training.

A more responsible decision might have been to create a military council consisting of the president, the president of the Senate, and the speaker of the House.

“The President shall... have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.”

From a group of men (they were all men) so interested in the separation of powers, this phrase is a glaring contradiction. They were basically giving the president the power to nullify court decisions. The abuse of this power to reward allies or entice them to remain loyal reached its apex with Donald Trump, but it was never a good idea.

The courts aren’t perfect, but to suggest that someone in a totally different branch of government —with (typically) no judicial training or involvement in the original court proceedings — is a more fitting arbiter of justice is a notion that borders on the absurd. It’s also incredibly irresponsible.

“The President... shall appoint... Judges of the supreme court.”

Again, giving the president this power makes no sense. The Constitution gives both houses of Congress the power to elect their own officers, so why not give the circuit courts the power to nominate Supreme Court justices and confirm them, based on a vote of the majority of those circuits?

Placing such power in the hands of a single elected official with, likely no judicial training, makes no sense as a practical matter, and creates a massive conflict of interest. The fact that these are lifetime appointments only magnifies the political impact on an institution that’s supposed to be inherently apolitical.

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

This was written during an era when Congress stayed in recess for months at a time, and it wasn’t practical to wait for senators to get back before making an appointment. In one instance, Congress adjourned at the beginning of March in 1793, and a new Congress didn’t begin until December: a total of 275 days.

The point being, recess appointments made a lot more sense then than they do now.

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Virtually every commentator today will tell you that impeachment is a political process, not a judicial one. But if you’re punishing someone for clear malfeasance, should partisan officials be responsible for passing judgment on someone from their own, or the opposite, political party? Isn’t this a blatant conflict of interest?

Of course, it is. But the founders wrote this section before political parties even existed. They didn’t even like the idea of political parties.

Having elected bodies act as both prosecutor and jury for impeachment proceedings makes absolutely zero sense in a partisan world. It would have been far better for Congress to bring charges, but for the courts to decide their merits. This would reduce the threat of frivolous charges being brought by any aggrieved citizen, but it would also de-politicize the ultimate verdict.

Second Amendment

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

This is a case of one awkwardly worded sentence creating centuries of confusion. However, any rational interpretation has to admit that the right is being granted for a specific purpose: not for personal self-defense or to go hunting, but for use by “a well regulated militia.”

The framers could have spared everyone a lot of headaches by writing it differently. Here are some ideas:

“The right of the people of a free State to keep and bear arms as members of a well-regulated militia shall not be infringed.”

“The right of the people of a free State to maintain a well-regulated militia shall not be infringed, and neither shall the right of that militia to keep and bear arms.”

Or, if that’s not what they meant, they should have simply said, straight up, “The right of the people to keep and bear arms shall not be infringed.”

Sixth Amendment

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...”

Everything’s relative, and the framers neglected to state a definition of “speedy,” which renders that mandate all but meaningless, as evidenced by the drawn-out nature of so many modern legal proceedings.

Eighth Amendment

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

More vague wording. What constitutes “excessive”? And are “cruel” punishments fine if they’re not “unusual”?

None of this is to suggest that the Constitution as a whole wasn’t an amazing innovation for its time, or that it’s obsolete today. It’s more an indictment of those who insist on reading the Constitution as somehow sacrosanct, refusing to revisit its contradictions and ambiguities, and interpreting it as though it were still 1787.   

Stephen H. Provost is a former journalist and author of three books about the Trump presidency, available on Amazon at www.amazon.com/gp/product/B08RC7L8X1.