Proposed Rule of Law Constitutional Amendment

Abstract

In April 2020, I posted on SSRN a proposed draft Voting Rights and Reform Act of 2021, and in August 2020, I posted a set of proposed constitutional amendments to reform the U.S. Supreme Court, the office of the U.S. Attorney General, issues relating to the inability and succession of the President, and other matters. My original versions of those proposals were colored by my expectation that Democrats would prevail in the campaign for the White House (which has occurred with President Biden’s victory) and that Democrats would also win solid majorities in both Houses of Congress (which has not occurred). I have now recalibrated the proposals in light of the closely divided Congress that has taken office in 2021. To see my “Proposed Voting Rights and Reform Act,” see the paper posted here on SSRN as cited in the downloadable PDF file. That proposal draws upon Congress’s underused constitutional power under Article I, section 4, clause 1, to regulate the “Times, Places and Manner” of elections to the U.S. House of Representatives and Senate. My sincere hope is that these proposed draft constitutional amendments may be able to garner broad, consensus, bipartisan support, and may help provide a partial path forward in the nation’s deeply polarized and even paranoid current political culture. They may at least help stabilize and restore trust in the Supreme Court and the Attorney General as guarantors of the rule of law, and in our process for electing the President. The main addition to this revised set of constitutional proposals is a draft amendment to preserve, but also reform and modify, the Electoral College. Much of that proposal could also be effectively adopted as an interstate compact approved by Congress, if enough states could be persuaded to join. Either such a compact or such a constitutional amendment would obviously depend on persuading both Republican and Democratic partisans that they have a sufficiently strong common interest in agreeing on certain basic reforms.