Constitutional Law Center Looks for a “Big Fix” to the US Constitution

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Publish Date:
May 24, 2017
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Summary

Constitutional scholars from across the country recently gathered at Stanford to discuss potential overhauls to the U.S. Constitution. Participants in the “Big Fix” conference, hosted by the Stanford Constitutional Law Center, proposed 27 new amendments in total that were presented over the course of the two days. “Our vision for the conference was to solicit proposed constitutional amendments that were ‘big fixes,’ not tweaks,” said Richard and Frances Mallery Professor of Law Michael McConnell, the faculty director of the Constitutional Law Center.

The amendments fell into seven categories: equality, federalism and local government, rights and judicial power, separation of powers, elections, executive power, and the amendment process itself. In addition to legal and political scholars, four Stanford Law students presented their own amendments in a student panel where they were able to receive feedback from distinguished legal academics.

“This was an outstanding conference that brought together a diverse array of thinkers to debate whether it is time to revisit important constitutional norms. There was an ideologically and conceptually varied array of proposals, and they were all vigorously yet civilly debated,” said William Nelson Cromwell Professor of Law Jane Schacter. Schacter presented an amendment on the fundamental right to vote and provided comments on an amendment regarding judicial power.

After each amendment was presented, another conference participant offered a prepared analysis, followed by general discussion from the audience. At the conclusion of the conference, all participants and attendees were asked to vote on each amendment. While none of the amendments received the necessary three-quarters that would be required if such amendments were actually being considered in state legislatures, four amendments did receive a majority:

  • The aforementioned amendment by Schacter;
  • An amendment by former U.S. Senator and Edwin A. Heafey, Jr. Visiting Professor of Law Russ Feingold on filling Senate vacancies by popular vote (an amendment proposed in the Senate during Feingold’s tenure there).
  • Former Constitutional Law Center affiliate and current Georgetown Law Professor Laura Donohue’s amendment regarding 4th amendment protections for personal data;
  • University of Chicago Law Professor Mary Anne Case’s amendment to insert the Equal Rights Amendment (this was considered and failed several decades ago).

Feingold echoed Schacter’s assessment of vigorous yet civil debate. “It was a unique experience in a country that is so divided to bring together some of the best legal and political scholars to talk about these issues and to see how people would amend the Constitution from both the conservative and progressive side,” said Feingold.

James Davidson (JD ’19), one of the four students who presented an amendment during the student panel, said, “I found the conference to be fascinating. It was great to watch brilliant and opinionated academics who were unafraid to disagree with each other–sometimes vehemently.” Davidson’s amendment dealt with campaign finance reform by letting Congress regulate certain independent expenditures that pose the greatest risk of corruption. He received comments on his amendment from Fordham University Professor Zephyr Teachout. On the comments he received, Davidson stated, “[Teachout’s] expertise helped me understand some of the nuances of the law, and I left the conference feeling like a more seasoned and articulate champion of my amendment and the principles it represents.”

“Virtually all of the legal scholars who participated agreed that the country faces some extremely serious problems not being adequately addressed,” said McConnell. “However, by the end of the conference, it became clear that our proposals—even the most radical ones—did not call for a complete overhaul of our Constitution. That is a testament to the Constitution’s design, and its continuing vitality.”

About the Stanford Constitutional Law Center
The Stanford Constitutional Law Center focuses particularly on the separation and scope of legislative, executive, and judicial powers; the structure of constitutional democracy; the freedoms of speech, press, and religion; and the right of privacy, including the privacy of personal data in a digital world. Founded in 2006 by former Dean Kathleen Sullivan, the Constitutional Law Center is currently led by Faculty Director Michael W. McConnell, Richard and Frances Mallery Professor of Law.

About Stanford Law School
Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, produce outstanding legal scholarship and empirical analysis, and contribute regularly to the nation’s press as legal and policy experts. Stanford Law School has established a model for legal education that provides rigorous interdisciplinary training, hands-on experience, global perspective and focus on public service, spearheading a movement for change.