Third Time‘s The Charm
A Third Founding could cure what ails america, despite the steep hurdles it would face
It’s pretty obvious the United States system of government is facing the greatest stress-test since the Civil War. Trump and Musk are running roughshod over established norms, traditions, and, oh yeah, actual laws.
Our once-deemed structurally sound institutions are now revealed to be anything but. Social trust is eroding, and democracy itself is on the chopping block.
Trump is not the cause of these issues, although he and his malicious henchmen sure aren’t helping things. Trump is a symptom of the lack of faith the American people have in how the United States works. A recent poll by Quinnipiac University found that fewer than 4 in 10 voters think the system of checks and balances between the executive, legislative, and judicial branches of the federal government is working well, while more than half of voters think it is not working well.
And the skeptics are right, for the most part! Congress is supine before the executive branch, while the judicial branch moves too slowly in a constitutional crisis. Waiting for plaintiffs to be harmed, finding the right venue, establishing standing, and on and on might eventually address the harm done, but it does nothing to prevent the harm in the first place.
It's time to admit that the Constitution no longer meets the needs of a 21st-century nuclear-armed power with a population of almost 350 million people.
If America is to endure as a Constitutional Republic, it urgently needs a Third American Founding—one that reins in the imperial presidency, strengthens the electoral system, and makes the founding document more responsive to the realities of the 21st century.
How it Started
Most people are familiar with the Schoolhouse Rock version of the American Revolution, which — spoiler alert — we won and drafted the Articles of Confederation and then, when that proved unworkable, the Constitution, which was ratified in 1789. With it, the Founders established the structure of the Republic—the First Founding.
Now, the Founders had a lot of flaws, and the original Constitution had (and still has) some odious and unfair aspects. It attempted to balance state autonomy with federal authority, but also included the Three-Fifths Clause that enshrined the compromise on slavery in the document and left unresolved economic and regional tensions. A scant 4,543 words (by far the shortest national document of any modern democracy), it handwaved a lot of structural details and limited the power of the federal government, but left out any mention of “positive” rights like the right to housing or a decent wage.
Yet, for all these shortcomings, it’s important to recognize just how radical the idea of a self-ruling constitutional republic was in the 18th century. It “beautifully articulated the notion that government’s power flows from the people” and that political legitimacy came from the consent of the governed and not from a diety or bloodline. These were dangerous ideas back then, and the monarchs of Europe knew it.
But the document also excluded non-whites and all women from political participation and sowed the seeds for the Civil War. The First Founding established the structure of the federal government and demonstrated the potency of the idea of “power from the people.” Reconstruction and the 13th, 14th, and 15th Amendments redefined who was a citizen and changed how the government related to its citizens by abolishing slavery, establishing birthright citizenship, and aiming to protect voting rights.
Before the Civil War, citizenship and rights were primarily controlled by the states, but this trio of amendments expanded the federal government’s authority to protect individual rights, so this was a profound change in the nature of American federalism and what is often called the Second Founding.
How It’s Going
As expansive as the Reconstruction Amendments were, struggles over state and federal power and between democratic expansion and suppression remain a serious challenge to the viability of the American Experiment. These tensions are why a Third Founding is necessary to ensure the durability of democracy in the modern era.
The Founders distrusted popular democracy and wanted to avoid tyranny from both a king and an impulsive majority. They fretted over factionalism, mob rule, and worried that their fledgling democracy would unravel in the face of emotional populism. (Turns out they were right!)
Yet, America today is not the America of 1789. The electorate is more informed; there are 250 years of institutional norms, frameworks, and democratic evolution. We also have a vastly larger and more diverse population, international reach and responsibilities, and the ability to do great things or even greater harm.
And yet, we’re saddled with a five-page document tailored for an agrarian society of fewer than 4 million people. We have the antiquated Electoral College, which was designed to prevent regional majorities from overpowering the nation, but which now distorts our political process by making seven states the deciders. The Senate disproportionately represents smaller, less diverse states, and the lack of term limits on the Supreme Court means ideologically sclerotic justices are entrenched.
And most urgently, the office of the presidency has grown into something the Founders would have never recognized, much less countenanced. The whole point of the Revolution was “no more kings.” But now, small and evil men issue unchecked executive orders, declare national emergencies, and (maybe) pardon themselves for any criminality not already waved away by Trump v. United States. All of that makes accountability to the people, the consent of whom is what grants political legitimacy, an almost farcical idea.
We need to reckon with these issues and modernize our system. We need to strengthen checks and balances, reform the judiciary, protect free speech and the media, and protect electoral integrity.
Some might think I’m calling for a Constitutional Convention. I am not. I am calling instead for a series of five amendments that would expand and amplify the radical ideas of the Founders: that all people are created truly equal and authoritarian overreach has no place in the United States.
We need a Third Founding.
The Democracy Amendments
Let’s tackle the Imperial Presidency first, since that’s the most urgent. Trump has proven adept at exploiting loopholes and gray areas of the Constitution to expand his power at the expense of the other branches of government and civil society.
Any amendment(s) limiting presidential power should include reforms like the Presidential Ethics Reform Act, which calls for greater transparency in tax returns and other financial documents, and makes disclosure mandatory. They should incorporate other provisions from the Protecting Our Democracy Act, which House Democrats passed in 2021. This expansive bill, which never became law:
“requires the Department of Justice (DOJ) and the President to submit to Congress specified materials relating to certain pardons,
suspends the statute of limitations for federal offenses committed by a sitting President or Vice President,
prohibits the acceptance of foreign or domestic emoluments, and
sets forth provisions regarding Office of Government Ethics and Office of Special Counsel jurisdiction and enforcement authority.”
It would also impose limits on presidential emergency declarations, prevent the firing of inspectors general without cause, and increase protections for whistleblowers. Finally, it would codify norms into law and establish legal penalties and enforcement mechanisms for violations.
What is also needed is wholesale reform or even repeal of the Insurrection Act, which has loopholes big enough to march a battalion through. And let’s throw out the DOJ guidelines that a sitting president can’t be prosecuted while in office while we’re at it. There need to be some protection for chief executives, but it’s unacceptable that rampant and obvious corruption should be met with a “what are you going to do?” and a shrug.
The next Amendment would strengthen our elections. It would need to provide for automatic voter registration when a citizen turns 18, override Citizens United and get dark and corporate money out of politics, and abolish the Electoral College. It’s absurd that the President—the only nationally elected federal office—is not actually nationally elected. Fifty state elections, all using different rules and procedures, to elect a bunch of local pols who go on to actually vote for the President is no basis for a system of government! It would also outlaw gerrymandering and make Election Day a national holiday.
The judiciary would be the subject of the third of these amendments. It should establish term limits on Supreme Court justices, enforce ethical standards and authorize the creation of an oversight body, and provide a mechanism so that every President gets a couple of appointments to be staggered based on justices’ retirements.
Finally, a pet cause of mine, strengthening press freedoms. This amendment would establish a federal shield law, strengthen the Freedom of Information Act, and regulate social media disinformation and misinformation. While we’re at it, let’s codify New York Times Co. v. Sullivan. It’s a powerful precedent by the Warren Court, but we’ve seen what precedent means to some justices. The ability to aggressively cover politicians and other public figures should not be solely dependent on the whims of thin-skinned Supreme Court justices or politicians.
What Isn’t Mentioned
These amendments are not a cure for Trump; the difficulties of ratifying Amendments make the likelihood of quick passage somewhere around farcical. But they are a prescription to prevent another, perhaps worse, power-mad president in the future. I know I’m assuming there will be a post-Trump time that has some vestiges of the Republic still standing. I’m personally hoping for a Truth and Reconciliation Commission or something.
You’ll notice I didn’t include amendments for racial justice or other social equity. It’s not that I don’t think they’re important; they very much are, and addressing the limitations of the 13th, 14th, and 15th Amendments is vital to making a more perfect Union. But we can’t begin to address, say, reparations for slavery, the Equal Rights Amendment, or any other massive social problem until we beat back incipient authoritarianism, stabilize our electoral system, and expand our democracy. That’s the ballgame.
We simply can’t continue this way. Trump’s patrimonialism is already shifting how the federal government operates, if you can call it that. This is a five-alarm fire, and we need to be taking it very, very seriously. But we also need to be looking toward the future.
Hope will sustain us. It is what makes new beginnings possible. Like all births, it will be hard and exhausting, the work of generations. And it will be painful. Remember, both previous Foundings were born of revolution or civil war. I sincerely hope it doesn’t come to either of those, but it’s clear we’re entering a traumatic period in American history.
I believe we can get through it, but we need a pole star to steer by while we do so. Oliver Wendall Holmes said, “To reach a port we must sail, sometimes with the wind, and sometimes against it. But we must not drift or lie at anchor.” A Third Founding as a national goal would be a lighthouse in the darkness, providing the direction and inspiration we’ll need to beat back the forces arrayed against us.