Should we rewrite our constitution?

(theme music) - If we were to create America from scratch today how would we create our user manual?

And who would write it?.

(inspirational electronic music) What is the average turnaround time or shelf life of a constitution internationally?

- Internationally it's only about 17 years and it's actually going down.

In recent decades it's been only about 12 years.

- And ours has lasted for-- - Over 200 years, right?

- Okay.

- Yeah, so.

- Okay, so we're about due?

- Seventeen... well - Ha ha ha.

- that's what some people say actually.

- [Toussaint] Writing or re-writing a constitution is not a job for the faint of heart.

So I ask you, Where on this Earth could we find a nation that is brave enough, passionate enough, and maybe even foolish enough to take on such a challenge?

- My name is Silja Bara Omarsdottir and I lecture at the faculty of Political Science at the university of Iceland.

- Thanks so much for taking the time to be with us.

(lighthearted music) Let me first ask you, why did Iceland decide to reform their constitution?

- [Marie] Well in 2008 Iceland had a financial collapse and a lot of people suggested that the problems that we had as a society would have been avoided if we'd had a more modern constitution.

The Icelanders got their own constitution from the King of Denmark in 1874 and then when Iceland became a sovereign republic in 1944 Denmark was then under occupation, so the constitution was very quickly re-written, essentially replacing the word King with the word Resident.

- [Toussaint] So now let's jump back to the United States.

("The Stars and Stripes Forever" by John Philip Sousa) When we wrote our constitution it was done at a constitutional convention in which influential men got together hashed out their ideas and once they had a working document they got approved by at least nine of the states.

Just like that, the constitution was born.

Today we still have two processes for proposing new constitutional amendments both of which require the participation of the states before they can pass.

(relaxing music) In the first version which has been used to create our current amendments Congress comes up with an idea and then 3/4 of the states need to approve it.

In the second version which has never been used in American history the states could call an Article V Convention which essentially allows them to get together and propose whatever amendments they want.

After that if they can get approval from 3/4 of the states those amendments become law.

- Either Congress has to pass a law - Mm hmm.

- and send it to the state legislatures to change parts of the constitution or the states can initiate a request to Congress to call a constitutional convention.

And if we wanted to do the whole constitution that's probably the route because you'd want to have a time for people to meet and talk just like they did when they were framing the constitution.

- Many scholars have argued that an Article V Convention would border on chaos (politician yelling) because there are no rules in the constitution about how a convention like this should operate.

It would technically be above the Congress and even possibly above the courts and pretty much anything could come out of it.

At the same time it's not that fundamentally different from how we wrote our current constitution in the first place.

So if we were ever going to re-write the constitution on a large scale this is probably how we'd do it.

- Do you think we should be re-write the constitution?

- I am skeptical about whether it would provide any more human rights than it does.

I think there may be as many people who would try to roll back some of the rights that these minorities have as that would try to extend them.

- But for us this might not matter.

We're talking from scratch.

Which is why, if I may, I'd like to do a quick dramatic reading from the constitution: (beep) (beep) (beep) Now let me pause it here because as you can probably guess that's not the constitution, as in the U.S. constitution.

It was actually written in 2008 for the Republic of Kosovo.

(rewinding audio) But here's the amazing part; one of the people who played a key role in writing this document was a lawyer living in Minnesota.

- [John] I was privileged to have the opportunity to work with people in Kosovo to draft their constitution when they became independent in 2008.

- [Toussaint] That is Chief United States District Judge John Tunheim and I met with him at his chambers to ask you more about this constitution.

- [John] It's a little warped right now but that's what it looks like.

- Wow.

- You know when the Soviet Union broke up - Mm hmm.

- there were how many, what, 14 or 15 different countries - Yeah.

- that needed to write new constitutions, - Yeah.

- And they did.

And some of those countries had had fundamental changes in government since then so they've written a new constitutions out of that experience.

- Mmm.

- [John] There's a lot of constitutions that have been written in the last 25 years.

- Judge Tunheim's work represents something kind of fascinating in today's world; legal professionals being commissioned to turn a country's goals into a legal document.

But is this right for us?

Because, let's be honest, I'm guessing that when we asked if we were making America from scratch today who would be writing our constitution you probably didn't picture someone like Judge John Tunheim.

Maybe thought it was going to be a little more like this: - Oh, you promised!

- You promised, that's not fair.

- It's not a question of fairness, it's separation of-- - Go back to Russia, commie!

- Hey you go back to Russia.

(crowd murmuring) (intense music) - This brings us to one of the real tensions in our country today: Who should be writing the rules?

When our country was founded, as we all know, it was influential men like James Madison who put the actual pen to paper.

And today, well, there are parallels.

So what if we really broke the mold and decided to take a new approach, like crowd sourcing?

It's diverse, it's inclusive, everybody weighs in and the people finally have a voice.

That actually brings us right back to Iceland.

- So a lot of people have said that the Icelandic constitution was crowdsourced and I wouldn't really say that.

In 2010 the decision was made to have a constitutional assembly elected by the population to write a proposal for a new constitution.

This group of 25 people, we always sat around and we make the decisions as to what text would actually be included.

Every time we made a proposal we would present that and plug it on Facebook and publish it online and we would ask people to send us comments, to leave comments on the document and tell us what they thought but people couldn't actually write anything other than the 25 people who were in the council.

- Ultimately Iceland's new constitution was not officially adopted.

However it was a good example of when the country says, "Hey we need to try something new."

And just by having the conversation it led to a lot of good policy ideas.

- I wouldn't say that it was a waste of time.

It actually created at least a short lived debate about what it is that we want to be and what our values are as a society.

Reminding the people and the government that there are things that remain to be fixed.

- So what would it be like if we decided to follow the example of Iceland?

What ideas would you fight for to include in a new constitution and what elements would you leave behind?

Hey everybody, it's Toussaint Morrison.

Thank you so much for watching this episode.

On our next episode we're gonna talk about if our data should have rights.

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