Flexible things can bend without breaking, while strong, rigid things can withstand a lot of force up to a point, then break catastrophically. Is the U.S. Constitution the latter? This Lawfare podcast on the Constitution made some interesting points, and I wish they would post a transcript.

• The U.S. Constitution is just outdated. Countries around the world looking to write a new constitution used to look to the U.S. Constitution as a model, but this is no longer the case. One U.S. Supreme Court justice in an interview suggested South Africa’s latest constitution as a good modern model.
• Constitutions around the world are amended on average about every 20 years. Some even lay out regular time tables for review and updating.
• The U.S. Constitution is the world’s hardest constitution to amend. Newer constitutions tend to make the most important rights hard to amend, but less important details easier to amend, with a few tiers of how large a majority is needed to approve various proposed amendments.
• The U.S. Constitution mostly lays out negative rights, in other words things the government can’t do to you like take away your gun. Newer constitutions include positive rights, like a right to health care or a clean environment.
• Interestingly, individual U.S. state constitutions are much more modern in terms of rights, and many are updated regularly.

The Congressional Research Service did a report in 2016 on the constitutional convention process, which is one way the constitution can be amended, theoretically by the states and outside the direct control of Congress. Here are a couple interesting paragraphs:

From the 1960s through the early 1980s, supporters of Article V conventions mounted vigorous unsuccessful campaigns to call conventions to consider then-contentious issues of national policy, including a ban on school busing to achieve racial balance, restrictions on abortions, apportionment of state legislatures, and, most prominently, a requirement that the federal budget be balanced, except in wartime or other extraordinary circumstances. Although they came close to the constitutional requirement, none of these campaigns attained applications from 34 states.

With the failure of these efforts, interest in the Article V Convention alternative declined for more than 20 years, but over the past decade, there has been a gradual resurgence of attention to and support for a convention. Advocacy groups across a broad range of the political spectrum have embraced the convention mechanism as an alternative to perceived policy deadlock at the federal level. Using the Internet and social media to build campaigns and coalitions that once took much longer to assemble, they are pushing for a convention or conventions to consider various amendments, including the well-known balanced budget requirement, restrictions on the authority of the federal government, repeal of the corporate political contributions elements of the Supreme Court’s Citizens United decision, and others.

Sure, Citizens United has to go. Rather than the ghosts of George Washington and Thomas Jefferson whispering in the ears of our nine unelected Supreme Leaders to tell us what the First Amendment and all the other amendments mean in 2024, we should come to consensus on new words that say clearly what we want them to say. But even more fundamental would be to amend the constitution to make it easier to amend in the future. Reviewing constitutions around the world for modern best practices sounds like a great idea. Instituting tiers for the level of consensus needed to pass various types of amendments sounds like a great idea. And adding a time table for regular review of the constitution seems like a good idea. For example, maybe Congress would have to vote on amendments proposed by the states at least once per session or once every X years, or else a constitutional convention would automatically be triggered.