The only thing more surprising than the recent spate of busted “norms” is that the proper functioning of our political system is dependent on norms. Officeholders obey unwritten customs out of either a sense of duty or a fear of public shame. But if a leader is neither virtuous nor fearful, they will do whatever they want.

Premodern republics carefully regulated magistrates. Capital punishment for staying beyond the expired term was not unusual.  In Florence merely engaging in political organizing almost became a capital crime. A podestà who violated anti-corruption rules, even socializing with elite families, faced severe financial penalties. As Machiavelli wrote, “A city based on good laws and good orders has no necessity, as have others, for the virtue of a single man to maintain it.”

By contrast our system banks a lot on presidential virtue.  Exactly why is unknowable but probably because the Founders thought it unlikely a scoundrel would make it to the Oval Office past the deliberative selection process they created. But it hardly matters why. Guardrails are missing, and when virtue or fear is also missing, we have presidents selling pardons to benefit themselves; starting wars on their own, notwithstanding the declaration power reserved for Congress; and taking personal charge of criminal prosecutions.  Jefferson thought it his right and duty to supervise Aaron Burr’s prosecution. Law enforcement is an executive function, and the Constitution says, in Gouverneur Morris’s unambiguous language, “The executive Power shall be vested in a President of the United States of America” — full stop. In their recent opinion, the Supreme Court cited that sentence when deciding that a president has “absolute immunity” for crimes committed while exercising his core duties.

Now that the office is a legalized perch for strongmen, we need to shift our dependence from old norms to new laws. It is time to reconsider the Constitution’s vast grants of presidential power: pardon, war-making, administration of justice, and more. And while we are at it, we should consider two other areas, too.

First, presidential selection. The nominating system is a shambles. Primaries, staged in sequence and utilizing plurality wins, produce random results. Good candidates drop out after a few losses, others advance through the sequence, and because of plurality wins one never knows if the right persons are dropping or advancing. As the Marquis de Condorcet showed, in a multiple-candidate field plurality wins are as good as a throw of the dice in producing a winner who is the most preferred candidate.

Nominating could be changed without a constitutional amendment. Not so the electing phase. Originally the system was designed to have two stages: first nominating by electors then election by the House of Representatives. The Twelfth Amendment kept some features of the design (organizing votes by states) but eliminated others (each elector’s double vote). The result is a dysfunctional, unintended hybrid, part anchored in states and part in popular votes, which is why the winner sometimes does not attain a majority of popular votes (one third of elections) and sometimes is not even the popular winner.

There are plenty of ways to fix the system, but the main goal (if we keep the presidency at all) would be to make presidential selection either more deliberative or more popular but not stumble along with the ill-fitting combination we have.

Second, it is time to think seriously about the litigious, partisan method by which we fill offices. Elections can plainly lead to disaster: Mussolini (April 1924), Hitler (July 1932), Hamas (January 2006).  Yet we do not permit these appalling outcomes to bring into question the wonderfulness of elections; such is the tyranny of the familiar.

Cassandras have appeared. In 1943, Simone Weil pointed out that majority rule and democracy were not “good in themselves” but a means to an end. The end is justice, and if the means don’t lead there the means must be changed. The unjust rule of a democratic nation, Weil wrote, is not superior to the unjust rule of a single individual.

Abraham Lincoln made the same point debating Stephen Douglas. Douglas argued popular sovereignty should decide slavery. What could be more American? he asked. Lincoln said the issue is a moral one. Slavery is either a good thing or a bad thing, and if it is bad, democracy can’t make it good.  When Missourians voted for slavery, Douglas and his supporters shouted “’Hurrah for democracy,’” Lincoln mocked.  The idea that we could vote our way out of the slavery crisis was, said Lincoln, “a living, creeping lie.”

Premodern republics were skeptical of simple elections. Many used extensive nominating to involve critical constituencies then barred political organizing to stop a faction or strongman from capturing government.  Many used a lottery either in the first stage to choose nominators or the final stage to choose officeholders. Many used super-majorities rather than majorities (and never pluralities). Nearly all used rotation to preclude professional politicians.

This last problem, the professionals, is destructive. Participating in public affairs was in classical Greece not just a pleasurable feature of life; it was the definition of freedom. It was also widespread (for citizens) in late medieval city republics. In the modern version of democracy, we make 320 million people idle and frustrated so 535 people can be busy and happy.

One need not replicate premodern procedures today.  What does matter is coming to grips with the overarching idea of premodern architecture — namely, using procedural complexity to create a government broadly representative of diversity but without campaigns and simple elections as the load-bearing pillars, aiming for less politicized, more neutral government. If we continue delegating the formation of government to the ambitious and their combative campaigns, we are dooming ourselves to division.

What is to be done? There is no alternative to writing a new Constitution.  Philanthropies and academe should organize mock constitutional conventions peopled by historians, lawyers, political scientists, retired politicians, and community leaders, among others. After the mocks, a real one (or several) must follow. Some people may resist reform, but eventually they will be brought around. For if “norms” are insufficient barriers to a strongman from one party, they will be insufficient to a strongman from another.  Out of self-preservation, across parties we need to put our heads together, and soon.