The U.S. Needs a Constitution – Here's How to Write It(theatlantic.com)
theatlantic.com
The U.S. Needs a Constitution – Here's How to Write It
http://www.theatlantic.com/politics/archive/2013/11/the-us-needs-a-constitution-heres-how-to-write-it/281090/
15 comments
> The fact that it sees the pain and dysfunction as symptoms of a systemic/endemic flaws is telling
Indeed.
One of the greatest strengths of the US Constitution, one of the reasons it is the oldest constitution in use to date, is the fact that it stemies government.
That dysfunction is what has led to the extraordinary prosperity experienced by the United States.
Indeed.
One of the greatest strengths of the US Constitution, one of the reasons it is the oldest constitution in use to date, is the fact that it stemies government.
That dysfunction is what has led to the extraordinary prosperity experienced by the United States.
That’s a nice axiomatic assumption made based on faulty observations.
Not only are the facts to support that assumption not in evidence, the facts that exist about the history of the U.S. government show that
(a) dysfunction is not the normal mode of operation of the U.S. government and that
(b) the extraordinary prosperity of the U.S. since about 1930 has been to increasing levels of federal government involvement and investment in both infrastructure projects (e.g., the interstate highway system, the Internet, advances in medicine and sanitation) and social projects (the social safety net, some basic medicare services, education investment as a whole, desegregation and civil rights in general).
The U.S. has not been this actively dysfunctional for at least eighty years, and more likely for about 160 years (and the secondary reasons for the dysfunction 160 years ago are not too dissimilar to the reasons for dysfunction now, as ways of life and economic growth are deeply threatened by modernization). I’m not sure that we've seen sustained partisanship for this long ever in the history of the U.S. (about 18 years since Bill Clinton and Newt Gingrich’s clashes in ’95).
Further, it’s questionable how sustainable the “prosperity” in the U.S. is over the 18–20 years, as has been well documented. Most of the money has flowed away from the middle class (the proverbial rising tide) and toward an already wealthy upper-upper class.
That the U.S. and its constitution have survived several shorter periods of hyper-partisanship and a civil war suggest that it is, as a document, more resilient than the article suggests, but there has been a sea change in the U.S. where I no longer recognize the country of my birth and can foresee the day when I choose no longer to be a U.S. citizen because I no longer identify with what it has become.
Not only are the facts to support that assumption not in evidence, the facts that exist about the history of the U.S. government show that
(a) dysfunction is not the normal mode of operation of the U.S. government and that
(b) the extraordinary prosperity of the U.S. since about 1930 has been to increasing levels of federal government involvement and investment in both infrastructure projects (e.g., the interstate highway system, the Internet, advances in medicine and sanitation) and social projects (the social safety net, some basic medicare services, education investment as a whole, desegregation and civil rights in general).
The U.S. has not been this actively dysfunctional for at least eighty years, and more likely for about 160 years (and the secondary reasons for the dysfunction 160 years ago are not too dissimilar to the reasons for dysfunction now, as ways of life and economic growth are deeply threatened by modernization). I’m not sure that we've seen sustained partisanship for this long ever in the history of the U.S. (about 18 years since Bill Clinton and Newt Gingrich’s clashes in ’95).
Further, it’s questionable how sustainable the “prosperity” in the U.S. is over the 18–20 years, as has been well documented. Most of the money has flowed away from the middle class (the proverbial rising tide) and toward an already wealthy upper-upper class.
That the U.S. and its constitution have survived several shorter periods of hyper-partisanship and a civil war suggest that it is, as a document, more resilient than the article suggests, but there has been a sea change in the U.S. where I no longer recognize the country of my birth and can foresee the day when I choose no longer to be a U.S. citizen because I no longer identify with what it has become.
RE your point a)
this gets into the semantics of the term dysfunction. I think if we did a point by point walk through of any given portion of the history of US government one could find a bounty of examples of dysfunction. It would simply be a matter of choosing what portions of history you wished to look closely at.
and RE your point b)
This is a far bigger set of assumptions and faulty observations. Firstly not all of those projects constitute a singular 'success' rather than simply the emergent of some system that produces a wide range of results. The funding is simply a component of that and the ultimate determining factor as to whether or not the net result of that funding was better than other alternatives that could have existed in it's absence is something that's not easy to quickly determine.
Reminds me of getting a large and extremely demanding client. Certainly one may be gaining far more money than they ever did prior to having said client, but if the demands and side effects of having the client are too high then even the masses of money one makes, when placed in context to the big picture and the actual desired ends, may not result in an optimal, or even a positive, end.
One needs but look at state welfare in Europe to see an example of this. The state takes care of people and one of the fall outs is that individual persons, beyond what they are obligated to give through taxation, help their fellow countrymen at far lower rates than they do in less socialized nations. There's always unseen costs.
this gets into the semantics of the term dysfunction. I think if we did a point by point walk through of any given portion of the history of US government one could find a bounty of examples of dysfunction. It would simply be a matter of choosing what portions of history you wished to look closely at.
and RE your point b)
This is a far bigger set of assumptions and faulty observations. Firstly not all of those projects constitute a singular 'success' rather than simply the emergent of some system that produces a wide range of results. The funding is simply a component of that and the ultimate determining factor as to whether or not the net result of that funding was better than other alternatives that could have existed in it's absence is something that's not easy to quickly determine.
Reminds me of getting a large and extremely demanding client. Certainly one may be gaining far more money than they ever did prior to having said client, but if the demands and side effects of having the client are too high then even the masses of money one makes, when placed in context to the big picture and the actual desired ends, may not result in an optimal, or even a positive, end.
One needs but look at state welfare in Europe to see an example of this. The state takes care of people and one of the fall outs is that individual persons, beyond what they are obligated to give through taxation, help their fellow countrymen at far lower rates than they do in less socialized nations. There's always unseen costs.
Are you seriously going to try to make either of these arguments?
a. Your original point suggested that continuous dysfunction is the reason that the U.S. is successful. Not only is this nonsensical, it is ahistorical. Yes, the U.S. has had periods of hyper-partisanship prior to the last fifteen years. The most serious of these resulted in a war. However, over most of the last 224 years, the U.S. has had more periods of cooperation and compromise than hyper-partisanship and dysfunction. Even during the 1930s (where there a plot to stage a coup d'état, defeated only because the plotters misjudged their preferred candidate) and the 1950s (e.g., McCarthy) the business of government moved forward and there were measurable improvements in the quality of life and infrastructure directly attributable to government intervention. (See also the TVA.)
b. Your assessment is flat-out incorrect on numerous levels. Again, it assumes facts that are not only not in evidence, but contrary to the facts that actually exist. This is a common problem with choosing to believe ideological stances rather than comparing them against facts.
Under no circumstances do I think that all government programs are successful; however, the U.S. saw greater real economic growth during times of higher government spending on infrastructure programs and social programs (as I indicated) than it has when these things fall to the best “interests” of the monied classes and so-called “Christian charity”.
I don’t know what your particular political stance is, but your characterization of the charitable nature of Europeans is misguided, at best—a lot of the higher “charitable” donation rates in the U.S. are because (1) the government funds aren’t there to assist those in need, (2) there are greater tax incentives to donate more. I put “charitable” in quotes because all donations to churches—for any reason whatsoever—are considered tax deductible in the U.S. Most of those donations are not used for local charitable assistance (e.g., soup kitchens, etc.) activities; they are used for church building maintenance, salaries, mission work, etc.
I suspect (because I don’t know where to find the actual numbers for this) that if you were to measure per-capita charitable assistance spending through charitable donations, it would be similar. I also don't happen to think that the success of a nation should be measured on how financially charitable its people are to those less fortunate members of society—I think it should be measured on how few of its people have what is now termed food insecurity. If that can be done with charitable donations, great—but as the U.S. amply demonstrates, it cannot and never could.
a. Your original point suggested that continuous dysfunction is the reason that the U.S. is successful. Not only is this nonsensical, it is ahistorical. Yes, the U.S. has had periods of hyper-partisanship prior to the last fifteen years. The most serious of these resulted in a war. However, over most of the last 224 years, the U.S. has had more periods of cooperation and compromise than hyper-partisanship and dysfunction. Even during the 1930s (where there a plot to stage a coup d'état, defeated only because the plotters misjudged their preferred candidate) and the 1950s (e.g., McCarthy) the business of government moved forward and there were measurable improvements in the quality of life and infrastructure directly attributable to government intervention. (See also the TVA.)
b. Your assessment is flat-out incorrect on numerous levels. Again, it assumes facts that are not only not in evidence, but contrary to the facts that actually exist. This is a common problem with choosing to believe ideological stances rather than comparing them against facts.
Under no circumstances do I think that all government programs are successful; however, the U.S. saw greater real economic growth during times of higher government spending on infrastructure programs and social programs (as I indicated) than it has when these things fall to the best “interests” of the monied classes and so-called “Christian charity”.
I don’t know what your particular political stance is, but your characterization of the charitable nature of Europeans is misguided, at best—a lot of the higher “charitable” donation rates in the U.S. are because (1) the government funds aren’t there to assist those in need, (2) there are greater tax incentives to donate more. I put “charitable” in quotes because all donations to churches—for any reason whatsoever—are considered tax deductible in the U.S. Most of those donations are not used for local charitable assistance (e.g., soup kitchens, etc.) activities; they are used for church building maintenance, salaries, mission work, etc.
I suspect (because I don’t know where to find the actual numbers for this) that if you were to measure per-capita charitable assistance spending through charitable donations, it would be similar. I also don't happen to think that the success of a nation should be measured on how financially charitable its people are to those less fortunate members of society—I think it should be measured on how few of its people have what is now termed food insecurity. If that can be done with charitable donations, great—but as the U.S. amply demonstrates, it cannot and never could.
You would be hard pressed to say that the prosperity is the result of government. We were also aided by a war that killed 80M people left most of the industrialized world in ruins. And civil right, seriously? The government was the greatest force operating against civil rights last century.
The notion that everything was civil in the past is also a fanciful notion. The country has often been deeply divided and I don't see any reason why it should remain so.
Also the concentration of wealth this time around unlike a century ago has been caused by two things, technology and improvements to productivity and periods of artificially low interest rates. I don't see what we can do about the former and with the nomination of Yellen I don't think there will be significant changes to monetary policy.
The notion that everything was civil in the past is also a fanciful notion. The country has often been deeply divided and I don't see any reason why it should remain so.
Also the concentration of wealth this time around unlike a century ago has been caused by two things, technology and improvements to productivity and periods of artificially low interest rates. I don't see what we can do about the former and with the nomination of Yellen I don't think there will be significant changes to monetary policy.
Actually, I wouldn't be hard pressed to say that. If I had said that it was exclusively the result of government, then I'd be saying something even more nonsensical than what's been said by the folks who actually think that government dysfunction is a path to success.
1. The increased government spending on infrastructure and social structure reduces private spending on infrastructure and social structure, freeing up that capital to be spent on other projects, or even enabling projects that could not be considered previously.
While we are facing a number of problems related to deep dependency on petroleum now, the Eisenhower Interstate Highway system revolutionized cargo transit. In general, greater spending on the highway system from the federal level required that states and municipalities spend more keeping their connecting roads up to date—to the point of paving more roads that had previously not been paved, increasing commercial access to everyone in general.
I've made the point some time ago, but increased social spending allows businesses to exist that would not otherwise exist precisely because of that social spending. In economically depressed areas, there will be people employed because recipients of social spending have funds that they would not otherwise have available.
While it is true that at times government gets in the way of progress, it is not generally because of an activist government looking out for the welfare of all of its citizens, but rather because of a conservative (meaning trying to preserve the status quo, not a political stance per se) government protecting the interests of an elite class. Both sorts of government can exist at the same time in a single administration.
2. The federal government has been the greatest force operating in favour of civil rights for about 150 years, although with a spotty record. The most recent failures exist primarily because of recidivist views about the nature of civil rights, primarily embodied in the views of the Roberts court and current (2010–2013) Tea Party Republicans. State governments, on the other hand, have by and large been powerful forces acting against civil rights that have been forced to act differently because of federal government intervention. Any argument otherwise had best be backed fairly heavily by reputable evidence, because that's the history.
3. I would appreciate that you not argue against a straw-man. I never said that the past was always civil. I said that the divisions that have existed in the past have never lasted this long and been this deep; they have (once) been deeper to the point of war, but most of those divisions have (i) been fairly short, limited to one or two sessions of congress, and (ii) not impeded the rest of the operation of government in any meaningful way. Even McCarthyism didn't break government the way that recent events have. Bills were still passed, and the business of government moved forward at a better pace than you would imagine.
4. Check your history again. IIRC, the monetary crises of the 1890s and the 1920s–1930s were caused in no small part by improvements to productivity (rapid industrialization, etc.) and technology (trains, cars, etc.) and low interest rates, as well as extremely loose regulatory environments. Both can be fixed by taking taxation seriously and not pretending that it is an evil thing, as far too many modern politicians and internet libertarians do.
1. The increased government spending on infrastructure and social structure reduces private spending on infrastructure and social structure, freeing up that capital to be spent on other projects, or even enabling projects that could not be considered previously.
While we are facing a number of problems related to deep dependency on petroleum now, the Eisenhower Interstate Highway system revolutionized cargo transit. In general, greater spending on the highway system from the federal level required that states and municipalities spend more keeping their connecting roads up to date—to the point of paving more roads that had previously not been paved, increasing commercial access to everyone in general.
I've made the point some time ago, but increased social spending allows businesses to exist that would not otherwise exist precisely because of that social spending. In economically depressed areas, there will be people employed because recipients of social spending have funds that they would not otherwise have available.
While it is true that at times government gets in the way of progress, it is not generally because of an activist government looking out for the welfare of all of its citizens, but rather because of a conservative (meaning trying to preserve the status quo, not a political stance per se) government protecting the interests of an elite class. Both sorts of government can exist at the same time in a single administration.
2. The federal government has been the greatest force operating in favour of civil rights for about 150 years, although with a spotty record. The most recent failures exist primarily because of recidivist views about the nature of civil rights, primarily embodied in the views of the Roberts court and current (2010–2013) Tea Party Republicans. State governments, on the other hand, have by and large been powerful forces acting against civil rights that have been forced to act differently because of federal government intervention. Any argument otherwise had best be backed fairly heavily by reputable evidence, because that's the history.
3. I would appreciate that you not argue against a straw-man. I never said that the past was always civil. I said that the divisions that have existed in the past have never lasted this long and been this deep; they have (once) been deeper to the point of war, but most of those divisions have (i) been fairly short, limited to one or two sessions of congress, and (ii) not impeded the rest of the operation of government in any meaningful way. Even McCarthyism didn't break government the way that recent events have. Bills were still passed, and the business of government moved forward at a better pace than you would imagine.
4. Check your history again. IIRC, the monetary crises of the 1890s and the 1920s–1930s were caused in no small part by improvements to productivity (rapid industrialization, etc.) and technology (trains, cars, etc.) and low interest rates, as well as extremely loose regulatory environments. Both can be fixed by taking taxation seriously and not pretending that it is an evil thing, as far too many modern politicians and internet libertarians do.
1. There is no doubt that government spending stimulates things until it no longer does. I find the outrage over Walmart to be particularly funny since over time it has evolved to maximize its benefit from government spending. Walmart is one of the largest supports of food stamps and other welfare programs because in some states it captures half of all money the government hands out. I find it to be a gross distortion of the market that will only grow larger over time.
Highways similarly distorted the markets and we will be living with those effects for some time. One primary distortion was the destruction of passenger railroads. It may have been the right thing to do but for every tamper we get right more are gotten wrong.
2. I can't do anything but shake my head.
3. Pre Civil War politics frequently involved guns over the issue of slavery on both sides. Post civil war for decades also involved lots of guns.
4. All financial crises (monetary or otherwise) stem from overextending credit to people that should not have it. Its the same whether its tulips, railroads, stocks, internet companies or mortgages. Rises and crashes are the natural ebb and flow of the business cycle and should be embraced. Downturns are a way of correcting mistakes. I don't see how they can be fixed with taxation. The real issue is interest rates.
Highways similarly distorted the markets and we will be living with those effects for some time. One primary distortion was the destruction of passenger railroads. It may have been the right thing to do but for every tamper we get right more are gotten wrong.
2. I can't do anything but shake my head.
3. Pre Civil War politics frequently involved guns over the issue of slavery on both sides. Post civil war for decades also involved lots of guns.
4. All financial crises (monetary or otherwise) stem from overextending credit to people that should not have it. Its the same whether its tulips, railroads, stocks, internet companies or mortgages. Rises and crashes are the natural ebb and flow of the business cycle and should be embraced. Downturns are a way of correcting mistakes. I don't see how they can be fixed with taxation. The real issue is interest rates.
> That dysfunction is what has led to the extraordinary prosperity experienced by the United States.
I think this is a rather simplistic view of history. Supposing that American history unfolded along Australian lines (no revolution, eventual unification by vote, constitutional bicameral monarchy with fused executive), I expect that it would still have wound up as the richest and most powerful nation in history.
The USA straddles what is, quite simply, the best place on earth for agriculture and trade. No other country in the world has better internal navigation by river. No country has such a vast bowl of rich soil red reliably by rain from two massive mountain ranges draining into the interior. No other country in the world has so many ideal ports. There are more good ports on the American Atlantic coast than there are on the European Atlantic coast.
It is difficult to make and sustain an argument that, once British institutions took root in such fertile conditions, the USA was never destined to be very wealthy and successful.
I think this is a rather simplistic view of history. Supposing that American history unfolded along Australian lines (no revolution, eventual unification by vote, constitutional bicameral monarchy with fused executive), I expect that it would still have wound up as the richest and most powerful nation in history.
The USA straddles what is, quite simply, the best place on earth for agriculture and trade. No other country in the world has better internal navigation by river. No country has such a vast bowl of rich soil red reliably by rain from two massive mountain ranges draining into the interior. No other country in the world has so many ideal ports. There are more good ports on the American Atlantic coast than there are on the European Atlantic coast.
It is difficult to make and sustain an argument that, once British institutions took root in such fertile conditions, the USA was never destined to be very wealthy and successful.
As I said in a sibling comment to this, it's also an incorrect view of history.
That said, I'm not sure I agree with your assessment—if the U.S. had not had a revolution and had instead followed a Confederation model (e.g., the formation of Canada in 1867), I'm not sure that there would be a single nation in the land occupied by what is now the U.S., but more likely a few smaller nations. Other things could have also easily prevented the U.S.’s fate as the most powerful nation in the world, as for most of its existence, the U.S. was powerfully isolationist (at least outside of the North American continent) and inward-looking.
That said, I'm not sure I agree with your assessment—if the U.S. had not had a revolution and had instead followed a Confederation model (e.g., the formation of Canada in 1867), I'm not sure that there would be a single nation in the land occupied by what is now the U.S., but more likely a few smaller nations. Other things could have also easily prevented the U.S.’s fate as the most powerful nation in the world, as for most of its existence, the U.S. was powerfully isolationist (at least outside of the North American continent) and inward-looking.
Australia formed out of independent colonies out of simple expediency (eg, unified customs to improve trade). Americans have been a sufficiently practical people that similar considerations would, I think, eventually have brought them together.
Fair enough; I'm looking at it more from the Canadian perspective with Québec thrown into the mix, which hasn't always been an enthusiastic partner with the rest of Canada. If the U.S. hadn't been a single nation, I personally believe that the regional differences between east and west would have resulted in different nations being formed longitudinally split roughly along the Mississippi river in what is now the U.S. and somewhere along that same longitude in Canada.
In what way is the US government stymied? I don't see much difference compared to other democratic systems. Just count the number of laws and regulations.
The self-assured certainty imbedded in the tone of this article belies the pride manifest in such a view that prefers the novel application of modern intellectual enlightenment to the time tested bulwark that is our iterative and flexible legal foundation.
Not to mention the conceit that we are automatically smarter than those of the past merely because of progress. The framers were smart. More importantly, they worked hard. They studied history, thousands of years worth, all sorts of forms of governments, what worked, what didn't. To throw that all out and say, "hey, let's run the country like a startup mixed with IRV, because we're modern and know better!" just smacks of arrogance.
Sure, you can write a new constitution from scratch; first, do your homework and study all the other governments that have ever been. You've got all that modern technology at your disposal (which the founders didn't), so don't complain about the workload.
Not to mention the conceit that we are automatically smarter than those of the past merely because of progress. The framers were smart. More importantly, they worked hard. They studied history, thousands of years worth, all sorts of forms of governments, what worked, what didn't. To throw that all out and say, "hey, let's run the country like a startup mixed with IRV, because we're modern and know better!" just smacks of arrogance.
Sure, you can write a new constitution from scratch; first, do your homework and study all the other governments that have ever been. You've got all that modern technology at your disposal (which the founders didn't), so don't complain about the workload.
> the time tested bulwark that is our iterative and flexible legal foundation.
Other traditions are time tested too. I note that Australia didn't fall into a brutal civil war within 8 decades.
Other traditions are time tested too. I note that Australia didn't fall into a brutal civil war within 8 decades.
The Chinese dynastic system lasted for thousands of years, until it stopped working because it turned out to be a shitty system that couldn't cope with the demands placed upon it by a rapidly changing and industrializing world. So I don't even feel that 'time tested' is a particularly good criterion.
The Chinese dynastic system was never designed to be an iterative, democratic system that aimed at providing the pursuit of hapiness. Our system has lasted through changes equal in turbulence to that which we are going through now, just a different flavor of it. The Industrial Revolution as merely a single example.
What? China has had thousands of years of rotating cycles of stability and ruinous wars.
There are philosophical and bureaucratic similarities among almost all of the major/dominant dynasties after Qin that disappeared after the Qing fell and probably won't come back ever again. But I could have chosen a better example.
Though, to be fair, a good chunk of those dynasties lasted a few hundred years. :P
So clearly we should have dynasties and a couple wars of succession to devastate the nation every 50-100 years. Something about the blood of patriots and tyrants. 20 years?
So clearly we should have dynasties and a couple wars of succession to devastate the nation every 50-100 years. Something about the blood of patriots and tyrants. 20 years?
Australia is not on the brightest of trajectories for stability at present. Who needs a brutal civil war to set you back when you just stop replacing your population? At a bit under 1.8 total fertility rate they're doing to their country, over the next generation, the equivalent of loosing 15% of their population, far more than we've lost in any single war. If the numbers on the civil war are correct, with 2% of the US population lost on the front lines, the present demographic condition of Australia will have more than seven times the impact on their society as the US Civil War had on ours in terms of lives not realized.
Australia's population is growing at 1.6% pa.
Australia is also, like Canada and the U.S. itself, an immigrant nation, making the importance of population replacement rates less important (the U.S. is around 1.9 right now, but second-generation and later fertility rates are below the replacement rate; immigrant and first-generation fertility rates are above the replacement rate, averaging out but resulting in the demographic shift that is disturbing certain folks among red states right now).
In my view, the US Constitution has been too successful. If it were more definitively broken, it could be repaired more easily. But there is no political will right now to make any amendments at all, outside of noodling on the Internet and in wonkish circles. As it is, the longevity of the Constitution has led to its being imbued with an almost mystical character, where it's viewed as the most important force preventing anarchy and/or tyranny, and as something incredibly fragile.
I disagree. The failure of the Constitution is pretty broad and varied, but its failures have definitely been apparent to those who know it and are paying attention.
Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake.
The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller.
They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there.
It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently."
The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle.
Sorry for the rant.
Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake.
The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller.
They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there.
It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently."
The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle.
Sorry for the rant.
With regard to the Second Amendment, it is undeniable that some of the material facts of "weapons in America" and "how society works" have changed since 1791. The text is also poorly written. What we ought to do is to decide what the Constitution should say about guns, and then amend it accordingly. Instead, we've tried to amend it by stealth, because we don't have the maturity as a society to be confident in the amending process.
> The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right.
The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment.
This seems to be relevant for the rest of your thing about how bad laws were made...
> It's hard to imagine that any originalist text or intent would condone
You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable.
> The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers.
It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead.
> There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable.
This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.
The text of the Second Amendment isn't "Congress shall make no law". It's that "the right ... shall not be infringed." The "shall make no law" bit refers to the First Amendment.
This seems to be relevant for the rest of your thing about how bad laws were made...
> It's hard to imagine that any originalist text or intent would condone
You seem to be saying this as if originalism is the absolute correct jurisprudential theory with which to interpret the Constitution, but to put it mildly, that's debatable.
> The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers.
It's subject to interpretation by the rest of us, too. Which is why it annoys the hell out of me every time someone talks about how they wish people would just use plain English instead.
> There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable.
This isn't correct. Lawyerese is used because the phrases have established precedent. It's not un-interpretable; it's already-was-interpreted and you're going to have to overturn precedent in order to get it interpreted differently.
Apologies for the errors. I was (unwisely) posting under the influence at the time.
You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction.
As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option.
That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend.
The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark.
In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification.
I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.
You're absolutely right on the Second, and I know that well myself... I think I'd started saying something about the first and fourth and gotten mixed up. It was indeed a rookie mistake, and I appreciate your correction.
As for the originalist interpretation of the Constitution, I know that it's been debated, but I've never subscribed to the arguments that an originalist reading is bad. If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option.
That isn't to suggest that I think it's perfect. I think that it should have been, and should be ratified far more than it has been. I think that there's plenty wrong with it, but just acting like it doesn't exist shouldn't be an option either, and that seems to be the trend.
The last thing I'll say on originalism though is that the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc., to adhere to originalist intent. As such, I think it's fair to say that an originalist interpretation is the gold standard, and we're falling far short of that mark.
In keeping with that though, I believe the founders foresaw its shortcomings, and also expected more ratification.
I don't disagree with your assessment on plain English, but I do wish that there was less ambiguity.
ETA: I feel like this comment was sort of combative and harsh. I'm not really sure how to ameliorate that, though, so I'm just going to prepend an apology and say thank you for being more polite than me beforehand. :P
> If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option.
But this is true of all jurisprudential theories, not only of originalism. That's why people campaign to get bills passed, but merely sit around and cross their fingers when court decisions are made.
> the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc. to adhere to originalist intent.
This is completely untrue: you're making up requirements in order to support originalism. It's like saying that houses are supposed to be tall and dot the landscape, and therefore should always be built aboveground. Originalism is an interpretative tradition like any other interpretative tradition. It doesn't have a special place. You can favor it, but that's a personal inclination, and not actually justified.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.... (Posner is one of judiciary voices calling for IP reform.)
http://www.constitution.org/cons/prin_cons.htm (Especially #17)
> If you don't like the Constitution as it is, and enough people agree that it's wrong, then ratification is your course. Pretending it doesn't say what you don't want it to should not be an option.
But this is true of all jurisprudential theories, not only of originalism. That's why people campaign to get bills passed, but merely sit around and cross their fingers when court decisions are made.
> the Supreme Court is supposed to attempt to interpret the Constitution as written with the help of other supporting texts of the day, ala the Federalist, Hamilton's papers, etc. to adhere to originalist intent.
This is completely untrue: you're making up requirements in order to support originalism. It's like saying that houses are supposed to be tall and dot the landscape, and therefore should always be built aboveground. Originalism is an interpretative tradition like any other interpretative tradition. It doesn't have a special place. You can favor it, but that's a personal inclination, and not actually justified.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.... (Posner is one of judiciary voices calling for IP reform.)
http://www.constitution.org/cons/prin_cons.htm (Especially #17)
No worries on tone. I do my level best to always assume good faith, and temper that with the knowledge that smart, reasonable people often disagree very loudly. ;-)
As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation.
Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported.
In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.
As for my statement on originalism, I don't believe it untrue, but I do believe it was poorly stated. The two basic schools of thought express the judiciary requirement to either pay heed to original intent or original meaning, with perhaps strict constructionism coloring either side of the equation.
Regardless, I think that my intent remains true, which is that politicians too often disregard both the original meaning, the original intent, or any strict or loose construction of the Constitution in order to bend the Constitution, through verbal gymnastics, into abstractly supporting whatever thing it is that they want supported.
In short, it is simply disregarded, and if a Constitutional challenge is posed, it is easily circumvented by hand-waving and word play. This, despite the primary job of the federal government (IMO at least) is to uphold the Constitution, and every member of the legislature, executive and judiciary having sworn an oath to uphold it.
This will never happen until the significant part of the population that considers the Constitution de facto divine writ is disabused of that notion. It's the same notion that gives rise to some of the more odious forms of American exceptionalism and encourages a firewall between ideological and academic views of that document.
It's pride that produces the odious forms of American exceptionalism, not the view that the Constitution is divine writ.
Why, praytell, would you prefer the academics give us a replacement? What great thing have the academics gotten right that would have us change such a document outside the conditions it sets forth as being requisite for such change?
Why, praytell, would you prefer the academics give us a replacement? What great thing have the academics gotten right that would have us change such a document outside the conditions it sets forth as being requisite for such change?
I never said (or implied) that I prefer the academics give us a replacement. And neither I nor the article claim that the Constitution should be changed or discarded using extralegal means. Your response, in contrast, is exactly the sort of knee-jerk thought-terminating shoutdown response I was alluding to.
I must have mistaken your contrasting academic and ideological as an implicit preference to the academic over the ideological, I did that simply because I presumed that you were against the ideological.
While I concede the point on not doing it in an extralegal means, I was wrong technically, I have a hard time reading the points in the articles and seeing how the foundational elements, such as a balance of powers, are preserved in what's put forward. From extending presidents and vice-presidents beyond their terms into 'guardians' seems to presuppose that such wasn't thought of by the founders, or that the solution they gave us (in this case the SCOTUS) isn't working.
So my issue is that the items that are being proposed are, in many instances, aimed at compromising key, and functioning, and often best of class, principles.
Again I put forward the item at the end where it mentions the example of the Articles of Confederation being completely scrapped. We are under some illusion that humanity has changed more than it really has. Much of the core components of the Constitution have not become irrelevant.
Even the point in the article where it mentions that the US has the least generic constitution, as if that were indicative of efficacy or the optimal. Certainly there's room for improvement, but to change the fundamentals, and in such sweeping ways, is really not advisable.
While I concede the point on not doing it in an extralegal means, I was wrong technically, I have a hard time reading the points in the articles and seeing how the foundational elements, such as a balance of powers, are preserved in what's put forward. From extending presidents and vice-presidents beyond their terms into 'guardians' seems to presuppose that such wasn't thought of by the founders, or that the solution they gave us (in this case the SCOTUS) isn't working.
So my issue is that the items that are being proposed are, in many instances, aimed at compromising key, and functioning, and often best of class, principles.
Again I put forward the item at the end where it mentions the example of the Articles of Confederation being completely scrapped. We are under some illusion that humanity has changed more than it really has. Much of the core components of the Constitution have not become irrelevant.
Even the point in the article where it mentions that the US has the least generic constitution, as if that were indicative of efficacy or the optimal. Certainly there's room for improvement, but to change the fundamentals, and in such sweeping ways, is really not advisable.
Sure, I think what you say is reasonable. I don't know how much I like the ideas in this article to be honest, and I'm not really qualified to judge them. I do like the fact that people are throwing out ideas and discussing them, even if they're not good ideas.
I'll give you a hearty amen on the virtue of throwing out ideas.
Become qualified. In order to criticize policy, you really only need two things: (1) a reasonably complete understanding of the situation the policy is addressing, and (2) a reasonably complete understanding of the policy proposed.
Both of these will always be imperfect, but one of the essential and too infrequently stated principles of democracy is that it is built to account for imperfection. It's built to assume every single decision and every single policy is wrong and will need correction.
...which, in the end, is what the article is about.
Both of these will always be imperfect, but one of the essential and too infrequently stated principles of democracy is that it is built to account for imperfection. It's built to assume every single decision and every single policy is wrong and will need correction.
...which, in the end, is what the article is about.
Huh? I do not think the parent was suggesting changing the Constitution outside of the mechanism it prescribes for doing so.
While you are correct, it does essentially advocate getting rid of it in that it puts forward the example of the Articles of Confederation.
My issue is that it's seeking to abolish what exists presently in whatever manner it can manage it, else why would it use the Articles of Confederation as an example? Modify things piecemeal.
My issue is that it's seeking to abolish what exists presently in whatever manner it can manage it, else why would it use the Articles of Confederation as an example? Modify things piecemeal.
If we decided to move to a parliamentary system, that would require rewriting two out of six articles in the Constitution. As it so happens, those 2 articles dominate the Constitution.
You would literally be tossing out 60% of it.
Does this mean the question of a parliamentary system is off the table for the United States? What would we look like as a parliamentary system. Or a hybrid presidential-parliamentarian.
You would literally be tossing out 60% of it.
Does this mean the question of a parliamentary system is off the table for the United States? What would we look like as a parliamentary system. Or a hybrid presidential-parliamentarian.
> If we decided to move to a parliamentary system, that would require rewriting two out of six articles in the Constitution.
No, it would only take about four sentences rewriting some of the electoral rules in Article II. Maybe a few more changes to Article II's appointment clause if you wanted a traditional parliamentary-style confirmed-as-a-block cabinet. The short version would be something like:
Amendment __:
The Senators and Representatives shall serve as the Electors for their respective states in elections for the President and Vice-President of the United States. In the event that an election for the President and Vice-President occurs in the period between the election of Senators and Representatives and the time that the terms of those Senators and Representatives commence, the newly-elected Senators and Representatives shall serve as electors and those Senators and Representatives whose terms are concluding and who have not been elected to the next Congress shall not serve as electors.
New elections for the House of Representatives shall be held within 60 days, and for the President and Vice-President within 30 days thereafter, upon the concurrence of any two of the President, resolution of the House of Representatives, and resolution of the Senate, provided, however, that no such election shall be held within 180 days of the most recent election for the House of Representatives.
No, it would only take about four sentences rewriting some of the electoral rules in Article II. Maybe a few more changes to Article II's appointment clause if you wanted a traditional parliamentary-style confirmed-as-a-block cabinet. The short version would be something like:
Amendment __:
The Senators and Representatives shall serve as the Electors for their respective states in elections for the President and Vice-President of the United States. In the event that an election for the President and Vice-President occurs in the period between the election of Senators and Representatives and the time that the terms of those Senators and Representatives commence, the newly-elected Senators and Representatives shall serve as electors and those Senators and Representatives whose terms are concluding and who have not been elected to the next Congress shall not serve as electors.
New elections for the House of Representatives shall be held within 60 days, and for the President and Vice-President within 30 days thereafter, upon the concurrence of any two of the President, resolution of the House of Representatives, and resolution of the Senate, provided, however, that no such election shall be held within 180 days of the most recent election for the House of Representatives.
The Constitution is by no means divine, but at the same time, its word is supreme.
That said, where the Constitution may be flawed, the Constitution also defines prescriptive measures be taken to remedy it.
The Constitution can be, and has been ratified, and is the appropriate measure to be taken whenever it's found lacking. The problem isn't that the Constitution is lacking, it's that those in power can simply 'interpret it' how they wish without fear of reprisal.
The president and legislature can make laws that violate the Constitution, so long as it's done in a way that isn't obviously egregious, and the worst case is that the law is overturned a decade later by a judiciary that, 98 times out of 100, simply defers to the legislative authority of Congress.
If we were watching a football game, and a referee simply decided to ignore an obviously valid touchdown, more Americans would be furious about that than there currently are about abuses of the Constitution, yet it's exactly the same principle.
Football has a set of rules, as codified in a rule book. If a rule isn't working, the NFL has the ability to change the rule, and may do so unilaterally, but at the same time, they're obligated to publish and make everybody aware of the changes to the rules.
Meanwhile, our legislature and executive branches ignore the rulebook of our nation, and a painfully small amount of people pay it any attention.
That said, where the Constitution may be flawed, the Constitution also defines prescriptive measures be taken to remedy it.
The Constitution can be, and has been ratified, and is the appropriate measure to be taken whenever it's found lacking. The problem isn't that the Constitution is lacking, it's that those in power can simply 'interpret it' how they wish without fear of reprisal.
The president and legislature can make laws that violate the Constitution, so long as it's done in a way that isn't obviously egregious, and the worst case is that the law is overturned a decade later by a judiciary that, 98 times out of 100, simply defers to the legislative authority of Congress.
If we were watching a football game, and a referee simply decided to ignore an obviously valid touchdown, more Americans would be furious about that than there currently are about abuses of the Constitution, yet it's exactly the same principle.
Football has a set of rules, as codified in a rule book. If a rule isn't working, the NFL has the ability to change the rule, and may do so unilaterally, but at the same time, they're obligated to publish and make everybody aware of the changes to the rules.
Meanwhile, our legislature and executive branches ignore the rulebook of our nation, and a painfully small amount of people pay it any attention.
We don't need a new Constitution. The one we have isn't working only to the extent that the size and scope of the federal government is far larger than it should be. We need a new federal government. The Constitution is fine.
A new federal government would require control by somebody other than Democrats and Republicans, otherwise it's just more of the same. However the US system of elections makes it very difficult to escape from a two party system.
As for size and scope of the federal government, that's surely been decided by elected representatives according to the procedures of the constitution?
As for size and scope of the federal government, that's surely been decided by elected representatives according to the procedures of the constitution?
An amendment eliminating the Electoral College would go a long way towards fixing the problems outlined in TFA. The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself.
> An amendment eliminating the Electoral College would go a long way towards fixing the problems outlined in TFA.
No, it wouldn't.
> The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself.
Not really; the EC isn't the key feature of the electoral system that produces a two party system, and the features that are -- the fact that most elections, and particularly those for the Congress, are by plurality or majority-runoff methods -- is nowhere in the Constitution, but is the product of statute (and, largely, state statutes.)
No, it wouldn't.
> The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself.
Not really; the EC isn't the key feature of the electoral system that produces a two party system, and the features that are -- the fact that most elections, and particularly those for the Congress, are by plurality or majority-runoff methods -- is nowhere in the Constitution, but is the product of statute (and, largely, state statutes.)
Fair point. How about an additional amendment spelling out an alternative method for elections to the legislative branch? Do away with plurality and introduce enumerated preferences?
Personally, I'd prefer no federal Constitutional amendments on the issue, and eliminating the federal statutory barriers to candidate-centered proportional representation, and then letting states try different approaches using preference voting, both in single and multimember districts, before imposing a specific uniform national approach as a Constitutional requirement.
First, because its a lot easier to achieve politically, and second, because while I've got pretty clear ideas of both the legislative and executive approaches I think would be best, I don't think its a big enough change that there is plenty of reason to be cautious in imposing a uniform national mandatory rule.
First, because its a lot easier to achieve politically, and second, because while I've got pretty clear ideas of both the legislative and executive approaches I think would be best, I don't think its a big enough change that there is plenty of reason to be cautious in imposing a uniform national mandatory rule.
States are already half way there at eliminating the electoral college with the National Popular Vote Interstate Compact.
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I have the same view as you, except I replace "larger" with "smaller". :)
I know, right? We need more staffing for initiatives like healthcare.gov, and honestly, the security organs aren't doing enough. A larger NSA will, undoubtedly, contribute to a more perfect union.
I think the American mess of healthcare precisely showcases the advantages of a simpler, government-run system. Ever since moving to Denmark, I have not been missing the bureaucratic mess that is the American health-insurance system. Also, much stuff here is built in-house by competent civil servants, not bid out to private-sector contractors like the ones who screwed up healthcare.gov (though that is, alas, somewhat changing).
I do think streamlining things would be nice. A large but simple government: everyone gets automatic healthcare coverage by right (like Medicare, but without age limits), everyone gets a basic income rather than some complex web of welfare, etc. Less bureaucracy and maybe even smaller government in terms of pages of regulation/etc., but larger "size" of government in the percent-of-GDP sense.
The American approach seems to prefer complex but low-benefit government, with huge piles of eligibility rules and private-sector provision, instead of just simple blanket benefits.
I do think streamlining things would be nice. A large but simple government: everyone gets automatic healthcare coverage by right (like Medicare, but without age limits), everyone gets a basic income rather than some complex web of welfare, etc. Less bureaucracy and maybe even smaller government in terms of pages of regulation/etc., but larger "size" of government in the percent-of-GDP sense.
The American approach seems to prefer complex but low-benefit government, with huge piles of eligibility rules and private-sector provision, instead of just simple blanket benefits.
There is a paradox in this article. If the politicians who are re-writing the constitution come from inside a dysfunctional system, how will they be able to ever come to a consensus?
>>If the politicians who are re-writing the constitution come from inside a dysfunctional system,how will they be able to ever come to a consensus
That is the issue with the current constitution, it doesn't allow a consensus; it doesn't have anything to do with politicians.
That is the issue with the current constitution, it doesn't allow a consensus; it doesn't have anything to do with politicians.
Sorry, why are we leaving it to the politicians again?
If you have a democratic system of any kind with any degree or option of delegation there are always politicians. They may have different titles, but they are essentially the same thing.
Then we all need to become politicians. I find this to be a reasonable thing to strive for.
Constitutions are wonderful things, and they can help set the tone of a nation. Yet, everything comes down to the people: the rulers and the public. As long as the rulers behave decently, things work well. When they don't, things fall apart. The Soviet Union had the most democratic constitution ever — and it meant nothing. The people "in charge" in the US have decided to behave like swine, on everything from ignoring swathes of the Bill of Rights to not talking to each other about policy. No amount of Constitutional rewriting will help with that.
To use an analogy near and dear to the HN readership: you can use the best language, framework, and source control system, but that won't help if you have incompetent programmers who do not communicate.
To use an analogy near and dear to the HN readership: you can use the best language, framework, and source control system, but that won't help if you have incompetent programmers who do not communicate.
> The Soviet Union had the most democratic constitution ever — and it meant nothing.
That's a popular statement, but its not really all that true. The Soviet Union had a Constitution with a very broad and progressive set of basic guarantees -- but also a very authoritarian set of limitations to those guarantees written directly into it.
E.g., in the 1977 Constitution, Article 39 states, in relevant part, "Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens" while Article 59 states, in full:
Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations.
Citizens of the USSR are obliged to observe the Constitution of the USSR and Soviet laws, comply with the standards of socialist conduct, and uphold the honour and dignity of Soviet citizenship.
And Articles 60 through 69 detail Constitutional duties, of citizens starting with, in Article 60:
It is the duty of, and matter of honour for, every able-bodied citizen of the USSR to work conscientiously in his chosen, socially useful occupation, and strictly to observe labour discipline. Evasion of socially useful work is incompatible with the principles of socialist society.
People who say that the Soviet Union had a model Constitution that was just ignored in practice probably haven't actually read the Constitution they are talking about. Or at least, I hope they haven't.
That's a popular statement, but its not really all that true. The Soviet Union had a Constitution with a very broad and progressive set of basic guarantees -- but also a very authoritarian set of limitations to those guarantees written directly into it.
E.g., in the 1977 Constitution, Article 39 states, in relevant part, "Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens" while Article 59 states, in full:
Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations.
Citizens of the USSR are obliged to observe the Constitution of the USSR and Soviet laws, comply with the standards of socialist conduct, and uphold the honour and dignity of Soviet citizenship.
And Articles 60 through 69 detail Constitutional duties, of citizens starting with, in Article 60:
It is the duty of, and matter of honour for, every able-bodied citizen of the USSR to work conscientiously in his chosen, socially useful occupation, and strictly to observe labour discipline. Evasion of socially useful work is incompatible with the principles of socialist society.
People who say that the Soviet Union had a model Constitution that was just ignored in practice probably haven't actually read the Constitution they are talking about. Or at least, I hope they haven't.
Oh, c'mon - you're almost there. Your analogy is begging you to take it a step further. Law, code. How good are human beings at writing massive rules-systems which avoid conflicting logic?
Not sure what amuses me more. The notion of citizen as end user, or the notion of lawyer as API consumer.
The problem is how to get to there from here. I'm not sure that the Constitutional Convention is possible.
The national popular vote might be possible. The electoral college was originally put in place to protect states' regional interests (via the extra two electoral votes per state). But the impact of those two votes was supposed to degrade over time, as the House (one EV per rep) was supposed to continue growing as population grew. If that had been allowed to continue growing, the Electoral College results would be virtually identical to the national popular vote by now. (Gore's EV total would have exceeded Bush's, for example.) If you get enough states to say they'll award their EVs to the national popular vote winner, as soon as 270 EVs worth of states agree to the same thing, then blammo - the Electoral College (as we know it) is kaput.
Once a national popular vote is in place, it would be easier to start considering things like national proportional representation, rather than the plurality system we have now. As it is, the electoral college kind of bakes plurality into the system.
One thing I'm still not sure of though - does proportional representation really improve anything? Wouldn't it basically result in political battles that would otherwise be settled in the primaries? You could basically look at the Tea Party and the Republicans as a ruling coalition in the house right now, and the battles between those two factions look pretty ridiculous. In proportional representation, it'd just mean there might be more of them (due to the spoiler effect of Democrats defeating Tea Party candidates after Tea Party candidates beat Republicans in primaries).
There's also a reflexive bias towards IRV in the analysis. Ranked ballots are great, but that counting system is more trouble than it's worth.
The national popular vote might be possible. The electoral college was originally put in place to protect states' regional interests (via the extra two electoral votes per state). But the impact of those two votes was supposed to degrade over time, as the House (one EV per rep) was supposed to continue growing as population grew. If that had been allowed to continue growing, the Electoral College results would be virtually identical to the national popular vote by now. (Gore's EV total would have exceeded Bush's, for example.) If you get enough states to say they'll award their EVs to the national popular vote winner, as soon as 270 EVs worth of states agree to the same thing, then blammo - the Electoral College (as we know it) is kaput.
Once a national popular vote is in place, it would be easier to start considering things like national proportional representation, rather than the plurality system we have now. As it is, the electoral college kind of bakes plurality into the system.
One thing I'm still not sure of though - does proportional representation really improve anything? Wouldn't it basically result in political battles that would otherwise be settled in the primaries? You could basically look at the Tea Party and the Republicans as a ruling coalition in the house right now, and the battles between those two factions look pretty ridiculous. In proportional representation, it'd just mean there might be more of them (due to the spoiler effect of Democrats defeating Tea Party candidates after Tea Party candidates beat Republicans in primaries).
There's also a reflexive bias towards IRV in the analysis. Ranked ballots are great, but that counting system is more trouble than it's worth.
Well, one of the biggest problems is that we have no idea what "there" actually looks like.
Australia has profited enormously from the US Constitution.
Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics. Take for example section 55 of our Constitution: it requires a tax Act to only deal with taxation, and only with one tax subject. This makes rider clauses flatly impossible.
Similarly, when we held a referendum to become a republic, the model proposed deliberately avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis.
Still. I don't think that the tide of crisis in the US has risen sufficiently high to trigger a mood for amendment, especially given the quasi-religious lionisation of the drafters of the US Constitution. They were intelligent men solving a problem, not prophets. Frankly I think a lot of them would be calling for amendments in order to solve the unforeseen dynamics that have subsequently emerged.
Settle in, there's going to more of the same in decades to come. There is a lot of ruin in a nation, as Smith observed, and the USA is the wealthiest and most powerful nation in history.
Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics. Take for example section 55 of our Constitution: it requires a tax Act to only deal with taxation, and only with one tax subject. This makes rider clauses flatly impossible.
Similarly, when we held a referendum to become a republic, the model proposed deliberately avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis.
Still. I don't think that the tide of crisis in the US has risen sufficiently high to trigger a mood for amendment, especially given the quasi-religious lionisation of the drafters of the US Constitution. They were intelligent men solving a problem, not prophets. Frankly I think a lot of them would be calling for amendments in order to solve the unforeseen dynamics that have subsequently emerged.
Settle in, there's going to more of the same in decades to come. There is a lot of ruin in a nation, as Smith observed, and the USA is the wealthiest and most powerful nation in history.
Australia has profited enormously from the US Constitution.
Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics.
If you read the Federalist Papers, it's interesting to note how much of history (going back to the ancients, ie Sparta, Athens, etc) the writers of the US constitution studied. That's not to say that they were perfect (I try not to hero worship myself; it often leads either to disappointment or distortions), but it's also nice to see the whole "learn from history" aphorism put into practice.
Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics.
If you read the Federalist Papers, it's interesting to note how much of history (going back to the ancients, ie Sparta, Athens, etc) the writers of the US constitution studied. That's not to say that they were perfect (I try not to hero worship myself; it often leads either to disappointment or distortions), but it's also nice to see the whole "learn from history" aphorism put into practice.
The Federalist Papers were written after the Constitution -- they were political ads for the campaign for ratification.
Oops, my bad; corrected.
EDIT: While I will agree that the Federalist Papers were strong rhetoric, and I can think of examples that contradict many of the axioms of them, I also believe it is very enlightening to read them because they reveal how much the framers of the US constitution had studied of other governments.
EDIT: While I will agree that the Federalist Papers were strong rhetoric, and I can think of examples that contradict many of the axioms of them, I also believe it is very enlightening to read them because they reveal how much the framers of the US constitution had studied of other governments.
They were also familiar with the concepts and theories that had not long before been published in France by Montesquieu, Rousseau, Diderot and others.
Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order. It was a struggle of a local elite against a remote elite. He exclusively uses "War of Independence" in his historical writing.
Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order. It was a struggle of a local elite against a remote elite. He exclusively uses "War of Independence" in his historical writing.
> Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order.
While they sometimes coincide, political, social, and economic revolutions are really separate things; the absence of the elements identified doesn't really say anything about whether or not it was a political revolution.
While they sometimes coincide, political, social, and economic revolutions are really separate things; the absence of the elements identified doesn't really say anything about whether or not it was a political revolution.
> avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis.
Sure you just have a representative of the Monarch who boots elected prime ministers when she becomes displeased with them, like axing the, of course, Labor PM in 1975.
When Charles I disbanded parliament, ultimately he found his own head chopped off. Australia's Liberals are lucky the modern Labor party is so milquetoast.
Sure you just have a representative of the Monarch who boots elected prime ministers when she becomes displeased with them, like axing the, of course, Labor PM in 1975.
When Charles I disbanded parliament, ultimately he found his own head chopped off. Australia's Liberals are lucky the modern Labor party is so milquetoast.
The Queen has no direct input into Australian affairs and the dismissal of Whitlam, which was found to be Constitutional, led immediately to new elections. Nothing had to be shut down and the whole matter was settled peacefully within a few weeks.
In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war. I'm just going to say that Australia is still in front on this one.
In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war. I'm just going to say that Australia is still in front on this one.
> In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war
The US has only had one civil war, and it wasn't a result of a Constitutional crisis between the President and the Congress.
The US has only had one civil war, and it wasn't a result of a Constitutional crisis between the President and the Congress.
I'm sorry, you're right, it was a constitutional crisis born of a policy dispute.
So, because the comments here are busy fighting over patriotism and tone rather than the substance of the article, here's a list of salient bits:
> When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forebear, has two houses. But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse.
> "No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people," Linz wrote.
> Most parliamentary systems, which unify the executive and legislative branches, have this sort of fail-safe mechanism. If a budget or other must-pass bill can't get passed, or a prime minister can't be chosen, then funding levels are placed on autopilot and new elections are called to resolve things. The people decide.
> The Senate, he says, should be expanded to give more populous states at least a bit more representation, and it should also include "national senators"—all former presidents and vice presidents, maybe others—whose job it is to guard national interests over parochial ones. Sabato's plan would also double the size of the House (to make representatives closer to the people) and enforces a nonpartisan redistricting process to end gerrymandering. Elections for president, Senate, and House, in Sabato's vision, are rescheduled to coincide more often, while presidents would serve a single, six-year term (the idea is to make their governing less political, while giving them enough time to implement change).
> Instead, Lessig, along with fellow Harvard law professor Laurence Tribe and many others, proposes a bottom-up form of public financing where voters get a voucher of, say, $50 off their taxes, which they can use to donate to candidates.
> If Americans managed to convoke a constitutional convention, they could draw on hundreds of possible tweaks with text already written, available online thanks to the Google-funded Comparative Constitutions Project. After hundreds of tries, we (humans) have gotten so good at chartering governments that we've developed a set of best practices.
> instant-runoff voting has become increasingly popular because it allows voters to rank multiple choices instead of picking just one.
> Germany's Pirate Party advocates something called "liquid democracy." A cross between New England-style town meetings and Facebook, this model of delegative democracy leverages social relationships and expertise on an open-source software platform for collaborative decision-making.
> Clay Shirky, a futurist at New York University, advocated for a "distributed version control democracy" in a recent TED talk. The New York state Legislature is already experimenting with this on its OpenLegislation platform, while the OpenGov Foundation, a nonprofit organization cofounded by Rep. Darrell Issa, R-Calif., is doing something similar on the federal level, allowing anyone to comment on and annotate legislation pending before the House.
> When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forebear, has two houses. But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse.
> "No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people," Linz wrote.
> Most parliamentary systems, which unify the executive and legislative branches, have this sort of fail-safe mechanism. If a budget or other must-pass bill can't get passed, or a prime minister can't be chosen, then funding levels are placed on autopilot and new elections are called to resolve things. The people decide.
> The Senate, he says, should be expanded to give more populous states at least a bit more representation, and it should also include "national senators"—all former presidents and vice presidents, maybe others—whose job it is to guard national interests over parochial ones. Sabato's plan would also double the size of the House (to make representatives closer to the people) and enforces a nonpartisan redistricting process to end gerrymandering. Elections for president, Senate, and House, in Sabato's vision, are rescheduled to coincide more often, while presidents would serve a single, six-year term (the idea is to make their governing less political, while giving them enough time to implement change).
> Instead, Lessig, along with fellow Harvard law professor Laurence Tribe and many others, proposes a bottom-up form of public financing where voters get a voucher of, say, $50 off their taxes, which they can use to donate to candidates.
> If Americans managed to convoke a constitutional convention, they could draw on hundreds of possible tweaks with text already written, available online thanks to the Google-funded Comparative Constitutions Project. After hundreds of tries, we (humans) have gotten so good at chartering governments that we've developed a set of best practices.
> instant-runoff voting has become increasingly popular because it allows voters to rank multiple choices instead of picking just one.
> Germany's Pirate Party advocates something called "liquid democracy." A cross between New England-style town meetings and Facebook, this model of delegative democracy leverages social relationships and expertise on an open-source software platform for collaborative decision-making.
> Clay Shirky, a futurist at New York University, advocated for a "distributed version control democracy" in a recent TED talk. The New York state Legislature is already experimenting with this on its OpenLegislation platform, while the OpenGov Foundation, a nonprofit organization cofounded by Rep. Darrell Issa, R-Calif., is doing something similar on the federal level, allowing anyone to comment on and annotate legislation pending before the House.
I love the "liquid democracy" bit. Sounds like a Silicon Valley startup pitch. Catchy name, tons of buzzwords, and totally incomprehensible.
It's pretty simple actually. Imagine direct democracy, but with the option to delegate your vote to someone else, who can delegate their votes to another person, and so on. At the end of the day, the major powers aren't based on traditional parties but on layers of delegation.
The obvious danger here is its tension with the secret ballot. Currently, your boss can put all sorts of pressure on you to vote a particular way (even if it is illegal), but he ultimately can't step into the voting both with you. In contrast, with "liquid democracy", the chain of delegation may afford all sorts of ways to decide how someone "voted".
The obvious danger here is its tension with the secret ballot. Currently, your boss can put all sorts of pressure on you to vote a particular way (even if it is illegal), but he ultimately can't step into the voting both with you. In contrast, with "liquid democracy", the chain of delegation may afford all sorts of ways to decide how someone "voted".
Aside: Compare and contrast the results of nation-state democracy before and after mandatory secret ballots.
But also arguably disruptive, curve-jumping, and paradigm-shifting if it scales and gets wide adoption.
If. :P
If. :P
It's a bad idea.
1. It will worsen, and not improve, the effect of populism and demagoguery.
2. The complexity of overlapping and differently drafted proxy statements will cause legal nightmares. There will be ceaseless litigation to sort out questions of which proxies count, which proxies supersede which other proxies etc etc.
1. It will worsen, and not improve, the effect of populism and demagoguery.
2. The complexity of overlapping and differently drafted proxy statements will cause legal nightmares. There will be ceaseless litigation to sort out questions of which proxies count, which proxies supersede which other proxies etc etc.
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Why not use the one we have now? It hasn't been used in 50 years.
The constitution has the ability to modify it built-in. The main problem seems to be that we no longer view that as a viable option.
The next Constitution should be a set of mathematical proofs or computer program. At the very least, it will make sure law makers and enforcers are capable of higher order thinking.
I wonder how to properly frame the problem from that approach.
I wonder how to properly frame the problem from that approach.
> The next Constitution should be a set of mathematical proofs or computer program. At the very least, it will make sure law makers and enforcers are capable of higher order thinking.
No, it won't. It'll just make it even easier for politicians to obscure their violations, since most of the public will understand it.
Constitutions don't need to be self-executing, they need to be an effective tool for the public to hold government accountable to, and if the problem is that the public doesn't care enough to hold government accountable, no amount of reforming the Constitution is going to help -- the thing you have to do first is convince the public again that it is important to have a government accountable to limits set by the public.
No, it won't. It'll just make it even easier for politicians to obscure their violations, since most of the public will understand it.
Constitutions don't need to be self-executing, they need to be an effective tool for the public to hold government accountable to, and if the problem is that the public doesn't care enough to hold government accountable, no amount of reforming the Constitution is going to help -- the thing you have to do first is convince the public again that it is important to have a government accountable to limits set by the public.
A few years ago, Iceland made the news (with some distortion) by "crowdsourcing" a new Constitution. [1] I find this an intriguing project, but getting sufficient representation from a nation of 300 million is several orders of magnitude harder than getting the same for a nation of 300 thousand.
What if we could do it anyways? What would an IT project for creating and maintaining a Constitution look like? We talk about version control for legislation, but what kind of systems might we build in order to maintain the Constitution itself? What kind of review process would we put in order to maintain data truth? Or perhaps we wouldn't have truth, but rather distribute it and fragment things while converging it periodically? Would that be possible? How, why?
[1] The scare quotes are because the headline actually misrepresented the depth of the citizens' actual impact. You can do the googling if you want details.
What if we could do it anyways? What would an IT project for creating and maintaining a Constitution look like? We talk about version control for legislation, but what kind of systems might we build in order to maintain the Constitution itself? What kind of review process would we put in order to maintain data truth? Or perhaps we wouldn't have truth, but rather distribute it and fragment things while converging it periodically? Would that be possible? How, why?
[1] The scare quotes are because the headline actually misrepresented the depth of the citizens' actual impact. You can do the googling if you want details.
For those that TLDR all you have to know is that it's The Atlantic and leftists don't like the constitution because it get in the ways of their nefarious and devious plans for the country.
The fact that it sees the pain and dysfunction as symptoms of a systemic/endemic flaws is telling of a mentality similar to seeing children as inconvenient drains on environmental integrity or child-birth as merely some destructive medical condition from which women should be spared any time such is possible.
This kind of pride and double guessing of the 'anti-fragile' system that is emergent from the US Constitution is the very thinking that's going to cause more problems for our nation than the forward thinking policies of the Greenspan era that gave us snapshots of prosperity through propping intellectual ideas RATHER than promoting true progress as it comes with all it's warts and growing pains.
You don't win the future by throwing what's survived into the trash bin on account that it's not pretty or efficient enough for your liking or your intellectual enlightenment.