I don't think it's a good article though. In particular, I don't think it coheres. It's about how the modern Constitution has become "un-amendable", but it spends a big chunk of the middle of the piece demonstrating the Constitution was never really all that amendable: successful amendments are extraordinarily rare, especially when they're about big-ticket issues. Our biggest structural changes occurred after an enormous civil war.
There's a sort of obvious framing to the piece that the Constitution should be more fluid and easy to amend. I think 2022 is a very weird time to prioritize that. I'm not a doomer about US politics, but they're not in a very good state right now. Lepore talks about national abortion, immigration, and firearms policy and how they'd be impacted by a more readily-amended Constitution, but I think she should take a wider view and look at things like how speech and free association would be impacted.
I'm a liberal, in a cohort of people this article portrays as atypically open to changing the Constitution, and I think the rigidity of the Constitution is probably it's greatest strength.
I _very much disagree_ with the assertion that the US constitution's rigidity is its greatest strength. Similar to taking on too much technical debt, this rigidity makes it impossible to update in response to changing circumstances! I'm not convinced that's ever a good thing; what good reason is there to believe that a constitution conceived over 200 years ago (when the US had roughly 1% the people, ~1/3 the land, legal slavery, an early-industrial / agrarian economy, etc., etc., etc.) is useful today?
Even if we agree that "free speech" and "free association" are reasonable universal rights (and I think we do), what these concepts mean in practice must necessarily evolve as technology gives us new ways of speaking and associating - and we will _always_ have to deal with the difficult question of what to do when someone, through exercising these rights, deprives others (intentionally or unintentionally) of the ability to exercise theirs. This balance necessarily changes as our methods of exercising free speech and association change.
Overall, I'd argue that this rigidity - in the constitution, in the calcified two-party system, in US politics / political systems in general - maybe started out as a unique strength, but is _very much_ a weakness in more complex and rapidly changing times.
[1] https://en.wikipedia.org/wiki/Amendments_to_the_Constitution...
What good reason is there to believe a politician today could do better? Or are you simply trying to use slavery as a cudgel to get people to not argue with you? Politicians today are a ruling class that are worth hundreds times more than the average citizen, receive better benefits like healthcare, can use privileged information for financial gain, are often large land owners, etc. Nothing has changed - at all. If anything, it's probably gotten worse at scale.
> Even if we agree that "free speech" and "free association" are reasonable universal rights (and I think we do), what these concepts mean in practice must necessarily evolve as technology gives us new ways of speaking and associating - and we will _always_ have to deal with the difficult question of what to do when someone, through exercising these rights, deprives others (intentionally or unintentionally) of the ability to exercise theirs. This balance necessarily changes as our methods of exercising free speech and association change.
Political interpretation by the lunatics in a post-mcarthy world are the reason that people think the bill of rights should be flexible. "But the founding fathers never talked about the internet!" is a very pathetic excuse from a very pathetic ruling class that currently controls this country. Any violation of the freedom of speech no matter the medium is a deprivation of rights. We have chosen to interpret it differently. Once you start opening this can of worms up you get all sorts of problems with what is intentionality, what is association, does "free speech" include things I don't like, etc. Right now there are plenty of politicians on every side of the spectrum who'd love to ban everything they don't like.
What I guess I am saying is people are the problem. Greedy, slimy, humans. The world is no more complex at it's core than it was 200 odd years ago. We have made it complicated by spending time finding gotchas instead of treating the constitution as a series of unquestionable meta-laws. Fix the politicians. The document is fine. To use your analogy, allowing simple amendments would be like changing the entire PR review process because a handful of malicious engineers refuse to ever follow the rules. Just fire the engineers!
Seems like Ireland lasted 2 years before (in practice) removing all constitutional limits on government power forever. Oh sure, it's only "if so resolved by both Houses of the Oireachtas" but that's slim comfort to me.
Ireland has population of ~5 million or about the same as Alabama. It isn't the best example.
Instead of a general critique could you instead offer a specific general improvement?
I feel like the author is looking at using amendments as a way to implement legislation that is permanent. Our Federal constitution is fairly concise, whereas some State constitutions are so easy and readily amendable that legislation gets codified in almost every session [1]. The challenge with doing this is that the constitution itself converges into just another body of law.
[1] https://en.wikipedia.org/wiki/Constitution_of_Alabama
Edit: Instead of "permanent", "decisively" would be more appropriate. A constitution that can easily be amended can just as easily be un-amended. A response to this comment said "way to settle national controversies" which seems far more fitting than what I originally wrote.
What it really does is sap political power from the Supreme Court, which is a reasonable goal for someone like Lepore to have right now.
Concise to the point of vacuous. It says practically nothing. It describes only the barest outlines of government, and effectively all of the actual implementation has been a matter of legislation, judicial decisions, and tradition. Individual words are scrutinized as if they will somehow be unambiguous if we stare at them long enough, or bring in enough cherry-picked outside context.
The section on the courts is especially hilariously short. It basically says "We should have one". Everything after that -- included the vaunted ability of the Supreme Court to "interpret the constitution", is a matter of them deciding that it was something they were going to do and everybody else going along with it.
It's a shitshow through and through
Yeah. I’m with you there. It’s that way by design along with things like the presidency not having ultimate power.
The system’s not perfect, but let any modern politician make substantive changes, and I’d bet heavily on the system getting worse.
I tend to agree more with Thomas Jefferson:
"On similar ground it may be proved that no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.—It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19 years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assemble themselves. Their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal."
https://jeffersonpapers.princeton.edu/selected-documents/tho...
The constitution should be hard to amend, its purpose is to give stability. That you disagree with parts of it is one thing, but remember that if it's easy to amend, there's no guaranteed it will be in a way you like.
It's not just the Constitution, it's the entirety of the American system, which seems designed to use "checks and balances" as veritable roadblocks to slow everything down.
I agree that - in theory - it's great and very smart, because if the government was indeed designed around truths that are self-evident (i.e. inherently "true" and immutable) than everything should settle at the mean of those truths.
The problem is that when the country was being formed, incredible compromises to those self-evident truths were made left, right and center. So we ended up with a country that claimed that all men are created equal but did not actually adhere to this.
Further, the Constitution & Bill of Rights is full of things not related to these core truths. They tend, often, to be functions of their time. Those are the things that should be open for change, and the core truths should be canonized and unbreakable.
lol - and yet we did eventually fix it. So much for the unchangeability of US government. So yeah, the rigidity still worked - and continues to work. It's absolutely not a bug, but the most important feature in preserving our republic.
It's the supreme law of the entire country. Amendments shouldn't come easy.
"Scalia said fewer than 2 percent of the population could prevent enactment of a constitutional amendment. “It ought to be hard, but not that hard" https://www.abajournal.com/news/article/how_scalia_and_ginsb...
The bizarre circus of Supreme Court nominees coyly pretending to be apolitical in a plainly partisan nomination process is another indicator that there's something wrong.
The 18th Amendment (Prohibition) is an example of what can go wrong with amendments.
Constitution design is an academic field, a very niche area of political science, and nobody would ever implement anything like the US Constitution today. It would be like using ALGOL for a new project today instead of Python or Java.
The US Constitution was very much a version 1.0 project, written before people even knew political parties would be a design constraint. Constitutions are on like version 5 or 6 now. (I'm making up numbers but you get the idea.)
Scalia has a great speech on this. Our Constitution has been outdone several times over the centuries, even by Russia. Ours is the best, though, because ours is still standing and the others are not. The bottom line is that the gridlock and glacial pace of progress that others decry is what gives the Constitution its robustness that other lack.
I mean, Americans always talk about their Constitution's supremacy, but they never want to give it to others (not even to Puerto Rico).
For the most part I think the constitution is fine, but I also think it's standing in the way of having meaningful debates about the future of the country because half the debates can be quickly shut down with "the constitution".
A key test for a constitution is whether a substantially similar constitution would pass the amendment process today. If it wouldn't, the constitution is obsolete and should be rewritten. If people no longer believe in the spirit of the constitution, they will increasingly try to subvert it. Institutional checks and balances may protect the constitution for a while, but if people don't believe in the constitution, they probably won't believe in the institutions either.
Now these are all very successful societies relative to most of the world but imo its pretty hard to argue that the US is special.
The article is just a whine-fest about how "we could ban things I don't like and make law things I do!" Just from the perspective of a historian which doesnt mean they're immune to someones extreme biases.
> It's about how the modern Constitution has become "un-amendable", but it spends a big chunk of the middle of the piece demonstrating the Constitution was never really all that amendable: successful amendments are extraordinarily rare, especially when they're about big-ticket issues. Our biggest structural changes occurred after an enormous civil war.
Indeed, the greatest success of America is the unamenability of the constitution. Yes, in edge cases like slavery you would wish something could be done. However, nothing in said constitution explicitly permit slavery. Interpreted in the most charitable way slavery should've been unconstitutional from the get-go. At any rate, the constitution is about as close as we can come to a "ground truth". Other countries have constitutions that are more amenable. As a result, there's political chaos all the time as every politician does their own thing and undoes other things. Since these are ground truths all other laws can be forged from them. It appears this historian needs to go back to US Government 101. Nothing in the constitution explicitly forbids abortion, immigration, etc. In fact, the constitution should take no position on these issues. They are not "ground truth" rights that we are given for simply existing. If you head down that path, then suddenly we are codifying what will end up looking like the 10 commandments instead of a book of rights. The constitution is not a moral guide. It's a series of meta-laws from which all others can (should) be derived.
I feel like the first amendment is one of the few bipartisan issues of the constitution, though. The only issue seems to stem from those who misinterpret it as some almighty protection against being abrasive. It's simply meant to say that the government can't punish you for your speech or other association outside of a few cases where you are endangering others. I'm not quite sure if even the most diehard liberal or conservative wants to enable more of that from the government.
there are certainly topics within first amendment rights that can be interpreted, but that's a different matter than addressing the constitutional amendment.
What if you’re not a liberal but haven’t figured that out yet? Sanctity of the constitution appears to me to be the defining feature of much conservative thinking, or so they say.
Obviously currently, it's left wing talking points that they want enacted - abortion, gun control, probably free speech limits. I'm sure if/when the court gets packed with Democrat-leaning judges, Republicans will do the reverse.
I'm fine with both sides doing that - it's politics after all - it's when activists try and portray their attemps as non-partisan that it annoys me.
When the author throws in left-wing dog whistles like "There’s a good reason that American constitutional amendments are not decided through national referendums. (Consider, after all, that Brexit was decided by a national popular referendum.)" you can immediately determine their motives.
Constitutional amendments were supposed to be easier than right to rebellion. That’s not really the case any more. At the same time, the supreme court is just ignoring the law, over the objections of 66-75% of the population (depending on the ruling).
These are dark times for US democracy. There’s no evidence things are working as intended.
Further, the objections of the population have nothing to do with the judicial branch and everything to do with the legislative branch. The courts are not and have never been democratically elected entities.
I think they were more worried about entire _states_ going into rebellion and not factions of populations spread across them.
> These are dark times for US democracy.
I don't think that's warranted. I would say these are the growing pains of a country now fully entering the age of always available connectivity with a founding document created when horse travel was the only credible way to travel across it.
> There’s no evidence things are working as intended.
You could say this of many things. The highly monopolized state of our media in the face of this new era is definitely a baffling outcome, and I definitely spend a lot of time thinking about the connection between this and the previous statement.
I for one would fear living in a country where the courts were swayed by public sentiment.
SCOTUS can be overruled by the states themselves via amendments. They’re not ignoring law at all.
The US system has little d democratic aspects but it is not a democracy. It was intentionally setup to protect the minority from the majority in critical respects like constitutional amendments. Also, population shifts are ongoing and the coastal blue populations are the most rapidly aging in the country and the increasingly red US born Hispanic populations are the most rapidly growing. The future may contain some surprises.
https://constitution.congress.gov/constitution/amendment-10/
1. The 17th amendment (1912) - Electing senators by popular vote broke the state representation in the federal government. States no longer had representation to protect their sovereignty.
2. The federal reserve act (1913) - enables government to self-fund by printing money and enforces everyone onto a single, centrally controlled bank.
3. The 16th amendment (1913) - Federal income tax - allows the federal government to directly tax citizens for the first time.
Those three amendments, in effect, decimated the federal system and centralized power. After that, they could pass what ever they wanted.
IMO the internet is re-igniting a public debate and push towards populism -- that and that's why you saw the 2008 rise of Ron Paul, Occupy Wallstreet, Tea Party, Bernie Sandars and now MAGA.
(yes, it was coupled with a financial crisis, but the government response led to push back).
So it's not so much that half the country is dead against particular measures because of their merits or values, but they will be set against change it simply because the other side wants it.
Because it serves to maintain a delicate balance: donors fill the coffers of both parties and offer cushy jobs after their term in office, and in return politicians don't pass any legislation that can meaningfully threaten the bottom line of those donors, even though that kind of legislation would actually help the most people and be quite popular. This is why large corporations donate almost equally to both parties, from defense contractors to pharma.
Instead of those meaningful changes which would unite the country, politicians set up culture war issues to set half the country against the other half, because culture war issues are semantic language games where nobody wins and everybody loses. It's bikeshedding writ large.
Relying on consensus to get things done AND designing a system to prevent consensus (party system, FPTP etc) is really just a recipe for deadlocked government. The result is the main failing of the US system: things are dictated by the craziest holdout.
I don't think this is a design choice (thinking so would be pretty damning for the founding fathers...). I don't think it serves the US well. I think it is only how the system "should" work in the sense that it is the natural failure mode of the system as written. If a bad, rushed coder fails to put divide by zero protection in, the program "should" crash when someone puts a 0 in. That doesn't mean that isn't a bug to fix though...
For example, I can read the second amendment --
> A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
It is clear the national firearms act is outright unconstitutional by any sane reading, yet it was deemed "okay" by SCOTUS and passed by congress. The amendment was ignored for nearly 80 years and finally opinion seems to be shifting.
In a similar vein, the supreme court previously created a problematic "roe v wade" ruling. Regardless where you stand on the issue, SCOTUS effectively legislated that decision into existence. There was never any support in the constitution for their claims (the cut-off date in particular) or any laws passed (hence it was overturned and returned to the states). It's called "legislating from the bench".
In other words, our constitution is interpreted by a court which can just decide it means something that it doesn't.
It seems we can't repeal the amendments, but we sure can ignore them. And we can't create new amendments, but we sure can just implement them (Roe v Wade).
Personally, I'd like to see the constitution fully implemented to the furthest possible extent. We may disagree on issues, but to the point, we can amend them. A full implementation would also create more sovereign states which enable a diversity of ideas and plethora of ways to live.
which is why prohabition never happened.
At the time (and still to this day) alcohol and drugs made and destroyed empires. The Dutch Empire was based on Gin. The British Empire on Opium and Rhum. Russia on Vodka. France had Bourbon.
For people who want the constitution changed, thats the dilemma they have to deal with. If they don't have enough support to do it the regular way, then maybe the more silly and extreme solutions aren't justified either.
Of course this has nothing to do the actual Constitution. It's a statement about each party's (dis)satisfaction with the current success of their party.
The optimist in me wants to believe that even in this polarized culture politicians could compromise and find a middle ground on many issues, conceding to the other side on one issue in order to get something for their side for another issue. That could be done without any changes to the Constitution. But alas, the middle ground has been lost.
This requires clarification. If our government was elected based on a "one person one vote" principle, Republicans would be nearly guaranteed to lose the presidency and Congress. Since 1992 there have been 8 presidential elections. Republicans only won the popular vote once (2004) but also won the presidency in 2000 and 2016. Similarly, if you look at Congress, especially the Senate, Republicans have outsized power due to the additional votes that those in less populated/rural areas get.
The fact is that our Constitution reduces voting rights for those that live in populous urban areas and gives outsized voting rights to those that live in rural/sparsely populated areas. California has nearly 70 times the number of people as Wyoming, but they both get 2 senators. Even looking at the Electoral College, California only has 18 times as many electors as Wyoming, despite having 70x the people.
This rationale/compromise may have made sense in the late 1800s, but it's difficult for me to see how this is a good thing now. I wonder how many presidential elections we can go where the "winner" receives fewer votes than the "loser" before people seriously question what the purpose of our democracy is.
One other note, the equal-number-of-senators-per-state is the one thing that the Constitution explicitly forbids changing by amendment, the last clause of Article V.
It's very deliberately built in to the American political system that the will of the half-plus-one majority does not dictate the direction of the whole country. If anything, the ever-increasing Federalization of laws and policies is the real problem: Californians living like Californians is fine, and Wyomingites living like Wyomingites is also fine, but there is a problem when one tries to make the other live more like them.
Let's have fifty vibrant laboratories of democracy.
> how many presidential elections we can go where the "winner" receives fewer votes than the "loser" before people seriously question what the purpose of our democracy is.
I'm already questioning that myself, considering roughly half of all eligible voters don't even bother to show up for presidential elections -- let alone midterms, which is more like two thirds. If we consider that chunk that does not vote as being OK with the status quo, then I think we have a lot of room left before American democracy is really imperiled.
yup, that was by intention. That's also exactly why the senate was erected; they didn't want smaller states to be ignored by campaigns that could ultimately just focus on enough electoral votes to win the election.
>This rationale/compromise may have made sense in the late 1800s, but it's difficult for me to see how this is a good thing now. I wonder how many presidential elections we can go where the "winner" receives fewer votes than the "loser" before people seriously question what the purpose of our democracy is.
I'm not sure. the exact same gaming would work today if we aboloished the Electoral College tomorrow. The same gaming could happen today; you focus on CA, NY, TX, and FL and you have a large chunk of the population talked to in one swoop. But that leaves 40+ states de-prioritized. figuring out how to solve that without putting the fate of the country in Ohio's hands is a delicate balance to seek.
I'd personal prefer for spillover voting to help ease off the polarization of it all, but that would be an even more uphill battle. Obviously both parties would not want to lose any potential power.
I agree that the Electoral College needs reform but I am sure that we will not agree on the solution. I think that each state, being an equal member in the union, should have an equal number of electoral votes. Equal votes per state reinforces the purpose of the republic. The republic is supposed to ensure that each state can live the way they want and have military protection. Having one state with more say in the executive is antithetical to a republic. The president is supposed to represent the union, not the people, on the international stage.
Doing away with the Electoral College and going for a direct democracy is a recipe for disaster. Direct democracy does not work on a large scale.
The answer to much of the contention we have today is to return to the limited government that was originally described in the Constitution. Power has become too concentrated in DC and now everybody is playing the game of thrones.
[1] https://constitution.congress.gov/constitution/amendment-17/
[2] https://www.pewresearch.org/fact-tank/2018/05/31/u-s-populat...
True in the very short term, but that's only because neither party really targets the popular vote. Both would realign their platform and bases accordingly, and we'd just end up with a new system with new flaws.
However, if you are correct, that would mean a de facto one-party state. That's downright frightening to me, even if I am a member of that party.
It's still a good thing.
The Republicans are competing under the rules that exist - and they’re very, very good at it. Do you think they would blindly wander from defeat to defeat without seriously changing tactics?
They are playing a game to win the electoral college, expect if it were popular vote they would play a different game with different policies
Nit: "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
It doesn't forbid it, it just requires states losing equal representation to consent to the change.
Of course, it also doesn’t limit, say, reducing the powers of the Senate, including transferring them entirely to either the House of Representatives or a new third house of Congress, leaving Senators as purely decorative fixtures.
That's a meaningless observation. If the rules were different such that the popular vote mattered more, then Republicans would play a different game. Roughly the same equilibrium would be achieved in the end.
IMO, the main thing wrong with us federalism is that the western states ought to be broken up
Not at all. Republicans have won the Congressional popular vote more times than democrats since 1992, and are about to win it again. There has only been one election since 1992 where Republicans won more House seats while losing the Congressional popular vote. They’re 2% ahead in the generic Congressional ballot right now. You can’t blame that on gerrymandering or whatever.
Republicans consistently lose the Presidential popular vote because their incentive is to run the most right-wing person who can win the vote that actually counts, the Electoral College vote. For Congress, republicans have to contest at least some seats in New York and California. But for the Presidency they don’t care if a single person in those states votes for them.
If we used a nationwide popular vote, the GOP would just run someone closer to the median of their House delegation, which consistently does win the popular vote.
To get an idea of what things might look like in a counter-factual world, look at this three-way poll in a Cheney/Trump/Biden matchup: https://www.prnewswire.com/news-releases/the-premise-poll-li.... Biden would get 36%, Cheney 20%, and Trump 45%. Shifting to a popular vote would move the coalitions around a bit: Republicans would have to care a little more about holding onto Romney/Biden suburbs. But it doesn’t mean consistent democratic majorities.
The intention was for state legislatures to nominate electors who would then vote for president.
It wasn't until mid 1800's that states started elections (of electors) by popular vote. Note: still through an elector proxy.
Also this is not a government run by popular vote, it is a mixture of state and population based government and also representation democracy not direct democracy.
In The Federalist Papers, James Madison explained his views on the selection of the president and the Constitution. In Federalist No. 39, Madison argued that the Constitution was designed to be a mixture of state-based and population-based government. Congress would have two houses: the state-based Senate and the population-based House of Representatives. Meanwhile, the president would be elected by a mixture of the two modes.
The fact that people feel that states shouldn't have equal say and equal power is to me a huge breakdown of society.
Having California run the entire country would be a nightmare.
Not when refusing to compromise is your parties main platform.
This seems like a scathing indictment, but the point of a political party is to advance an ideological agenda. "Compromise" on bureaucratic issues is essential and acceptable, but you rarely hear about that. There are all sorts of issues that Republicans and Democrats refuse to compromise on - isn't that why people have divided themselves along these lines in the first place?
Unfortunately the left has won in this regard. The left moves so hard and fast to the left that even the right can no longer "refuse to compromise." If they don't, they are bigots at worst and uncultured, out of touch imbeciles at best.
1. It was written under the assumption that there would be no standing army, so the citizen militia would be the backbone of the defense of the nation. But that isn’t where we are today, unfortunately.
2. A large part of the US seems to believe that getting rid of guns would make the US less violent. I suspect they are completely wrong about that. Our National myth is about using violence to successfully solve problems, from the original revolution through our successes in several wars.
So we are stuck with an extremely divisive issue which really has no impact on anything real.
"But know this, that in the last days critical times hard to deal with will be here...For men will be...not open to any agreement"
Wouldn't hold my breath on this improving. To the contrary ..
It's going to continue to get worse.
Conservative values generally mean trying to keep things the same. A hard to change set of rules supports this. Progressive values generally mean trying to make changes [to improve society]. Being able to change rules supports this.
We should therefore expect conservative people to want a hard to amend constitution and progressive people to want a easy to amend constitution, regardless of whether or not they are in power. I expect this asymmetry to be visible in whether more ammendments are proposed (and ratified under) progressive or conservative regiemes.
So I think you are technically correct on the definition of progressive and conservative but I would take issue that the progressive side is always trying to change things to better society. After all prohibition, legalized lobotomies, and eugenics we're a big part of the progressive policy in the late 1800s and early 1900s, of course so we're things like labor laws, income tax and other more ambiguous things like the direct election of senators.
My point is not all movement is forward movement.
It’s interesting that people want to restrict rights in one area, and expand them in another. The people and parties just disagree on which is which.
The tool (i.e. The Constitution) is fine. The problem is at this point it's being used as a hammer and it's a screwdriver. Ya can't blame the tool for those who insist on misusing it.
..is one of those percentages that comes up in survey results so often that I can't help but distrust those results. It feels like something is being gamed to come up with that, and this one managed to get it twice.
What matters is that the society itself believes in the traditions of democracy, freedom and the rule of law. If that withers and dies, perhaps because people no longer consider these ideals to be as important as their pet ideologies, or because the citizens no longer share a common epistemological reality, or because oligarchs are given free reign to buy politicians, courts and media, then it doesn't really matter any more what your vaunted Constitution says.
US only got Presidential term limits several decades ago. Simply codifying a tradition after it was challenged. The term limits haven’t always been a net positive.
Something more modern to prevent tyrants could be helpful.
Also, you call the US constitution unchangeable? It's quite laughable. Not only there is a bunch of amendments, but real power structures have changed as well. Starting from the increased size and power of the federal government as opposed to what was envisioned by the Founding Fathers, following by the two terms restriction on presidents, and ending with the creation of the central banking system, which arguably goes against the spirit of the Constitution.
I see you're not a fan of Alexander Hamilton. The (first) US bank predates the other items in your list, though.
Today it is a mediacracy undergoing a violent phase transition from tv and newspapers traditional media control to social media and search algorithms.
At the root of the problem is that the media is owned by very few oligopolies, and they answer to no one. The potential power from controlling them outshadows their profits.
I think these men were more aware of it than possibly anytime in history. One of the biggest reasons that the US was able to become independent was because of the ability of people to spread their ideas through the mass media of newspaper that had recently become something that pretty much anyone could get access to. Or would you argue men who saw the power of the word with Thomas Paine's "Common Sense" or made their arguments to the people through the nationally published "Federalist Papers" really were unaware of the power available when people could freely communicate ideas.
To pretend that mass media is a new phenomenon is to ignore that there have always been massive changes and shifts in society as media has evolved from the printing press to the radio each one marked a period of turbulence, and each time we have adapted and moved forward. To pretend that we are uniquely privileged in all of history as inherently understanding more than our forefathers merely because we can do it faster, is in my mind, the height of arrogance.
No person thinks they are the intellectual superior of Newton at physics just because we have relativity, I don't know many who would argue they'd surpass Turing as a Computer Scientist just because we have structured languages, I think we could assume that there is at least some wisdom in those who revolutionized (no pun intended) their field?
It's one thing to see newspapers in 1776 and another thing entirely beyond human predictive ability to understand how decades and centuries can lead to inequality levels and power feedback loops with private media ownership.
I don't think I'm smarter, I think this is similar to code in that no matter how talented is the programmer, sometimes you just have to run it to see. It's not about anyone's superiority or foresight, it's about reality surprising even the smartest.
And I'd rather have a mediocre programmer able to dynamically debug than the most of talented programmer on earth writing static untested code.
I'm not on the side of censorship at all. I think free communication of ideas is good.
I'm just not sure if the 1776 revolution could have happened at all after decades of mind numbing propaganda by the British, after they would call their ideas populism daily and train people to associate it with it negatively. After the entire population was immunized against revolutionary ideas as fake news, conspiracy theories, terrorism, danger to pubic safety, misogyny, offensive. These things didn't happen back then. If the British had control over the newspapers and constantly spread propaganda that the cause was lost, how many would volunteer?
I also suspect at this point there is fault injection. There are actors spreading false information with the intention of catching others believing it.
I saw some cases where fact checkers had access to suspiciously hard to get information "disproving" a claim someone else picked up. The kind of information you're more likely to know because you created the lie in the first case. In the specific case I could even quantify the probability that they stumbled on that information (it required a choice from thousands of items, with very low probability of being the disproving item), and it had a very low probability.
Democracy is nothing about facts or opinions.
You are the one impacting democracy by saying we cannot survive if we keep current democratic rules.
You can have the best argument for improving society by limiting who is allowed to vote, what things you're allowed to vote on, and what facts you are allowed to talk about. It can even be a true argument that would make everyone better off. But if it's less democracy, then it's anti-democratic. If you care about minorities and people generally, that's good, if you care about democracy, that's bad.
The only way you can lose a democracy is by voting to stop voting, or voting to stop other people from voting.
The intelligence of the population has nothing to do with it.
NSA has been hoovering up data of innocent Americans, and the IC in general, works with foreign ICs, to target Americans without reasonable cause, just blanket vacuuming.
Much of the govt, including federal, state, and local, has been purchasing private data without a warrant signed by a judge. Or they tap incoming fiber. Am expecting the next shoe to drop around traffic buying, not just location, without a warrant.
Civil forfeiture is rife, violating the 5th and 14th. It is mainly targeting minorities
Likewise, traffic cameras proliferation, mainly targeting minorities.
US Govt, state govts are actively pressuring BigTech to censor, causing them to become state "actors", and "agents of the State" themselves
We're coming off multiple scandals of govt employees criminally pursuing regionally unpopular politicos and their allies, but escaping sanction through regionalized trials
Large govt decrees ended rent collection, closed businesses, and did untold damage to the US. I can understand this, but not the lack of compensation to all the landlords that have been ruined by this.
The problem we have is, the US Constitution isn't being followed in the first place.
I wonder if general knowledge of civics and an understanding of the US Constitution has escaped from much of school?
This article focuses just on the first, but we can tackle the others too
Supreme court decisions -> discussions of court reform
Legislature rules -> e.g. discussions of ending filibuster
Enforcement -> Reducing secrecy in government (most places where the US government is just outright ignoring the constitution depends on secrecy)
de facto practice -> all this hand-wringing about "norm breaking" really boils down to some assumptions. We don't have a well developed conversation here, but generally these things should be codified.
-- Lysander Spooner (I think)
I hear this pretty frequently and often and I wonder, perhaps the constitution is inadequate to the task of governing the US in the 21st century? It seems like no one can agree on what it means - I'm told that we need highly educated legal scholars to properly interpret it before the Supreme Court, but there seems to be less consensus on it than there was in previous centuries.
The problem with making the Constitution hard to amend as the means of preventing that is that it stops new constitutional provisions that are controversial from being added, but it doesn’t prevent old constitutional provisions that are controversial among the people currently governed by them from remaining. This is why Jefferson thought that laws, including constitutions, needed to automatically sunset to prevent the living being ruled from beyond the grave by the dead.
You'd be surprised with how little people agreed with the Bill of Rights then and even now.
Some thoughts on resolving the paradox:
* If the constitution had been easier to amend in the 90s and 00s, perhaps some wise politicians would've seen whispers of the current dysfunction and passed an amendment to preempt it. Maybe there could be a "department of the future" that's trying to figure out how things could go off the rails and what amendments we could pass in advance to help.
* If amendment was done according to an entirely different process (e.g. sortition https://www.sortitionfoundation.org/case_study_america_in_on... -- essentially a citizen's assembly), that could solve the paradox. Especially if the new process was something slower and somehow less prone to dysfunction. It'd be like an additional check & balance. Sadly, we don't have much experience with sortition or other very different processes, and it seems risky to entrust them with something as important as the constitution. Maybe the rule could simply be that the legislature is required to vote on whether to adopt the changes that come out of the sortition process?
House: 2 yr
President: 4 yr
Senate: 6 yr
President-term-limit: 8 yr
Supreme-Court justice: ~16 years (per Google for average term)
Constitutional Amendment: Hard. ~13.5 years between updates, potentially infinite duration. (231 years since Bill of Rights was added, 17 amendments since then)
Each of these allows for differing response-times to a changing world. If you're a control-theory engineer, you might view Congress and the President as a PID loop, where the President is P, the House is D, and the Senate is I.
The goal of the Constitution is to ascertain what the people want, in aggregate. This series of cascaded loops helps to serve that purpose.
That said, I do feel like we have hugely eroded its protections. It's not worth quite as much when it's just blatantly ignored (Andrew Jackson) or absurdly interpreted (civil asset forfeiture[0]).
0: https://scholarlycommons.law.northwestern.edu/cgi/viewconten... (1997)
Most of the drafters understood that it was important for a government's founding document to strike a balance between two unsustainable positions: immutability (leading to a sort of tyranny of the old and dead) and excessive mutability (leading to short-term thinking and political instability). Our current approach to amending the constitution has favored the former position, to poor effect.
The easiest way to amend the constitution is to hold or pack the supreme court. That is dysfunctional. An easier to amend constitution, that better reflected the people's will, would likely reduce political polarization, as it would be possible to actually pass national laws that have 60 or 70% support.
a republic, if you can keep itThe US founding fathers were so worried about a tyranny of the majority they built a system where a tyranny of the minority was likely to come to pass.
You've misdescribed the sides. Most of the time in the US, one side wants to impose something on everyone and the other side doesn't want to be imposed on. Maybe the root of the problem is the idea that the only way to have "change" is to impose your views on everyone.
I don’t think making the constitution easier to amend would make it any easier to achieve national consensus.
Conversely, it's possible for the small states representing less than 25% of the overall population to band together and ratify any constitutional amendment - and it would be binding on the rest of the country.
It really is a broken system through and through.
I took the 2020 Census population figures from:
https://en.wikipedia.org/wiki/List_of_U.S._states_and_territ...
...and came up with the 38 smallest states (75% of 50) had a total population of 134 million or 40.5% of the U.S. population; the largest 12 states had a combined population of 197 million (59.5% of the U.S. population).
This "problem" is inherent; with time you run out of consensuses as they are ratified. What's left are all the things for which there is no consensus.
I read an autobiography of Benjamin Franklin today. He spoke highly of a religious sect that refused to write their laws down. They felt it was absurd to think that they had come up with the perfect laws that would govern all future generations. If they wrote it down, future generations would consider it sacred and would dogmatically enshrine those views rather than improving upon them. Ironic that we do the same to him.
Take the Electoral College. It's en vogue right now to talk about abolishing it (it's also popular to talk about it as if it's sacred, and in both cases, it seems a lot of people's feelings about it are based on whether or not their favorite candidate won a recent election, but I digress). If people want to change or even remove it, that's fine, but they should first have a very deep understanding of why it is how it is - an understanding that's a bit deeper than they got in their high school U.S. Government class.
If you go back and read the Federalist papers, for example, you can't help but come away with a profound admiration for how much thought people put into these things, even if you don't agree with their conclusions. There's just a ton of wisdom and thought there. If you can come up with something better, great, but among other things you really should have to articulate their original reasoning and make a good case for how their concerns aren't relevant now, or that your idea is a better set of tradeoffs, etc. Just saying that the EC isn't fair falls way short of that - yeah, they thought about stuff like that, a lot.
Another reason why it's good to have a hard-to-modify Constitution right now is because we are currently pretty terrible at negotiating politically and building any sort of consensus - the hard work of bridge building is often skipped, and so more legislation is passing with the slimmest of majorities, and each presidency seems to do more via executive action. (And to whoever is tempted to respond with, "yes, the X party is terrible at this" needs to take a closer look at their preferred party, because both of the 2 major parties are terrible at it, just often in different ways. But they are both corrupt and broken to the core, at least on the national level) If we can't pull back from this and get to a more sane working and collaboration environment, the "unamenadability" of the Constitution might be the thing that saves us (or, maybe, the thing that delays our drive off the cliff by a few years at least).
There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road. The more modern type of reformer goes gaily up to it and says, “I don’t see the use of this; let us clear it away.” To which the more intelligent type of reformer will do well to answer: “If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.
> The business of Progressives is to go on making mistakes. The business of Conservatives is to prevent mistakes from being corrected.
It seems like it was set up to be pretty bare bones, to resolve international and interstate disputes.
Today it looks like the federal government spends more in each state than the states do on themselves. This means that people in Texas (as a whole) have more say over spending in New York than people in New York do.
This makes it impossible for new states to enter the union, and you end up with spending policy in every state close to the median national voter, which makes everyone unhappy.
I think you should revoke incoropration and let each states constitution reign supreme as was originally intended.
California wants legal marijuana but the (badly interpreted) commerce clause makes this technically illegal.
NYC wants appropriate gun laws set by its residents, but due to 2A, it can't.
Revoke 14A and the temperature of the federal government will cool down.
But seriously, that would be interesting. Our Founding Fathers never intended there to be this entrenchment of two parties. It would make polarization harder because, well... what are the sides? It would also force greater civic participation to know what candidates actually stand for, and not just at the federal level.
Call it whatever you want, you're going to get people with roughly aligned goals exercising their Constitutional right to peaceably assemble to pool their resources to enact legislation they want.
"Ban political parties" is about as much of a thought out solution as "fix problems".
I would say go the other direction. A lot of European countries seem to have a lot of success with systems where political parties are officially part of the electoral system.
This is the problem and the solution. The more power and control that's been forfeited to the Federal gov, the less and less effective that entity has become. Yet the less effective it becomes the more push there is to give more power to Washington DC.
The solution is simple. Return - at least temporarily - to more of a pre New Deal mindset.
There was the line "it may backfire on you sooner than you thought" and I think there's some good caution in that statement. Take your own argument out of the picture -- would you be happy for the principle by which you're suggesting we operate be on the other foot and the majority be in the hands of your opponent?
I come to think that democracy is, more than anything, learning how to lose gracefully and without a revolution. So many people now seem to believe, if I lose, it must be broken and deserves a revolution. On both sides.
I've spent the last past decade pointing that out to people. People act like a state being separate from the US and independent is soooo absurd, logistically.
But the US can still assist on a natural disaster just like it does in all of the Americas. Common defense can occur, as you point out. Visa and waivers could be easy.
I always like to imagine what level of state tax would I tolerate if I was only paying income taxes to just California. Since California doesn't get much/anything back from the Federal Government from its remittances, I bet California wouldn't even need to raise its states taxes.
Already inserting subjectivity into the discussion to support it's premise. I'm not going to like this article.
> It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder
Yes, systems find stability, turbulence finds a local minima. Of course a lot more happened early on than later, if you expect a flat, linear, normal distribution of changes to something over time you don't know enough about what you're talking about to be talking about it.
Maybe the constitution has lasted 200 years precisely because it is hard to modify. A constitution should be harder to change than just passing any old piece of legislation. If it's just as easy as passing any law it's not a constitution, just another law.
If you think it's hard to amend the constitution, just wait until a constitutional convention convenes in DC in the next 5-10 years, we are almost there, something that hasn't happened since the Continental Congress, it's going to happen soon and it's going to be very interesting. I hope they ratify the equal apportionment amendment.
With a few exceptions (the prohibition is the biggest one that springs to mind), the trend line has generally been progressive.
We stopped making meaningful changes around the 1960s, read into that what we may. Regardless, our governmental institutions have proven to be fundamentally unmalleable (brittle?) in the last 60 years, which is a huge break from the norm.
The only other period comparable to this was the three generations leading into the American Civil War, which went 60 years without a federal amendment. But that period saw tons of “progress” at the state level, whereas this period has none.
I don’t have any conclusions, just food for thought.
Americans will line up behind fiscal reform and a rejection of our globalist overlords.
The states are a much safer venue.
These people don’t seem to understand that.
These people are operating under the false premise that their views are representative of some consensus that should be ratified in law. In truth the consensus they imagine is merely the prevailing group-think of their own preferred cohort.
https://constitutioncenter.org/news-debate/special-projects/...
Interesting to read the varying contentions made by the respective groups on how to change the existing U.S. constitutional structure.
Bullshit. The constitution was a conspiracy of rich assholes who were tired of state legislatures occasionally favoring the interests of poor farmers, workmen, and merchants over those of rich assholes. They rammed through the constitution, and never again had to worry about legislatures cancelling debts owed to them.
Forget amendments. The whole rotten thing should have been thrown out in 1790, and in every year since then. If we have ever made any progress, it has been in spite of the constitution, not because of it.
One only need look at how undemocratic the constitution was. Only one federal office, the House of Representatives, was elected by the people (and at the time the constitution was written, only men with property could vote). The president and vice president are elected by an electoral college. Senators were elected by state legislatures. Supreme Court Judges are even further insulated from the people, being appointed by the President. "The People" had extremely little influence on the federal government, and it's only gotten marginally better since.
Hopefully everyone understands how much the constitution did to protect the wealth of slave owners, since this is taught in schools. But it also made western land speculators richer by creating a government capable of exerting sufficient power over those western lands to open them up for settlement. It made the holders of revolutionary war debt richer by creating a government that could assume that debt and pay it off. It made owners and investors in manufacturing enterprises richer by creating a government that could protect industry with tariffs while keeping states from taxing the flow of goods or interfering with contracts.
Every framer of the constitution belonged to at least one of these groups, and they benefited when it was ratified. The book An Economic Interpretation of the Constitution of the United States by Charles Beard goes into great detail on this. It's out of copyright and freely available online: https://en.wikisource.org/wiki/An_Economic_Interpretation_of...
1971 again
the baader-meinhof phenomenon is following me everywhere i go
And once an Amendment is proposed, it still takes 3/4 of the states ratifying it in some manner.
The mechanisms are slightly different, but the numbers are the same.
[0] https://conventionofstates.com/
[1] https://www.msn.com/en-us/news/politics/closer-than-most-peo...
[2] https://www.theguardian.com/commentisfree/2022/sep/19/conser...
There are certain rights that are broadly popular, such as the right to birth control and the right to be gay, which are currently only protected by Supreme Court judgment. A member of that court explicitly called for reconsidering them. They are so broadly accepted that nobody even does polling for them, but there is so little chance of passing an amendment to protect them that nobody is even trying.
excite1997 0 minutes ago | unvote | parent | next [–]
This thread is likely gonna be a minefield and get canned, but the article takes a swing at the 2nd Amendment, for example, pretending to be impartial but calling it a "reinterpretation".
Listening to the decision is fun (Heller 2008).
Justice Antonin Scalia reads Heller(2008)[1] for the majority:
https://s3.amazonaws.com/oyez.case-media.ogg/case_data/2007/... (Justice Breyer also reads the dissent)
* Equal rights ammendment
* DC representation
* Abolish electoral college
* one person one vote
* End the death penalty
* Campaign finance reform
It needs to be rewritten completely but this is impossible because it is treated as a sacred text.
I believe the most likely constitutional change attempts in the short term would be libertarian revisionist windback and amplification of states rights. Reproductive rights would be next but I suspect is less likely to get up because of the impending shift in power balance in government. The revisionist thing, is to me likely because it's like the supreme court stacking and vote shenanigans already seen by the GOP. It's an easy sell to the state governments and wider republican voter.