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Isn't it time to consider writing a new Constitution then? Most countries have had "a few" (2, 3, 4...) since the inception of the formalized idea. We now know

by K0SM0S 7y ago

Isn't it time to consider writing a new Constitution then? Most countries have had "a few" (2, 3, 4...) since the inception of the formalized idea. We now know how to draft "good enough" Constitutions by common standards (relatively to history and other countries). It's a famous US peculiarity in Constitutional Law studies: to have gone the amendment path for so long. To have been so resilient to epochs, to change, to greatness. And yet as of the 21st century, it shows elements of "unfairness" and approximation that seem hard to sustain further, to "sell" to the masses for much longer, or so it seems from a nerdy-law standpoint. There's evident success but it may have been at the expense of a significant degree of actual democracy — as you suggest for the judiciary branch: this infringes on the legislative branch in this case, and outright fails the accountability check absolutely required from lawmakers. By comparison, judges are elected in the US system, which is accountability put in place to counter or mitigate their ability to make the law by way of setting precedents, giving citizens an indirect say in the matter. I don't know. I've always pondered on this question. I observe tension rising in this direction over the last 20 years (since Bush Jr essentially). Maybe it's just my personal bias speaking — no wonder a programmer sees the law as inneficient code to be refactored asap! ;-)

jaywalk 7y ago
We don't have a mechanism to replace the Constitution. Short of getting all 50 states to agree on it (good luck) it's never going to happen without a civil war.
- admax88q 7y ago
  You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.
  - jaywalk 7y ago
    When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want. I do agree that it should be extremely difficult, and it obviously is.
    - bdamm 7y ago
      Amendment process can effectively re-write the constitution, so I view that mechanism as the lowest bar.
- mattkrause 7y ago
  Aren't amendments basically that? Historically they've been pithy, but there's nothing stopping someone from proposing an Amendment that says "Article 1 of the Constitution is hereby replaced by.... Article 2 is hereby replaced by...."
- brobinson 7y ago
  38 states are needed to amend, not 50.
  - jtbayly 7y ago
    But that doesn't preclude a civil war if the other 12 hate it.
    - snuxoll 7y ago
      And the other 12 would lose in a fight quite quickly, unless the entire US Armed Forces decides to side with them.
      - maximente 7y ago
        probably not, depending on which side CA lands. the western US is probably actually pretty well equipped to stave off the east from invasion. there's, grossly oversimplifying, hella mountains (north) and hella desert (south). not only that, but california feeds a lot of the nation. honestly, the 3 pacific coast states (CA/OR/WA) are probably pretty well equipped to secede and start their own country if they should see fit to do so. massive coastline, tons of food production, hugely powerful economy in cali.
        kelnos 7y ago
        It still depends on the military. CA is certainly an economic powerhouse, but if the bulk of the military doesn't side with CA, I doubt groups like the National Guard (assuming they don't also support the federal gov't) or private militias (which, let's face it, are children with toys compared to the US military) will be enough to repel the US military, mountains and deserts be damned.
- samatman 7y ago
  On the contrary, Article V clearly states that it would require legislation on the part of two-thirds of the States, or passage by two-thirds of the House and Senate, and subsequent ratification by three-quarters of the state legislatures. This would convene a Constitutional Convention, which in turn could rapidly pass an Amendment rendering the existing Constitution null and void upon ratification, after which they could turn their attention to creating and ratifying a new Constitution. Not only would this be perfectly legal, I consider it an excellent idea.
  - jaywalk 7y ago
    Color me embarrassed. Thanks for pointing this out.
    - CamperBob2 7y ago
      The effect would be the same. We would end up with a country of, by, and for the red states, for better or worse. It would be much better to focus on enforcing the existing Constitution, than to write a new one that would also end up being ignored when it proves the least bit inconvenient to the government. The world is full of "democratic" countries with lofty-sounding constitutions.
      - javagram 7y ago
        3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. In reality the country is divided enough that no wholesale rewriting of the constitution would ever be possible in the current political climate either way, using the amendment mechanism. Hence the importance of using the SCOTUS to reinterpret it one way or another instead...
        CamperBob2 7y ago
        3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. I strongly disagree with your definition of "red states," given the electoral-vote map from the last Presidential election. In any case, my point is that rewriting the Constitution would have no beneficial effect anyway, because we'd just continue to ignore it.
- chmod775 7y ago
  > We don't have a mechanism to replace the Constitution. You mean besides Article 5 of said Constitution?
- munificent 7y ago
  The Constitution places no limit on the scope of amendments, so in theory Congress could pass an amendment that says "The text of the Constitution is replaced with _____."
  - virmundi 7y ago
    An interesting question is can you remove the second amendment? “Shall not be infringed” implies any effort to limit the right is blocked.
    - sjy 7y ago
      Of course you can. “Shall not be infringed” would never be interpreted as overriding the explicit amendment procedure in Article V. Most countries have found easy solutions to the paradox of laws that attempt to restrict their own amendment: https://en.wikipedia.org/wiki/Entrenched_clause https://en.wikipedia.org/wiki/Entrenched_clause
  - kej 7y ago
    >no limit on the scope of amendments There's one notable limit in that an amendment can't deprive a state of equal Senate representation: >...provided that ...[restrictions on amendments before 1808]; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
admax88q 7y ago
> no wonder a programmer sees the law as inneficient code to be refactored asap! ;-) Almost every time I hear programmers talk about the law arguing that it should be treated like software and be far more precise and absolute than it currently is I'm reminded of this comic: https://xkcd.com/1831/ https://xkcd.com/1831/ There's good reason why most laws contain measured language such as the infamous "reasonable person." They are purposefully written to support changing interpretations as societies expectations of reasonableness and acceptableness change. Many programming based approaches to the law treat it more like a codification of exactly how a person should behave in every situation, and precise penalties should they violate strict protocol. It also reminds of the of Etherium DAO. How the mantra for Etherium was "the code _IS_ the contract" for so long, until it turned out the code had unintended behaviour and the so called "contract" was rolled back.
- mrandish 7y ago
  > Almost every time I hear programmers talk about the law arguing that it should be treated like software and be far more precise and absolute than it currently is I'm reminded of this comic Yep, it's hard. However, there are two things going on. The first is that there are people who are highly motivated to reinterpret or misunderstand a law they don't like or think is wrong. Even when it's pretty damn clear. The second thing is there are some passages in both the Bill of Rights and the law that aren't as clear as they could be (and not because they're intentionally written that way to provide latitude). I think these are "bugs" that could have been addressed with better drafting. I often ponder how one would re-write the constitution to be more clear, more effective and yet still resilient to change over centuries. It's a hard problem but I think there are certain meta concepts that could be applied that would be net improvements.
  - datashow 7y ago
    American law system does evolve itself through case law. Things which are not clearly defined in the original language are clarified and adjusted through cases. Does it always get everything correct? No. But it's one of the best systems you can get on this planet.
deogeo 7y ago
> Isn't it time to consider writing a new Constitution then? Look at the state of the ruling parties in the US - what kind of constitution do you think you'll get?
xyzzyz 7y ago
Isn't it time to consider writing a new Constitution then? Maybe, but it’s not going to happen. Once the politicians understood that all they need is to put enough of their guys on the Supreme Court, any incentive to change how the country works through changes in constitution is gone: why would you go through all that hassle, if all you need to do is invoke the magical spells of General Welfare and Interstate Commerce, and it all through federal law?
jeffdavis 7y ago
"Isn't it time to consider writing a new Constitution then?" The Bill of Rights would never pass today. It's too radical. So, no thanks. I'll keep the scraps of the Constitution that I can hang onto rather than subjecting it to whatever our modern political system comes up with. The Constitution was built on solid philosophical ground, truly advancing the state of the art for governments and freedom. It was written and ratified by people who risked everything for what they believed, and they had the humility and restraint to do a good job. And they actually relinquished their own power for the greater good. I'm not betting on that happening again today.

by K0SM0S 7y ago

jaywalk 7y ago

We don't have a mechanism to replace the Constitution. Short of getting all 50 states to agree on it (good luck) it's never going to happen without a civil war.

admax88q 7y ago
You _do_ have a mechanism, you cited it in your statement. Sure its a difficult mechanism, getting agreement from all parties involved, but changing the highest law of the land _should_ be difficult.
- jaywalk 7y ago
  When I said "we don't have a mechanism" I meant that it's not spelled out in the Constitution, e.g. how the process for Amendments is in there. It's basically just "common sense" that if everyone agrees, you can change whatever you want. I do agree that it should be extremely difficult, and it obviously is.
  - bdamm 7y ago
    Amendment process can effectively re-write the constitution, so I view that mechanism as the lowest bar.
mattkrause 7y ago
Aren't amendments basically that? Historically they've been pithy, but there's nothing stopping someone from proposing an Amendment that says "Article 1 of the Constitution is hereby replaced by.... Article 2 is hereby replaced by...."
brobinson 7y ago
38 states are needed to amend, not 50.
- jtbayly 7y ago
  But that doesn't preclude a civil war if the other 12 hate it.
  - snuxoll 7y ago
    And the other 12 would lose in a fight quite quickly, unless the entire US Armed Forces decides to side with them.
    - maximente 7y ago
      probably not, depending on which side CA lands. the western US is probably actually pretty well equipped to stave off the east from invasion. there's, grossly oversimplifying, hella mountains (north) and hella desert (south). not only that, but california feeds a lot of the nation. honestly, the 3 pacific coast states (CA/OR/WA) are probably pretty well equipped to secede and start their own country if they should see fit to do so. massive coastline, tons of food production, hugely powerful economy in cali.
      - kelnos 7y ago
        It still depends on the military. CA is certainly an economic powerhouse, but if the bulk of the military doesn't side with CA, I doubt groups like the National Guard (assuming they don't also support the federal gov't) or private militias (which, let's face it, are children with toys compared to the US military) will be enough to repel the US military, mountains and deserts be damned.
samatman 7y ago
On the contrary, Article V clearly states that it would require legislation on the part of two-thirds of the States, or passage by two-thirds of the House and Senate, and subsequent ratification by three-quarters of the state legislatures. This would convene a Constitutional Convention, which in turn could rapidly pass an Amendment rendering the existing Constitution null and void upon ratification, after which they could turn their attention to creating and ratifying a new Constitution. Not only would this be perfectly legal, I consider it an excellent idea.
- jaywalk 7y ago
  Color me embarrassed. Thanks for pointing this out.
  - CamperBob2 7y ago
    The effect would be the same. We would end up with a country of, by, and for the red states, for better or worse. It would be much better to focus on enforcing the existing Constitution, than to write a new one that would also end up being ignored when it proves the least bit inconvenient to the government. The world is full of "democratic" countries with lofty-sounding constitutions.
    - javagram 7y ago
      3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. In reality the country is divided enough that no wholesale rewriting of the constitution would ever be possible in the current political climate either way, using the amendment mechanism. Hence the importance of using the SCOTUS to reinterpret it one way or another instead...
      - CamperBob2 7y ago
        3/4 of the states are not “red states”. Look at the composition of the Senate. Each state gets 2 senators, but there are only 53 republican senators, not 74-76 as one would expect if 3/4 states were solid red. I strongly disagree with your definition of "red states," given the electoral-vote map from the last Presidential election. In any case, my point is that rewriting the Constitution would have no beneficial effect anyway, because we'd just continue to ignore it.
chmod775 7y ago
> We don't have a mechanism to replace the Constitution. You mean besides Article 5 of said Constitution?
munificent 7y ago
The Constitution places no limit on the scope of amendments, so in theory Congress could pass an amendment that says "The text of the Constitution is replaced with _____."
- virmundi 7y ago
  An interesting question is can you remove the second amendment? “Shall not be infringed” implies any effort to limit the right is blocked.
  - sjy 7y ago
    Of course you can. “Shall not be infringed” would never be interpreted as overriding the explicit amendment procedure in Article V. Most countries have found easy solutions to the paradox of laws that attempt to restrict their own amendment: https://en.wikipedia.org/wiki/Entrenched_clause https://en.wikipedia.org/wiki/Entrenched_clause
- kej 7y ago
  >no limit on the scope of amendments There's one notable limit in that an amendment can't deprive a state of equal Senate representation: >...provided that ...[restrictions on amendments before 1808]; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

admax88q 7y ago

> no wonder a programmer sees the law as inneficient code to be refactored asap! ;-) Almost every time I hear programmers talk about the law arguing that it should be treated like software and be far more precise and absolute than it currently is I'm reminded of this comic: https://xkcd.com/1831/ https://xkcd.com/1831/ There's good reason why most laws contain measured language such as the infamous "reasonable person." They are purposefully written to support changing interpretations as societies expectations of reasonableness and acceptableness change. Many programming based approaches to the law treat it more like a codification of exactly how a person should behave in every situation, and precise penalties should they violate strict protocol. It also reminds of the of Etherium DAO. How the mantra for Etherium was "the code _IS_ the contract" for so long, until it turned out the code had unintended behaviour and the so called "contract" was rolled back.

mrandish 7y ago
> Almost every time I hear programmers talk about the law arguing that it should be treated like software and be far more precise and absolute than it currently is I'm reminded of this comic Yep, it's hard. However, there are two things going on. The first is that there are people who are highly motivated to reinterpret or misunderstand a law they don't like or think is wrong. Even when it's pretty damn clear. The second thing is there are some passages in both the Bill of Rights and the law that aren't as clear as they could be (and not because they're intentionally written that way to provide latitude). I think these are "bugs" that could have been addressed with better drafting. I often ponder how one would re-write the constitution to be more clear, more effective and yet still resilient to change over centuries. It's a hard problem but I think there are certain meta concepts that could be applied that would be net improvements.
- datashow 7y ago
  American law system does evolve itself through case law. Things which are not clearly defined in the original language are clarified and adjusted through cases. Does it always get everything correct? No. But it's one of the best systems you can get on this planet.

deogeo 7y ago

> Isn't it time to consider writing a new Constitution then? Look at the state of the ruling parties in the US - what kind of constitution do you think you'll get?

xyzzyz 7y ago

Isn't it time to consider writing a new Constitution then? Maybe, but it’s not going to happen. Once the politicians understood that all they need is to put enough of their guys on the Supreme Court, any incentive to change how the country works through changes in constitution is gone: why would you go through all that hassle, if all you need to do is invoke the magical spells of General Welfare and Interstate Commerce, and it all through federal law?

jeffdavis 7y ago

"Isn't it time to consider writing a new Constitution then?" The Bill of Rights would never pass today. It's too radical. So, no thanks. I'll keep the scraps of the Constitution that I can hang onto rather than subjecting it to whatever our modern political system comes up with. The Constitution was built on solid philosophical ground, truly advancing the state of the art for governments and freedom. It was written and ratified by people who risked everything for what they believed, and they had the humility and restraint to do a good job. And they actually relinquished their own power for the greater good. I'm not betting on that happening again today.