13 ms·

This myth that the US constitution is in any way "good" is weird. It's one of the earliest; and fortunately others leared from its mistakes. Including the US

by emn13 6y ago

This myth that the US constitution is in any way "good" is weird. It's one of the earliest; and fortunately others leared from its mistakes. Including the US itself, when it had considerable influence in drafting the WW2 losers constitutions, which uncoincidentally are quite different from the US. Checks and balances essentially don't work in the US. The best bit is simply a decent judiciary, but that was mostly copied from the British. And even that is more poorly executed than elsewhere, due to the political nature of judicial appointees, and esp. due to the tradition of direct elections of some judges. I'd say it's arguably worse than the British model it was copied from, not because the Brits were psychic geniuses, but because of the not entirely unrelated fact that the UK model is much more open to reform; it's aged better because it's less crufty. When lead by a dangerously populist government that might be risk, of course, but so far even populists have turned out not to do too much consitutional harm - might differ in the future. It's more like: the US constitution was grand it its aims, but pretty v1.0 in its execution. It's full of unintentional (or at least unfortunate) indirect effects that didn't work out too well; such as that congress is likely to deadlock; that the constitution isn't sufficiently amendable; that its form of democracy is subject to unproportional divergence as state population sizes diverge, that by contrast adding new states is way too easy, that elections at all are in no way shape or form necessarily fair (and I don't there there has ever been a particularly free&fair election in the states) due to gerrymandering, state size disparities, imbalanced voting registration requirements, and lack of constitutional protections for elections in general; the presence of systematic biased introduced by winner-takes-all approaches; the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check). I'm sure actual scholars could name a bunch more. Then theres the more general flaws in legal republics, such as that there no systematic mechanism for reform; laws just accumlate leaving extremely outdated wordings on the books forever, and with ever increasingly large rulebooks. Seriously, name 1 check/balance that's actually particularly good! (I mean, I guess there by sheer scope might be one... but I can't think of one anyhow).

hawkice 6y ago
>Seriously, name 1 check/balance that's actually particularly good! The person in charge with executing the law is different from the people in charge of crafting the laws to be executed.
- mamon 6y ago
  Exactly! And the best thing is that, unlike most European countries, executive and legislative branches are actually elected in separate elections. European system with Prime Minister being elected by Parliament is pathological, because it does not provide full separation.
  - angry_octet 6y ago
    Hello deadlock! Come on down!
    - ardy42 6y ago
      > Hello deadlock! Come on down! Deadlock is not the worst thing, and the solution to it is not necessarily to remove as many locks as possible. The actual problem in the US right now is that checks and balances are strong enough to allow one party to block things, but not strong enough to deter waiting until your party stochastically has enough power to get things done. This is exacerbated by having one party's ideologically committed to having the government do less. In previous decades, stuff like earmarks greased the wheels enough to get things done (but an effective PR campaign against them got them banned). You could also fix deadlocks by strengthening the checks to force compromise among factions, like by coupling automatically expiring legislation with requirements for big super-majorities.
      - angry_octet 6y ago
        I think we know that Mitch would have blocked every Biden appointment if the Dems hadn't won Georgia. Waiting 2/4/6/8 years to resolve a deadlock isn't a great idea. The checks and balances in the Senate were ignored by Mitch to get things done, rather than compromise. Since Congress makes its own rules, and 51/49 is enough to change a rule ('the nuclear option'), supermajority would have to be a constitutional amendment... And then 45% would be enough to halt government. I guarantee you this would then happen regularly. Other systems have mechanisms to force elections if deadlocks are persistent. Of course, you also need mandatory voting, PTO for voting, full franchise, etc and that isn't going to happen in America while this Supreme Court lasts.
ISL 6y ago
I strongly disagree. A check and balance has been on great display in recent weeks. A President has stated, "the election was a fraud, I should get another term". Congress has stated, "the election was correct. Moreover, we may choose to prevent you from holding office ever again." The judiciary agrees. That Congress is likely to deadlock is arguably a feature, not a bug. (That voters don't demand better from their congresspeople is, perhaps, a correctable bug.). There is only one exception to the amendability of the Constitution -- states cannot be deprived of equal suffrage in the Senate. See Article V. The disproportionate representation is by design. Without it, the country literally would not have formed. I am pleased to see states hacking around it without an amendment, thus, should the prior function be required, the states themselves can revert. Is adding states too easy? There are three million US citizens in Puerto Rico without representation in Congress. I am hopeful that we will find ways forward on gerrymandering. The only true beneficiaries of the existing system are the political parties. Impeachment is not just hypothetical. Though it was not fully realized against Nixon, it would have been had he not resigned. Regarding the endless accretion of laws: we get the government for which we vote. Speaking up, as you have done here, is the first step toward making it better.
- emn13 6y ago
  On nixon: might well be. But it's never happened so far, and that's because congress is hyper deadlocked by design and a ridiculously high bar of non-proportionally-represented senators need to agree to convict. Just compare that to other democracies that can switch their executive with a simple majority in one house, yet remain stable. As to congresses deadlock being a feature: it may well have been intentional; but it's pretty plausibly a long term fatal blow. Countries need to be able to evolve, and when small minorities can prevent that (and we're not their yet, but it's moving that way), you're creating really perverse incentives for horse trading, leading to really low quality law making, and thus low respect for congress. It's not out of the question that this might lead to the nation's dissolution in our lifetimes - what happens when elections are legally stolen? On impeachment: we'll see what happens with trump who happens to be a perfect case to check whether this feature of the constitution is more than hot air; but given how stacked the deck is against conviction, I'm not holding my breath - and if it's not going to happen now, it never will - not only was he utterly shameless in undermining the election (knowing full well that democracy is worth fighting for, i.e. raising tensions dangerously) and addition literally using combative language and calling for as close to a stormin of the capitol as possible while trying to retain plausible deniability, we're also just post election that shifted the balance of the senate against him. This is pretty much the best case scenario for an impeachment, and it's far from a sure thing. Additionally, the current election was upheld largely because of states still sticking to extra-legal solid traditions. Those however, are not constitutionally protected; i.e. what worked was american culture & tradition (sometimes backed by state law), not really the american constitution. I mean, for scale: it's easier to throw out an election than a president, which is absolutely Not Ok. Some of your other objections relate to tradition, e.g. such as puerto rico not being a state. This has nothing to do with the constitution; this is purely a political tradition. And indeed; many traditions are fine - while I think there's no question on the specific instance of puerto rico deserving statehood, the point is that the constitutional bar is very low despite the fact that it allows senate packing. A malicious populist could easily abuse that, if convenient, were it not for the real protection: tradition&culture, not the constitution. The US has a solid set of traditions and an extremely civic culture; and that's why it works - not because of the constitution.
ardy42 6y ago
> Checks and balances essentially don't work in the US. The best bit is simply a decent judiciary, but that was mostly copied from the British. And even that is more poorly executed than elsewhere, due to the political nature of judicial appointees, and esp. due to the tradition of direct elections of some judges. I'd say it's arguably worse than the British model it was copied from, not because the Brits were psychic geniuses, but because of the not entirely unrelated fact that the UK model is much more open to reform; it's aged better because it's less crufty. When lead by a dangerously populist government that might be risk, of course, but so far even populists have turned out not to do too much consitutional harm - might differ in the future. That risk has been realized. Aren't the parliamentary governments of Hungary and Poland falling into "democratic" authoritarianism? I'm pretty sure the US system was mainly designed to prevent that kind of thing, and put up democratically-derived barriers against it. The Trump presidency would have been way worse without them. Trump has been very effective at keeping his party in line behind him (even to the anti-democratic extremes). The things you complain about are mainly tradeoffs of that design.
- emn13 6y ago
  Right, but how much of that is (a) coincidence, and much more critically, (B) US culture? The US works; and has excellent governance; that's not really in question (IMHO). The question is whether that's due to the constitution, or despite it. If the US were as uninterested in democracy and as accepting of an autocratic leadership as hungary (and as small as hungary) - do you think the constitution of the US would have made anything better?
- lazide 6y ago
  You just saw the checks and balance function today - the sitting executive used every trick he could think of to keep himself in power. He was rejected by Congress (the other arm, who he does not control), and this was affirmed by the Judiciary (who he does not control because of the lifetime appointments and other history, despite appointing a number of people aligned with his party to it). In many countries he could have just insisted (or tell a crony he insists) and that would have been that.
  - 6y ago
Metricon 6y ago
"It's more like: the US constitution was grand it its aims, but pretty v1.0 in its execution." The US Constitution would have really been 2.0 as the Articles of Confederation preceded it: https://en.wikipedia.org/wiki/Articles_of_Confederation https://en.wikipedia.org/wiki/Articles_of_Confederation
- emn13 6y ago
  Sure, I meant the qualitative feel by the entitled hindsight of somebody living the good life in 2021 which is possible because of it. It's definitely not all bad (certainly not for its age) nor was it an entirely novel creation in some sudden bolt from the blue. It's just showing its age.
scythe 6y ago
>such as that congress is likely to deadlock; The bicameral requirement for a concurrent majority is entirely by design and has plenty of supporters. It's pretty egregious to cite this first on the list of supposedly crucial flaws. >that its form of democracy is subject to unproportional divergence as state population sizes diverge, that by contrast adding new states is way too easy The one fixes the other, but adding new states turns out not to be that easy. From a political standpoint, larger states have an outsize cultural and regulatory influence (which is known to the state of California to cause cancer, but which cannot be mentioned in textbooks used in Texas schools) so compensating smaller states makes sense; voters in large states who feel their votes are diluted should, in principle, be able to correct this with a split. Is it a perfect balance? Not at all, but it's something. But in practice, adding new states has become too hard and this may be a source of recent political problems! Puerto Rico should have been a state in the '90s. Movements to split large states may not be such a bad idea. >that elections at all are in no way shape or form necessarily fair A cultural and political flaw, not a Constitutional flaw. Maybe an omission, but you can't write all of the laws and practices necessary for a fair election into the Constitution; it would take up most of the document! >that the constitution isn't sufficiently amendable A risk-averse and historically motivated bias; we had one bad Amendment (the 18th) and the fallout really put a damper on amendment movements. >the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check) Trump's impeachment trial was heavily impacted by the Democrats' primary season and not-so-subtle party establishment hopes that Warren would somehow pull out a win, so everything had to be rushed in order to avoid distracting her (and she lost badly anyway).
- emn13 6y ago
  > The bicameral requirement for a concurrent majority is entirely by design and has plenty of supporters. It's pretty egregious to cite this first on the list of supposedly crucial flaws. The issue isn't the bifurcation of congress by itself, it's that in addition the electoral system for both sides differs so greatly, and simultaneously that the US uses a winner take-all approach to assigning seats which converges to partisanship. Fix any one of those issues and the deadlock issue is reduced. It's the current bicameral nature that the problem, not the abstract notion. However, I also think that bicameralism is oversold - sure, made a lot of sense to try that, but the protections it supposedly provides are extremely slim in a partisan electorate. Part of the time there's deadlock, part of the time it's close (best case, but very rare and growing ever more rare as more congressmen toe the party line), and part of the time there's a trifecta, and there is in essence no bicameral congress, nor even really a separation of powers. The whole thing makes sense only if political parties either don't exist, or are constantly in some kind of coalition. But as in the US? There are only downsides, and virtually no upsides to a bicameral congress. Also, we know more now; other democracies don't have such strongly independant arms and if anything appear more stable. > The one fixes the other, but adding new states turns out not to be that easy. From a political standpoint, larger states have an outsize cultural and regulatory influence (which is known to the state of California to cause cancer, but which cannot be mentioned in textbooks used in Texas schools) so compensating smaller states makes sense; voters in large states who feel their votes are diluted should, in principle, be able to correct this with a split. Is it a perfect balance? Not at all, but it's something. Personally: I don't believe this problem is anything near as bad as the current problem (and it's likely overstated anyhow; even large states aren't that large). But yeah, splitting large states would be a good idea, even with proportional representation. But even if there it's worth boosting small states' influence, the current system is excessive. Fundamentally, I'm a little skeptical than non-proportionality is ever a great way to redress that sort of imbalance, but we could easily have a compromise system, e.g. N+1 senators (a kind of smoothing that boosts smaller states). Another thing we could do is limit large states' influence, e.g. by banning stuff like winner-takes-all solutions to the electoral college. >> that elections at all are in no way shape or form necessarily fair > A cultural and political flaw, not a Constitutional flaw. Maybe an omission, but you can't write all of the laws and practices necessary for a fair election into the Constitution; it would take up most of the document! On the one hand: fair enough. On the other: that something so fundamental to a form of government isn't specified is a problem. This isn't black and white; the constitution doesn't and shouldn't include "all of the laws and practices". But the almost complete lack of ground rules - while very federal in spirit - also means that it's a race to the bottom, and what makes sense locally (gerrymandering, winner takes all, etc) isn't good for the whole. The ground rules here are lacking, and that makes sense historically - but then again, that's exacty my point: the constitution is a product of its time, and not a good fit today. >> that the constitution isn't sufficiently amendable > A risk-averse and historically motivated bias; we had one bad Amendment (the 18th) and the fallout really put a damper on amendment movements. It's not just cultural, it's part of the rules too - it's way too easy for a tiny number of voters to essentially veto a change. Also, again, look around the rest of the world (here britain really stands out) - those protections don't seem to help in practice. Britain has no protections whatsoever on constitutional change, yet it hasn't collapsed after centuries. Again, I think that intuitively the idea of setting a high bar for amendments makes sense, but empyrically it does not appear to be borne out. Other protections might be to instead of raising a high bar, create a huge drag - make the process take a long time, and thus require multiple congresses to approve. Have veto-like capabilities, but ones that delay yet further, not prevent reform wholesale. >> the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check) > Trump's impeachment trial was heavily impacted by the Democrats' primary season and not-so-subtle party establishment hopes that Warren would somehow pull out a win, so everything had to be rushed in order to avoid distracting her (and she lost badly anyway). I think you're really focusing on the details here. Set aside whatever political agreements or disagreements you have; the fact is that today's impeachment is a political process that requires going against the grain of partisanship. It's way to attractive to reject impeachment for partisan reasons; because after all - a flawed president one agrees with is still better than giving the other side a win, and it gets worse given the senate's extremely unproportional nature. This causes real problems too; it's not just a question of who wins or who loses - what you see in other countries that have an easier time ejecting leaders is that they try to mitigate damage a lot early, and are a lot more careful to avoid the kind of transgressions that have plagued quite a few US presidents in living memory. And when they do engage in dubious behavior they often seek approval by others at least in their own congressional majorities beforehand, because they know they risk getting hung out to dry otherwise - and that itself is a valuable check on excesses. Alternatively, impeachment itself should have much more teeth. Maybe trump is too recent a memory, but consider Clinton's impeachment. Sure, I think most people agree questioning a president about his sex life under oath was not reasonable - but lying under oath, really? The only reason that was OK was because the whole thing had the whiff of partisan witch-hunt, and that's a problem, because it'll always be spun to that. I'd rather have a system where everybody knows that if you pull a stunt like that you're liable to get removed. I don't mind if some other leader from the same party takes their place - in fact, that's a good idea, because it makes the process less about partisan rejection of the other side's election win, and more about personal responsibility - but leaders should not be even close to above the law; and right now they are - how bad does behavior need to get before they're actually punished?
mcguire 6y ago
"And even that is more poorly executed than elsewhere, due to the political nature of judicial appointees, and esp. due to the tradition of direct elections of some judges." How do you pick judges if you don't appoint them or elect them?
- IIAOPSW 6y ago
  Sortition
  - mcguire 6y ago
    From what pool? In Texas, Justices of the Peace have no particular requirements, and are (IIRC) the equivalent of small-claims courts in the rural counties, but have had some special powers, like acting as coroner in counties without access to one. I had a government teacher with a long list of amusing anecdotes---like the JP that determined that a body with like, 27 bullet wounds had committed suicide. Judge Roy Bean was a JP; at one point someone brought in a dead cowboy who had fallen down a cliff. The body was carrying $25 and a pistol. Bean found the cowboy to be carrying a concealed weapon, confiscated the pistol, and fined the body $25.
    - IIAOPSW 6y ago
      From the pool of people with the qualifications requisite to practice law plus a few years of experience and good standing with the bar association.
      - mcguire 6y ago
        Well, it couldn't be worse than Roy Moore.
- bshanks 6y ago
  The category of 'appointment' contains many different methods, some of which may be better than the US system. One method that I've heard of is to have a committee (/"commission"/"council") select judges. The committee composition can draw from multiple branches of government (e.g. some members are existing judges and others are appointed/elected by the executive and/or legislative branches) and from civil society (e.g. appointed/elected by bar associations; in some implementations a majority of the committee is from civil society). The terms of members of the committee can be staggered. The idea is to make it difficult for any one controversial person or party or movement to consistently dominate the committee, because in order to do so they would need to consistently dominate multiple branches of government and civil society (because the different members of the committee are selected by these different institutions) over a long period of time (because of the staggered terms).
WalterBright 6y ago
> name 1 check/balance that's actually particularly good! The overarching one is the government being a triumvirate. If one branch overreaches, the other two can keep it in check. Triumvirates have historically been stable governments. Even in the Soviet Union - the Party, the Army, the Police.

by emn13 6y ago

hawkice 6y ago

>Seriously, name 1 check/balance that's actually particularly good! The person in charge with executing the law is different from the people in charge of crafting the laws to be executed.

mamon 6y ago
Exactly! And the best thing is that, unlike most European countries, executive and legislative branches are actually elected in separate elections. European system with Prime Minister being elected by Parliament is pathological, because it does not provide full separation.
- angry_octet 6y ago
  Hello deadlock! Come on down!
  - ardy42 6y ago
    > Hello deadlock! Come on down! Deadlock is not the worst thing, and the solution to it is not necessarily to remove as many locks as possible. The actual problem in the US right now is that checks and balances are strong enough to allow one party to block things, but not strong enough to deter waiting until your party stochastically has enough power to get things done. This is exacerbated by having one party's ideologically committed to having the government do less. In previous decades, stuff like earmarks greased the wheels enough to get things done (but an effective PR campaign against them got them banned). You could also fix deadlocks by strengthening the checks to force compromise among factions, like by coupling automatically expiring legislation with requirements for big super-majorities.
    - angry_octet 6y ago
      I think we know that Mitch would have blocked every Biden appointment if the Dems hadn't won Georgia. Waiting 2/4/6/8 years to resolve a deadlock isn't a great idea. The checks and balances in the Senate were ignored by Mitch to get things done, rather than compromise. Since Congress makes its own rules, and 51/49 is enough to change a rule ('the nuclear option'), supermajority would have to be a constitutional amendment... And then 45% would be enough to halt government. I guarantee you this would then happen regularly. Other systems have mechanisms to force elections if deadlocks are persistent. Of course, you also need mandatory voting, PTO for voting, full franchise, etc and that isn't going to happen in America while this Supreme Court lasts.

ISL 6y ago

I strongly disagree. A check and balance has been on great display in recent weeks. A President has stated, "the election was a fraud, I should get another term". Congress has stated, "the election was correct. Moreover, we may choose to prevent you from holding office ever again." The judiciary agrees. That Congress is likely to deadlock is arguably a feature, not a bug. (That voters don't demand better from their congresspeople is, perhaps, a correctable bug.). There is only one exception to the amendability of the Constitution -- states cannot be deprived of equal suffrage in the Senate. See Article V. The disproportionate representation is by design. Without it, the country literally would not have formed. I am pleased to see states hacking around it without an amendment, thus, should the prior function be required, the states themselves can revert. Is adding states too easy? There are three million US citizens in Puerto Rico without representation in Congress. I am hopeful that we will find ways forward on gerrymandering. The only true beneficiaries of the existing system are the political parties. Impeachment is not just hypothetical. Though it was not fully realized against Nixon, it would have been had he not resigned. Regarding the endless accretion of laws: we get the government for which we vote. Speaking up, as you have done here, is the first step toward making it better.

emn13 6y ago
On nixon: might well be. But it's never happened so far, and that's because congress is hyper deadlocked by design and a ridiculously high bar of non-proportionally-represented senators need to agree to convict. Just compare that to other democracies that can switch their executive with a simple majority in one house, yet remain stable. As to congresses deadlock being a feature: it may well have been intentional; but it's pretty plausibly a long term fatal blow. Countries need to be able to evolve, and when small minorities can prevent that (and we're not their yet, but it's moving that way), you're creating really perverse incentives for horse trading, leading to really low quality law making, and thus low respect for congress. It's not out of the question that this might lead to the nation's dissolution in our lifetimes - what happens when elections are legally stolen? On impeachment: we'll see what happens with trump who happens to be a perfect case to check whether this feature of the constitution is more than hot air; but given how stacked the deck is against conviction, I'm not holding my breath - and if it's not going to happen now, it never will - not only was he utterly shameless in undermining the election (knowing full well that democracy is worth fighting for, i.e. raising tensions dangerously) and addition literally using combative language and calling for as close to a stormin of the capitol as possible while trying to retain plausible deniability, we're also just post election that shifted the balance of the senate against him. This is pretty much the best case scenario for an impeachment, and it's far from a sure thing. Additionally, the current election was upheld largely because of states still sticking to extra-legal solid traditions. Those however, are not constitutionally protected; i.e. what worked was american culture & tradition (sometimes backed by state law), not really the american constitution. I mean, for scale: it's easier to throw out an election than a president, which is absolutely Not Ok. Some of your other objections relate to tradition, e.g. such as puerto rico not being a state. This has nothing to do with the constitution; this is purely a political tradition. And indeed; many traditions are fine - while I think there's no question on the specific instance of puerto rico deserving statehood, the point is that the constitutional bar is very low despite the fact that it allows senate packing. A malicious populist could easily abuse that, if convenient, were it not for the real protection: tradition&culture, not the constitution. The US has a solid set of traditions and an extremely civic culture; and that's why it works - not because of the constitution.

ardy42 6y ago

> Checks and balances essentially don't work in the US. The best bit is simply a decent judiciary, but that was mostly copied from the British. And even that is more poorly executed than elsewhere, due to the political nature of judicial appointees, and esp. due to the tradition of direct elections of some judges. I'd say it's arguably worse than the British model it was copied from, not because the Brits were psychic geniuses, but because of the not entirely unrelated fact that the UK model is much more open to reform; it's aged better because it's less crufty. When lead by a dangerously populist government that might be risk, of course, but so far even populists have turned out not to do too much consitutional harm - might differ in the future. That risk has been realized. Aren't the parliamentary governments of Hungary and Poland falling into "democratic" authoritarianism? I'm pretty sure the US system was mainly designed to prevent that kind of thing, and put up democratically-derived barriers against it. The Trump presidency would have been way worse without them. Trump has been very effective at keeping his party in line behind him (even to the anti-democratic extremes). The things you complain about are mainly tradeoffs of that design.

emn13 6y ago
Right, but how much of that is (a) coincidence, and much more critically, (B) US culture? The US works; and has excellent governance; that's not really in question (IMHO). The question is whether that's due to the constitution, or despite it. If the US were as uninterested in democracy and as accepting of an autocratic leadership as hungary (and as small as hungary) - do you think the constitution of the US would have made anything better?
lazide 6y ago
You just saw the checks and balance function today - the sitting executive used every trick he could think of to keep himself in power. He was rejected by Congress (the other arm, who he does not control), and this was affirmed by the Judiciary (who he does not control because of the lifetime appointments and other history, despite appointing a number of people aligned with his party to it). In many countries he could have just insisted (or tell a crony he insists) and that would have been that.
- 6y ago

Metricon 6y ago

"It's more like: the US constitution was grand it its aims, but pretty v1.0 in its execution." The US Constitution would have really been 2.0 as the Articles of Confederation preceded it: https://en.wikipedia.org/wiki/Articles_of_Confederation https://en.wikipedia.org/wiki/Articles_of_Confederation

emn13 6y ago
Sure, I meant the qualitative feel by the entitled hindsight of somebody living the good life in 2021 which is possible because of it. It's definitely not all bad (certainly not for its age) nor was it an entirely novel creation in some sudden bolt from the blue. It's just showing its age.

scythe 6y ago

>such as that congress is likely to deadlock; The bicameral requirement for a concurrent majority is entirely by design and has plenty of supporters. It's pretty egregious to cite this first on the list of supposedly crucial flaws. >that its form of democracy is subject to unproportional divergence as state population sizes diverge, that by contrast adding new states is way too easy The one fixes the other, but adding new states turns out not to be that easy. From a political standpoint, larger states have an outsize cultural and regulatory influence (which is known to the state of California to cause cancer, but which cannot be mentioned in textbooks used in Texas schools) so compensating smaller states makes sense; voters in large states who feel their votes are diluted should, in principle, be able to correct this with a split. Is it a perfect balance? Not at all, but it's something. But in practice, adding new states has become too hard and this may be a source of recent political problems! Puerto Rico should have been a state in the '90s. Movements to split large states may not be such a bad idea. >that elections at all are in no way shape or form necessarily fair A cultural and political flaw, not a Constitutional flaw. Maybe an omission, but you can't write all of the laws and practices necessary for a fair election into the Constitution; it would take up most of the document! >that the constitution isn't sufficiently amendable A risk-averse and historically motivated bias; we had one bad Amendment (the 18th) and the fallout really put a damper on amendment movements. >the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check) Trump's impeachment trial was heavily impacted by the Democrats' primary season and not-so-subtle party establishment hopes that Warren would somehow pull out a win, so everything had to be rushed in order to avoid distracting her (and she lost badly anyway).

emn13 6y ago
> The bicameral requirement for a concurrent majority is entirely by design and has plenty of supporters. It's pretty egregious to cite this first on the list of supposedly crucial flaws. The issue isn't the bifurcation of congress by itself, it's that in addition the electoral system for both sides differs so greatly, and simultaneously that the US uses a winner take-all approach to assigning seats which converges to partisanship. Fix any one of those issues and the deadlock issue is reduced. It's the current bicameral nature that the problem, not the abstract notion. However, I also think that bicameralism is oversold - sure, made a lot of sense to try that, but the protections it supposedly provides are extremely slim in a partisan electorate. Part of the time there's deadlock, part of the time it's close (best case, but very rare and growing ever more rare as more congressmen toe the party line), and part of the time there's a trifecta, and there is in essence no bicameral congress, nor even really a separation of powers. The whole thing makes sense only if political parties either don't exist, or are constantly in some kind of coalition. But as in the US? There are only downsides, and virtually no upsides to a bicameral congress. Also, we know more now; other democracies don't have such strongly independant arms and if anything appear more stable. > The one fixes the other, but adding new states turns out not to be that easy. From a political standpoint, larger states have an outsize cultural and regulatory influence (which is known to the state of California to cause cancer, but which cannot be mentioned in textbooks used in Texas schools) so compensating smaller states makes sense; voters in large states who feel their votes are diluted should, in principle, be able to correct this with a split. Is it a perfect balance? Not at all, but it's something. Personally: I don't believe this problem is anything near as bad as the current problem (and it's likely overstated anyhow; even large states aren't that large). But yeah, splitting large states would be a good idea, even with proportional representation. But even if there it's worth boosting small states' influence, the current system is excessive. Fundamentally, I'm a little skeptical than non-proportionality is ever a great way to redress that sort of imbalance, but we could easily have a compromise system, e.g. N+1 senators (a kind of smoothing that boosts smaller states). Another thing we could do is limit large states' influence, e.g. by banning stuff like winner-takes-all solutions to the electoral college. >> that elections at all are in no way shape or form necessarily fair > A cultural and political flaw, not a Constitutional flaw. Maybe an omission, but you can't write all of the laws and practices necessary for a fair election into the Constitution; it would take up most of the document! On the one hand: fair enough. On the other: that something so fundamental to a form of government isn't specified is a problem. This isn't black and white; the constitution doesn't and shouldn't include "all of the laws and practices". But the almost complete lack of ground rules - while very federal in spirit - also means that it's a race to the bottom, and what makes sense locally (gerrymandering, winner takes all, etc) isn't good for the whole. The ground rules here are lacking, and that makes sense historically - but then again, that's exacty my point: the constitution is a product of its time, and not a good fit today. >> that the constitution isn't sufficiently amendable > A risk-averse and historically motivated bias; we had one bad Amendment (the 18th) and the fallout really put a damper on amendment movements. It's not just cultural, it's part of the rules too - it's way too easy for a tiny number of voters to essentially veto a change. Also, again, look around the rest of the world (here britain really stands out) - those protections don't seem to help in practice. Britain has no protections whatsoever on constitutional change, yet it hasn't collapsed after centuries. Again, I think that intuitively the idea of setting a high bar for amendments makes sense, but empyrically it does not appear to be borne out. Other protections might be to instead of raising a high bar, create a huge drag - make the process take a long time, and thus require multiple congresses to approve. Have veto-like capabilities, but ones that delay yet further, not prevent reform wholesale. >> the lack of a checks on the presidency (clearly not intentional, but impeachment is a purely hypothetical check) > Trump's impeachment trial was heavily impacted by the Democrats' primary season and not-so-subtle party establishment hopes that Warren would somehow pull out a win, so everything had to be rushed in order to avoid distracting her (and she lost badly anyway). I think you're really focusing on the details here. Set aside whatever political agreements or disagreements you have; the fact is that today's impeachment is a political process that requires going against the grain of partisanship. It's way to attractive to reject impeachment for partisan reasons; because after all - a flawed president one agrees with is still better than giving the other side a win, and it gets worse given the senate's extremely unproportional nature. This causes real problems too; it's not just a question of who wins or who loses - what you see in other countries that have an easier time ejecting leaders is that they try to mitigate damage a lot early, and are a lot more careful to avoid the kind of transgressions that have plagued quite a few US presidents in living memory. And when they do engage in dubious behavior they often seek approval by others at least in their own congressional majorities beforehand, because they know they risk getting hung out to dry otherwise - and that itself is a valuable check on excesses. Alternatively, impeachment itself should have much more teeth. Maybe trump is too recent a memory, but consider Clinton's impeachment. Sure, I think most people agree questioning a president about his sex life under oath was not reasonable - but lying under oath, really? The only reason that was OK was because the whole thing had the whiff of partisan witch-hunt, and that's a problem, because it'll always be spun to that. I'd rather have a system where everybody knows that if you pull a stunt like that you're liable to get removed. I don't mind if some other leader from the same party takes their place - in fact, that's a good idea, because it makes the process less about partisan rejection of the other side's election win, and more about personal responsibility - but leaders should not be even close to above the law; and right now they are - how bad does behavior need to get before they're actually punished?

mcguire 6y ago

"And even that is more poorly executed than elsewhere, due to the political nature of judicial appointees, and esp. due to the tradition of direct elections of some judges." How do you pick judges if you don't appoint them or elect them?

IIAOPSW 6y ago
Sortition
- mcguire 6y ago
  From what pool? In Texas, Justices of the Peace have no particular requirements, and are (IIRC) the equivalent of small-claims courts in the rural counties, but have had some special powers, like acting as coroner in counties without access to one. I had a government teacher with a long list of amusing anecdotes---like the JP that determined that a body with like, 27 bullet wounds had committed suicide. Judge Roy Bean was a JP; at one point someone brought in a dead cowboy who had fallen down a cliff. The body was carrying $25 and a pistol. Bean found the cowboy to be carrying a concealed weapon, confiscated the pistol, and fined the body $25.
  - IIAOPSW 6y ago
    From the pool of people with the qualifications requisite to practice law plus a few years of experience and good standing with the bar association.
    - mcguire 6y ago
      Well, it couldn't be worse than Roy Moore.
bshanks 6y ago
The category of 'appointment' contains many different methods, some of which may be better than the US system. One method that I've heard of is to have a committee (/"commission"/"council") select judges. The committee composition can draw from multiple branches of government (e.g. some members are existing judges and others are appointed/elected by the executive and/or legislative branches) and from civil society (e.g. appointed/elected by bar associations; in some implementations a majority of the committee is from civil society). The terms of members of the committee can be staggered. The idea is to make it difficult for any one controversial person or party or movement to consistently dominate the committee, because in order to do so they would need to consistently dominate multiple branches of government and civil society (because the different members of the committee are selected by these different institutions) over a long period of time (because of the staggered terms).

WalterBright 6y ago

> name 1 check/balance that's actually particularly good! The overarching one is the government being a triumvirate. If one branch overreaches, the other two can keep it in check. Triumvirates have historically been stable governments. Even in the Soviet Union - the Party, the Army, the Police.