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Harvard legal scholars debate the state of the U.S. constitution (2025)
- gnabgib 9mo ago(2025)
- tomhow 9mo agoThanks - it's in the greyzone when the article is less than 5 months old.
- gnabgib 9mo agoIt's >4months old.. so, nothing grey? (:
- tomhow 9mo agoSorry < 5 months, indeed just under 4.5 months. We don't put the year on an article posted in late December that was posted in January of the same year, that could be over 11.5 months old. There's no perfect answer for these ones :)
- gnabgib 9mo agoAgreed.. but this is pretty out of date, mostly about politics from April/2025 and a 2024 Book "The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them". Notes politics are "fast moving", I'm not sure that Aziz Rana or Noah Feldman would say the same now.
- gedy 9mo agoBiggest challenge is that people bleat about executive overreach when their team is not in power, then smirk with glee when they have it. Similar to debates about freedom of speech, etc.
- postflopclarity 9mo ago[flagged]
- vessenes 9mo agoIt's 100% both sides. We haven't had a president work to roll back his own power, since ... Hmm. Maybe Gerald Ford? I guess Carter was fairly principled on some of this. This part of the system - executive power grabs - is supposed to be curtailed by the courts first and congress second in the US system.
- happytoexplain 9mo agoThere are light years of space between the behavior we're seeing now and "a president working to roll back his own power," and even that has arguably happened in many presidencies, depending on what you mean. You would need much more than that to demonstrate anything approaching behavioral parity on this dimension. Otherwise - yes, politicians from every party, forever, everywhere, exhibit some similar faults.
- postflopclarity 9mo ago> We haven't had a president work to roll back his own power, this is just not true. For example, all under the Obama administration * the closure of Guantanamo Bay and other black sites, the prohibition of torture as an interrogation method including updates to Army Field Manual and mandatory access of Red Cross to any POW, all represented a significant reduction in executive power in how we treat detainees. * following the Snowden leaks there were several actions taken to curtail executive power in applying surveillance programs to both US citizens and non-US persons. these also rolled back several components of the PATRIOT act (passed under his predecessor we all know and love, Dubya) * the signing statements reform meant the executive no longer had an effective line-item veto * the AG under Obama implemented a new DoJ policy limiting the use of "state secret" privilege during litigations.
- api 9mo ago
- stackskipton 9mo agoI think they rightly pointed out that US States construct is problematic esp in much more interconnected world. However, I think fundamental problem still goes back to politics where Congress effectively does not do their job and thus fighting around executive and judicial leave us in worse place. Chevron and lack of it is mostly due to Congress just passing big stuff and then massive fights in courts when Congress could step in and be like "Nope, we are changing our mind, this is happening."
- reactordev 9mo agoCongress moves too slow to be effective at thwarting off bad policy (largely written by lobbyists) until after it’s done its damage. By then, the senators that sponsored the bill quietly retire. Or they double down behind closed doors to be elected well into their geriatric years. I’m for term limits and age caps.
- terminalshort 9mo agoLobbyists can't write bad policy unless it is passed by congress, so basically you are saying that congress doesn't move fast enough to stop congress. I'm also skeptical of this "but the lobbyists" argument and I can't think of a single major problem facing the country that can be reasonably blamed on them.
- reactordev 9mo agohttps://systemicjustice.org/article/corporate-influence/ https://systemicjustice.org/article/corporate-influence/ https://pmc.ncbi.nlm.nih.gov/articles/PMC10938928/ https://pmc.ncbi.nlm.nih.gov/articles/PMC10938928/ You can't think of any?
- bickfordb 9mo agoThe constitution has been absurdly broken by a cult of partisan federal judges claiming to be textual, but then inventing an absurd canon of non-laws no one can reference: * Unitary executive theory. Congress can't create a federal reserve, except for when the supreme court likes it. * Major questions doctrine. Congress can't create an EPA and give it open ended authority to regulate its way to clean air * Qualified immunity. Congress can't stop ICE agents from murdering people * Historical tradition as regard to the 2nd amendment. Congress can't ban everyone from walking around with military assault weapons. I don't see how Congress can easily fix this.
- jameskilton 9mo agoNo, the Constitution is fine. We are failing to enforce the Constitution like we did in the past, and that is why America is falling apart.
- jrflowers 9mo agoI love clarifications like this. It is like “The Constitution is fine; Nicolas Cage never stole it. That was just a film. In any case even if he had, it is is documented that he eventually returned it unharmed”
- jleyank 9mo agoYup. There were supposed to be 3 separate, contentious arms of the government: executive, legislative and judicial. The problem, and I honestly can't see a solution to it, is that the same party/group controls all three and nobody's willing to buck the trend. The "guardrails" are there, it merely turns out they're only weakly enforced.
- whynotminot 9mo agoI don’t know what the solution is, because a fourth branch of government also could be problematic. But it’s becoming a very obvious problem that the justice department is not separate from the executive.
- efitz 9mo agoThe justice department IS part of the executive branch; it’s a department headed by a cabinet secretary.
- whynotminot 9mo agoYes? That’s what I said.
- andsoitis 9mo ago> But it’s becoming a very obvious problem that the justice department is not separate from the executive. The alternatives are probably worse. Every alternative trades political accountability for independence or vice versa. The alternatives are: An Independent Prosecutorial Branch (a “fourth branch”), OR Prosecutors as Part of the Judicial Branch, OR Congress-Controlled Prosecution, OR Fully Decentralized / Elected Federal Prosecutors. The US uses a hybrid model of executive control with strong counterweights rather than full independence. This model persists because it maintains democratic accountability, preserves adversarial courts, and allows checks without creating an unaccountable power center.
- nine_zeros 9mo ago[dead]
- KnuthIsGod 9mo agoThe actual title is "Is the Constitution Broken?" Someone has edited it to show the more soporific subtitle...
- johnnyanmac 9mo agoIt's a more curious title than the clickbait headline.
- FridayoLeary 9mo agoIt's defunct isn't it? If i'm being kind i would say that Americas strength comes from her people, not the constitution. I do believe that's the truth. My main complaint on the constitution, is perfectly explained, ironically by the guy trying to defend it >>Feldman cited another reason to defend the Constitution: It “has the capacity to evolve and change.” In 1919, he explained, Supreme Court Justice Oliver Wendell Holmes Jr. “basically invented modern free speech law,” establishing, in a series of opinions, the now- fundamental concept that free expression should be permitted unless it poses a clear danger to others. “He understood that the Constitution had to evolve,” Feldman said. So there you have it. The reason the constitution is great because judges allow themselves to interpret it in ways it was never intended to be interpreted (sometimes based on loyalty owed to a political faction or) that aligns with the way they want it to be, not the way it is. That's frankly bonkers. Now i'll get back to my country run by the guys 2/3 of the country voted against, lords, a king and a supreme court run by activist judges with a large portion of our law outsourced to the EU...
- jameslk 9mo ago> Chief among those hard-wired components, he said, is the Constitution’s focus on states, rather than individual voters, as the basic “representational unit.” That arrangement “shapes all the elements of our electoral and legal system,” Rana said: the House and Senate, the Electoral College, Supreme Court confirmations. And this arrangement is partly why the U.S. Constitution is among the hardest in the world to amend. It doesn’t simply undermine majority rule, he added; the minority it empowers are those who have historically weilded disproportionate influence in the political system. This is by design. The United States is exactly meant to be that: states that are united, but independent. The federal government was never intended to lord over everyone's lives. The expansion of the federal government, especially the powers of the executive branch, is the problem everyone seems to dislike (when their favored party isn't controlling this branch), and that's what needs to change
- VikingCoder 9mo agoIf I'm not mistaken, there was not supposed to be a standing army. If you have a standing army, that creates a whole rats nest of problems. And ps, I've talked to people who think we shouldn't have a standing army, and I frankly think they're insane.
- rayiner 9mo agoStanding armies create structural problems. Many countries in Asia are constantly having civilian governments being overthrown by the army.
- adgjlsfhk1 9mo agoNot having standing armies also creates structural problems (mostly getting invaded). There are only 21 countries without a standing army, and they're almost all micronations with <200k population (mostly tiny islands). Iceland is the only one of them with a GDP per capita worth mentioning, but it's also part of Nato, the largest military alliance in the world.
- 9mo ago
- softwaredoug 9mo agoOne challenge is the executive can move fast while legislative/courts go slow by design. But the executive needs other slow branches for lasting change. Remember we were freaking out about a year to six months ago? A lot has either been absorbed into legal precedent, quietly rolled back by Congress / courts. But it takes a long time. Whatever comes out of these years that lasts will probably be because of SCOTUS more than Trump.
- api 9mo agoUnbalanced executive power has been growing for a long time. It was just waiting for someone power mad enough to fully leverage it. If we make it through this intact we need to reel this in. Unfortunately neither party seems to want to do so. They’d rather fight for that office in the hope of leveraging that power.
- johnnyanmac 9mo ago>Remember we were freaking out about a year to six months ago? we're still freaking out, and it's getting worse. Why do you ask? >A lot has either been absorbed into legal precedent, quietly rolled back by Congress / courts. But it takes a long time. And Trump has ignored at least a third of the judicial rulings: https://www.independent.co.uk/news/world/americas/us-politics/trump-federal-court-ruling-ignore-b2792939.html https://www.independent.co.uk/news/world/americas/us-politic... If congress can't act quick and hold him accountable, there may not be a long time to come. >Whatever comes out of these years that lasts will probably be because of SCOTUS more than Trump. We're still feeling aftereffects of actions from Reagan. History assures you that you don't need everything to be de jure to fundamentally shift the Overton curtain. Especially in regards to the economy.
- deleted 9mo ago[deleted]
- dzonga 9mo agothis is how dictatorships start -- paid intellectuals who lack integrity -- they will argue every cause that they can, to debate if it's valid or not.
- ecshafer 9mo agoThe US constitution is working great. Democracy isn't necessarily good. If we had a national vote where 51% of the people voted to kill 49% of the people, that would be bad. More democratic institutions also have a tendency to favor hand outs to people, people vote for the policy that gives them free stuff, or rather that robs other people and enriches them. The issue is a cultural one, where people are looking out for themselves over their country. Where politicians seek to enrich themselves, people just want to get a hand out, and lobbyists write sections of laws. Where democracy shines is that we can leverage democracy to amend the constitution. If they think that moving to a pure popular vote or something would be better, then get that amended into the constitution, we have a process for this, just get 2/3s of states to vote for it.
- yks 9mo ago> If we had a national vote where 51% of the people voted to kill 49% of the people, that would be bad. How is it different from the majority of electoral votes supporting killing everyone in, I don't know, let's pick a random state, Minnesota.
- atmavatar 9mo ago> The US constitution is working great. Democracy isn't necessarily good. If we had a national vote where 51% of the people voted to kill 49% of the people, that would be bad. "Democracy is bad because majorities can vote for bad things" is hardly a meaningful argument on its own. How is the current system of minority rule via electors better? If we had an electoral vote where 22% of the people voted to kill 78% of the people[1], would that be better? 1. The current apportionment of electors is such that you can achieve 270 electoral votes with states accounting for roughly 43% of the population. Since nearly all states grant all electors to the candidate winning the popular vote within themselves, you only need roughly 22% of the overall US population to elect a president.
- ecshafer 9mo ago22% is unlikely. The electoral college, the senate, the house, the state legiatures for constitutional ammendments. These are multiple layers that are meant to act as a check against a popular mob in a heat of passion.
- carabiner 9mo ago[flagged]
- keernan 9mo agoMany of the comments lay the blame for the threat to democracy at the feet of SCOTUS and Congress for failing to act in a time of crisis to strangle the constitutional excesses of the Trump administration. I see it much differently. I see a Constitution exposed. It's purported 'checks and balances' stripped naked. For the reality is this: the Constitution provides neither SCOTUS or Congress the ability to enforce their constitutional authorities. The Executive has sole control over the police power and military power. And when a President is surrounded by heads of the FBI DOJ and Military who swear loyalty to the man, not the office, there is literally nothing SCOTUS or Congress can do. SCOTUS has, thus far into the current Trump term, been very careful to rule in a manner that avoids inviting Trump to tell SCOTUS: "you've had your say, not enforce it." SCOTUS would much rather grant Trump powers that some future SCOTUS can take back. But the Executive exposing SCOTUS as barren is something that can never be undone. The same for Congress. Congress can impeach Trump yet again. And in some imaginary world the Senate could actually find him guilty. But where is the army or police who shoot it out with Trump's FBI and military so they can walk Trump out of the West Wing in handcuffs? The very terms of our Constitution are such that only a coup d'etat can remove a President who, surrounded by loyalists in the FBI and military, refuses to step down voluntarily. That is my conclusion about why the Constitution is broken: it has been exposed for what it is. All we can do is wait and see how SCOTUS and Congress respond when Trump finally tells them: "Let's see you make me" Edit: correct "...that invites Trump..." with "...that avoids inviting Trump"
- Panzer04 9mo agoIf the president doesn't step down when ordered to do so lawfully, its up to the individual participants in government to obey the law and not the president. It's not that complicated. That the American government has reached a position where it's somehow questionable whether the government and its departments should answer to congress or the president is ridiculous.
- keernan 9mo agoThe individual participants in government demonstrate every day that they do nothing in response to Trump's literally daily illegal actions. When Trump tells SCOTUS to 'get lost' or when he cancels elections or when he declares martial law in response to some made up provocation; or when he refuses to leave office; When any or all of these things occur, and the heads of the FBI, and ICE ( his personal police force ), and the DOJ and the military all put up a united front in support of him - what are the names of the people you are referring to who will have the physical ability to take any action against Trump? edit: typo 'canceks'
- Glyptodon 9mo agoI think my question is "if it's failing does it mean it's broken?"
- retrocog 9mo agoHint: Its easier to have balanced federalism when the federal government can't just print money and buy the states.
- asdfasga 9mo agoLosing the dollar's reserve currency status has economic downsides, but maybe the health of the republic demands it.
- Swoerd123 9mo agoFor decades, historians will debate how the United States ended up capitulating to a thin-skinned piece of foreskin—and how that failure damaged not only America, but destabilized other countries as well. Home of the brave, my hairy ass.
- nacozarina 9mo agoAll three branches of govt have already abandoned its governing charter. The nation is already in a state of low-intensity civil war. It will switch to medium-intensity in the next 12 months before resolution. Likely to be short, the optimists say.