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The U.S. Needs a Constitution – Here's How to Write It

49 points by hk__2 13y ago

jacques_chester 13y ago
Australia has profited enormously from the US Constitution. Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics. Take for example section 55 of our Constitution: it requires a tax Act to only deal with taxation, and only with one tax subject. This makes rider clauses flatly impossible. Similarly, when we held a referendum to become a republic, the model proposed deliberately avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis. Still. I don't think that the tide of crisis in the US has risen sufficiently high to trigger a mood for amendment, especially given the quasi-religious lionisation of the drafters of the US Constitution. They were intelligent men solving a problem, not prophets. Frankly I think a lot of them would be calling for amendments in order to solve the unforeseen dynamics that have subsequently emerged. Settle in, there's going to more of the same in decades to come. There is a lot of ruin in a nation, as Smith observed, and the USA is the wealthiest and most powerful nation in history.
- firstOrder 13y ago
  > avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis. Sure you just have a representative of the Monarch who boots elected prime ministers when she becomes displeased with them, like axing the, of course, Labor PM in 1975. When Charles I disbanded parliament, ultimately he found his own head chopped off. Australia's Liberals are lucky the modern Labor party is so milquetoast.
  - jacques_chester 13y ago
    The Queen has no direct input into Australian affairs and the dismissal of Whitlam, which was found to be Constitutional, led immediately to new elections. Nothing had to be shut down and the whole matter was settled peacefully within a few weeks. In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war. I'm just going to say that Australia is still in front on this one.
    - dragonwriter 13y ago
      > In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war The US has only had one civil war, and it wasn't a result of a Constitutional crisis between the President and the Congress.
      - jacques_chester 13y ago
        I'm sorry, you're right, it was a constitutional crisis born of a policy dispute.
- npsimons 13y ago
  Australia has profited enormously from the US Constitution. Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics. If you read the Federalist Papers, it's interesting to note how much of history (going back to the ancients, ie Sparta, Athens, etc) the writers of the US constitution studied. That's not to say that they were perfect (I try not to hero worship myself; it often leads either to disappointment or distortions), but it's also nice to see the whole "learn from history" aphorism put into practice.
  - dragonwriter 13y ago
    The Federalist Papers were written after the Constitution -- they were political ads for the campaign for ratification.
    - npsimons 13y ago
      Oops, my bad; corrected. EDIT: While I will agree that the Federalist Papers were strong rhetoric, and I can think of examples that contradict many of the axioms of them, I also believe it is very enlightening to read them because they reveal how much the framers of the US constitution had studied of other governments.
      - jacques_chester 13y ago
        They were also familiar with the concepts and theories that had not long before been published in France by Montesquieu, Rousseau, Diderot and others. Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order. It was a struggle of a local elite against a remote elite. He exclusively uses "War of Independence" in his historical writing.
        dragonwriter 13y ago
        > Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order. While they sometimes coincide, political, social, and economic revolutions are really separate things; the absence of the elements identified doesn't really say anything about whether or not it was a political revolution.
austinz 13y ago
This will never happen until the significant part of the population that considers the Constitution de facto divine writ is disabused of that notion. It's the same notion that gives rise to some of the more odious forms of American exceptionalism and encourages a firewall between ideological and academic views of that document.
- VaedaStrike 13y ago
  It's pride that produces the odious forms of American exceptionalism, not the view that the Constitution is divine writ. Why, praytell, would you prefer the academics give us a replacement? What great thing have the academics gotten right that would have us change such a document outside the conditions it sets forth as being requisite for such change?
  - comex 13y ago
    Huh? I do not think the parent was suggesting changing the Constitution outside of the mechanism it prescribes for doing so.
    - VaedaStrike 13y ago
      While you are correct, it does essentially advocate getting rid of it in that it puts forward the example of the Articles of Confederation. My issue is that it's seeking to abolish what exists presently in whatever manner it can manage it, else why would it use the Articles of Confederation as an example? Modify things piecemeal.
      - saraid216 13y ago
        If we decided to move to a parliamentary system, that would require rewriting two out of six articles in the Constitution. As it so happens, those 2 articles dominate the Constitution. You would literally be tossing out 60% of it. Does this mean the question of a parliamentary system is off the table for the United States? What would we look like as a parliamentary system. Or a hybrid presidential-parliamentarian.
VaedaStrike 13y ago
The self-assured certainty imbedded in the tone of this article belies the pride manifest in such a view that prefers the novel application of modern intellectual enlightenment to the time tested bulwark that is our iterative and flexible legal foundation. The fact that it sees the pain and dysfunction as symptoms of a systemic/endemic flaws is telling of a mentality similar to seeing children as inconvenient drains on environmental integrity or child-birth as merely some destructive medical condition from which women should be spared any time such is possible. This kind of pride and double guessing of the 'anti-fragile' system that is emergent from the US Constitution is the very thinking that's going to cause more problems for our nation than the forward thinking policies of the Greenspan era that gave us snapshots of prosperity through propping intellectual ideas RATHER than promoting true progress as it comes with all it's warts and growing pains. You don't win the future by throwing what's survived into the trash bin on account that it's not pretty or efficient enough for your liking or your intellectual enlightenment.
- maratd 13y ago
  > The fact that it sees the pain and dysfunction as symptoms of a systemic/endemic flaws is telling Indeed. One of the greatest strengths of the US Constitution, one of the reasons it is the oldest constitution in use to date, is the fact that it stemies government. That dysfunction is what has led to the extraordinary prosperity experienced by the United States.
  - jacques_chester 13y ago
    > That dysfunction is what has led to the extraordinary prosperity experienced by the United States. I think this is a rather simplistic view of history. Supposing that American history unfolded along Australian lines (no revolution, eventual unification by vote, constitutional bicameral monarchy with fused executive), I expect that it would still have wound up as the richest and most powerful nation in history. The USA straddles what is, quite simply, the best place on earth for agriculture and trade. No other country in the world has better internal navigation by river. No country has such a vast bowl of rich soil red reliably by rain from two massive mountain ranges draining into the interior. No other country in the world has so many ideal ports. There are more good ports on the American Atlantic coast than there are on the European Atlantic coast. It is difficult to make and sustain an argument that, once British institutions took root in such fertile conditions, the USA was never destined to be very wealthy and successful.
alex-g 13y ago
In my view, the US Constitution has been too successful. If it were more definitively broken, it could be repaired more easily. But there is no political will right now to make any amendments at all, outside of noodling on the Internet and in wonkish circles. As it is, the longevity of the Constitution has led to its being imbued with an almost mystical character, where it's viewed as the most important force preventing anarchy and/or tyranny, and as something incredibly fragile.
- bmelton 13y ago
  I disagree. The failure of the Constitution is pretty broad and varied, but its failures have definitely been apparent to those who know it and are paying attention. Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake. The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller. They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there. It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently." The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle. Sorry for the rant.
ams6110 13y ago
We don't need a new Constitution. The one we have isn't working only to the extent that the size and scope of the federal government is far larger than it should be. We need a new federal government. The Constitution is fine.
- incompatible 13y ago
  A new federal government would require control by somebody other than Democrats and Republicans, otherwise it's just more of the same. However the US system of elections makes it very difficult to escape from a two party system. As for size and scope of the federal government, that's surely been decided by elected representatives according to the procedures of the constitution?
  - gcv 13y ago
    An amendment eliminating the Electoral College would go a long way towards fixing the problems outlined in TFA. The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself.
    - LammyL 13y ago
      States are already half way there at eliminating the electoral college with the National Popular Vote Interstate Compact.
    - deleted 13y ago
      [deleted]
    - dragonwriter 13y ago
      > An amendment eliminating the Electoral College would go a long way towards fixing the problems outlined in TFA. No, it wouldn't. > The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself. Not really; the EC isn't the key feature of the electoral system that produces a two party system, and the features that are -- the fact that most elections, and particularly those for the Congress, are by plurality or majority-runoff methods -- is nowhere in the Constitution, but is the product of statute (and, largely, state statutes.)
saraid216 13y ago
So, because the comments here are busy fighting over patriotism and tone rather than the substance of the article, here's a list of salient bits: > When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forebear, has two houses. But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse. > "No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people," Linz wrote. > Most parliamentary systems, which unify the executive and legislative branches, have this sort of fail-safe mechanism. If a budget or other must-pass bill can't get passed, or a prime minister can't be chosen, then funding levels are placed on autopilot and new elections are called to resolve things. The people decide. > The Senate, he says, should be expanded to give more populous states at least a bit more representation, and it should also include "national senators"—all former presidents and vice presidents, maybe others—whose job it is to guard national interests over parochial ones. Sabato's plan would also double the size of the House (to make representatives closer to the people) and enforces a nonpartisan redistricting process to end gerrymandering. Elections for president, Senate, and House, in Sabato's vision, are rescheduled to coincide more often, while presidents would serve a single, six-year term (the idea is to make their governing less political, while giving them enough time to implement change). > Instead, Lessig, along with fellow Harvard law professor Laurence Tribe and many others, proposes a bottom-up form of public financing where voters get a voucher of, say, $50 off their taxes, which they can use to donate to candidates. > If Americans managed to convoke a constitutional convention, they could draw on hundreds of possible tweaks with text already written, available online thanks to the Google-funded Comparative Constitutions Project. After hundreds of tries, we (humans) have gotten so good at chartering governments that we've developed a set of best practices. > instant-runoff voting has become increasingly popular because it allows voters to rank multiple choices instead of picking just one. > Germany's Pirate Party advocates something called "liquid democracy." A cross between New England-style town meetings and Facebook, this model of delegative democracy leverages social relationships and expertise on an open-source software platform for collaborative decision-making. > Clay Shirky, a futurist at New York University, advocated for a "distributed version control democracy" in a recent TED talk. The New York state Legislature is already experimenting with this on its OpenLegislation platform, while the OpenGov Foundation, a nonprofit organization cofounded by Rep. Darrell Issa, R-Calif., is doing something similar on the federal level, allowing anyone to comment on and annotate legislation pending before the House.
callil 13y ago
There is a paradox in this article. If the politicians who are re-writing the constitution come from inside a dysfunctional system, how will they be able to ever come to a consensus?
- saraid216 13y ago
  Sorry, why are we leaving it to the politicians again?
  - VaedaStrike 13y ago
    If you have a democratic system of any kind with any degree or option of delegation there are always politicians. They may have different titles, but they are essentially the same thing.
    - saraid216 13y ago
      Then we all need to become politicians. I find this to be a reasonable thing to strive for.
- cpleppert 13y ago
  >>If the politicians who are re-writing the constitution come from inside a dysfunctional system,how will they be able to ever come to a consensus That is the issue with the current constitution, it doesn't allow a consensus; it doesn't have anything to do with politicians.
rpedela 13y ago
The constitution has the ability to modify it built-in. The main problem seems to be that we no longer view that as a viable option.
gcv 13y ago
Constitutions are wonderful things, and they can help set the tone of a nation. Yet, everything comes down to the people: the rulers and the public. As long as the rulers behave decently, things work well. When they don't, things fall apart. The Soviet Union had the most democratic constitution ever — and it meant nothing. The people "in charge" in the US have decided to behave like swine, on everything from ignoring swathes of the Bill of Rights to not talking to each other about policy. No amount of Constitutional rewriting will help with that. To use an analogy near and dear to the HN readership: you can use the best language, framework, and source control system, but that won't help if you have incompetent programmers who do not communicate.
- gametheoretic 13y ago
  Oh, c'mon - you're almost there. Your analogy is begging you to take it a step further. Law, code. How good are human beings at writing massive rules-systems which avoid conflicting logic?
  - saraid216 13y ago
    Not sure what amuses me more. The notion of citizen as end user, or the notion of lawyer as API consumer.
- dragonwriter 13y ago
  > The Soviet Union had the most democratic constitution ever — and it meant nothing. That's a popular statement, but its not really all that true. The Soviet Union had a Constitution with a very broad and progressive set of basic guarantees -- but also a very authoritarian set of limitations to those guarantees written directly into it. E.g., in the 1977 Constitution, Article 39 states, in relevant part, "Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens" while Article 59 states, in full: Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations. Citizens of the USSR are obliged to observe the Constitution of the USSR and Soviet laws, comply with the standards of socialist conduct, and uphold the honour and dignity of Soviet citizenship. And Articles 60 through 69 detail Constitutional duties, of citizens starting with, in Article 60: It is the duty of, and matter of honour for, every able-bodied citizen of the USSR to work conscientiously in his chosen, socially useful occupation, and strictly to observe labour discipline. Evasion of socially useful work is incompatible with the principles of socialist society. People who say that the Soviet Union had a model Constitution that was just ignored in practice probably haven't actually read the Constitution they are talking about. Or at least, I hope they haven't.
mortyseinfeld 13y ago
For those that TLDR all you have to know is that it's The Atlantic and leftists don't like the constitution because it get in the ways of their nefarious and devious plans for the country.
pirateking 13y ago
The next Constitution should be a set of mathematical proofs or computer program. At the very least, it will make sure law makers and enforcers are capable of higher order thinking. I wonder how to properly frame the problem from that approach.
- dragonwriter 13y ago
  > The next Constitution should be a set of mathematical proofs or computer program. At the very least, it will make sure law makers and enforcers are capable of higher order thinking. No, it won't. It'll just make it even easier for politicians to obscure their violations, since most of the public will understand it. Constitutions don't need to be self-executing, they need to be an effective tool for the public to hold government accountable to, and if the problem is that the public doesn't care enough to hold government accountable, no amount of reforming the Constitution is going to help -- the thing you have to do first is convince the public again that it is important to have a government accountable to limits set by the public.
saraid216 13y ago
A few years ago, Iceland made the news (with some distortion) by "crowdsourcing" a new Constitution. [1] I find this an intriguing project, but getting sufficient representation from a nation of 300 million is several orders of magnitude harder than getting the same for a nation of 300 thousand. What if we could do it anyways? What would an IT project for creating and maintaining a Constitution look like? We talk about version control for legislation, but what kind of systems might we build in order to maintain the Constitution itself? What kind of review process would we put in order to maintain data truth? Or perhaps we wouldn't have truth, but rather distribute it and fragment things while converging it periodically? Would that be possible? How, why? [1] The scare quotes are because the headline actually misrepresented the depth of the citizens' actual impact. You can do the googling if you want details.
patrickg_zill 13y ago
Why not use the one we have now? It hasn't been used in 50 years.
tunesmith 13y ago
The problem is how to get to there from here. I'm not sure that the Constitutional Convention is possible. The national popular vote might be possible. The electoral college was originally put in place to protect states' regional interests (via the extra two electoral votes per state). But the impact of those two votes was supposed to degrade over time, as the House (one EV per rep) was supposed to continue growing as population grew. If that had been allowed to continue growing, the Electoral College results would be virtually identical to the national popular vote by now. (Gore's EV total would have exceeded Bush's, for example.) If you get enough states to say they'll award their EVs to the national popular vote winner, as soon as 270 EVs worth of states agree to the same thing, then blammo - the Electoral College (as we know it) is kaput. Once a national popular vote is in place, it would be easier to start considering things like national proportional representation, rather than the plurality system we have now. As it is, the electoral college kind of bakes plurality into the system. One thing I'm still not sure of though - does proportional representation really improve anything? Wouldn't it basically result in political battles that would otherwise be settled in the primaries? You could basically look at the Tea Party and the Republicans as a ruling coalition in the house right now, and the battles between those two factions look pretty ridiculous. In proportional representation, it'd just mean there might be more of them (due to the spoiler effect of Democrats defeating Tea Party candidates after Tea Party candidates beat Republicans in primaries). There's also a reflexive bias towards IRV in the analysis. Ranked ballots are great, but that counting system is more trouble than it's worth.
- saraid216 13y ago
  Well, one of the biggest problems is that we have no idea what "there" actually looks like.
deleted 13y ago
[deleted]

49 points by hk__2 13y ago

Australia has profited enormously from the US Constitution. Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics. Take for example section 55 of our Constitution: it requires a tax Act to only deal with taxation, and only with one tax subject. This makes rider clauses flatly impossible. Similarly, when we held a referendum to become a republic, the model proposed deliberately avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis. Still. I don't think that the tide of crisis in the US has risen sufficiently high to trigger a mood for amendment, especially given the quasi-religious lionisation of the drafters of the US Constitution. They were intelligent men solving a problem, not prophets. Frankly I think a lot of them would be calling for amendments in order to solve the unforeseen dynamics that have subsequently emerged. Settle in, there's going to more of the same in decades to come. There is a lot of ruin in a nation, as Smith observed, and the USA is the wealthiest and most powerful nation in history.

firstOrder 13y ago
> avoided introducing an elected President as it was seen as introducing a new and destabilising power base that would eventually lead to a constitutional crisis. Sure you just have a representative of the Monarch who boots elected prime ministers when she becomes displeased with them, like axing the, of course, Labor PM in 1975. When Charles I disbanded parliament, ultimately he found his own head chopped off. Australia's Liberals are lucky the modern Labor party is so milquetoast.
- jacques_chester 13y ago
  The Queen has no direct input into Australian affairs and the dismissal of Whitlam, which was found to be Constitutional, led immediately to new elections. Nothing had to be shut down and the whole matter was settled peacefully within a few weeks. In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war. I'm just going to say that Australia is still in front on this one.
  - dragonwriter 13y ago
    > In the USA certain constitutional crises betwixt Presidents and Congress have led to civil war The US has only had one civil war, and it wasn't a result of a Constitutional crisis between the President and the Congress.
    - jacques_chester 13y ago
      I'm sorry, you're right, it was a constitutional crisis born of a policy dispute.
npsimons 13y ago
Australia has profited enormously from the US Constitution. Our own Constitution was drafted in the wake of the American Civil War and with observations gleaned from decades of US politics. If you read the Federalist Papers, it's interesting to note how much of history (going back to the ancients, ie Sparta, Athens, etc) the writers of the US constitution studied. That's not to say that they were perfect (I try not to hero worship myself; it often leads either to disappointment or distortions), but it's also nice to see the whole "learn from history" aphorism put into practice.
- dragonwriter 13y ago
  The Federalist Papers were written after the Constitution -- they were political ads for the campaign for ratification.
  - npsimons 13y ago
    Oops, my bad; corrected. EDIT: While I will agree that the Federalist Papers were strong rhetoric, and I can think of examples that contradict many of the axioms of them, I also believe it is very enlightening to read them because they reveal how much the framers of the US constitution had studied of other governments.
    - jacques_chester 13y ago
      They were also familiar with the concepts and theories that had not long before been published in France by Montesquieu, Rousseau, Diderot and others. Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order. It was a struggle of a local elite against a remote elite. He exclusively uses "War of Independence" in his historical writing.
      - dragonwriter 13y ago
        > Jacques Barzun argues that "Revolution" is the wrong term for what happened in the USA, even as a convenient shorthand. There was no widespread transfer of property and no wholesale breakdown of social order. While they sometimes coincide, political, social, and economic revolutions are really separate things; the absence of the elements identified doesn't really say anything about whether or not it was a political revolution.

austinz 13y ago

This will never happen until the significant part of the population that considers the Constitution de facto divine writ is disabused of that notion. It's the same notion that gives rise to some of the more odious forms of American exceptionalism and encourages a firewall between ideological and academic views of that document.

VaedaStrike 13y ago
It's pride that produces the odious forms of American exceptionalism, not the view that the Constitution is divine writ. Why, praytell, would you prefer the academics give us a replacement? What great thing have the academics gotten right that would have us change such a document outside the conditions it sets forth as being requisite for such change?
- comex 13y ago
  Huh? I do not think the parent was suggesting changing the Constitution outside of the mechanism it prescribes for doing so.
  - VaedaStrike 13y ago
    While you are correct, it does essentially advocate getting rid of it in that it puts forward the example of the Articles of Confederation. My issue is that it's seeking to abolish what exists presently in whatever manner it can manage it, else why would it use the Articles of Confederation as an example? Modify things piecemeal.
    - saraid216 13y ago
      If we decided to move to a parliamentary system, that would require rewriting two out of six articles in the Constitution. As it so happens, those 2 articles dominate the Constitution. You would literally be tossing out 60% of it. Does this mean the question of a parliamentary system is off the table for the United States? What would we look like as a parliamentary system. Or a hybrid presidential-parliamentarian.

VaedaStrike 13y ago

The self-assured certainty imbedded in the tone of this article belies the pride manifest in such a view that prefers the novel application of modern intellectual enlightenment to the time tested bulwark that is our iterative and flexible legal foundation. The fact that it sees the pain and dysfunction as symptoms of a systemic/endemic flaws is telling of a mentality similar to seeing children as inconvenient drains on environmental integrity or child-birth as merely some destructive medical condition from which women should be spared any time such is possible. This kind of pride and double guessing of the 'anti-fragile' system that is emergent from the US Constitution is the very thinking that's going to cause more problems for our nation than the forward thinking policies of the Greenspan era that gave us snapshots of prosperity through propping intellectual ideas RATHER than promoting true progress as it comes with all it's warts and growing pains. You don't win the future by throwing what's survived into the trash bin on account that it's not pretty or efficient enough for your liking or your intellectual enlightenment.

maratd 13y ago
> The fact that it sees the pain and dysfunction as symptoms of a systemic/endemic flaws is telling Indeed. One of the greatest strengths of the US Constitution, one of the reasons it is the oldest constitution in use to date, is the fact that it stemies government. That dysfunction is what has led to the extraordinary prosperity experienced by the United States.
- jacques_chester 13y ago
  > That dysfunction is what has led to the extraordinary prosperity experienced by the United States. I think this is a rather simplistic view of history. Supposing that American history unfolded along Australian lines (no revolution, eventual unification by vote, constitutional bicameral monarchy with fused executive), I expect that it would still have wound up as the richest and most powerful nation in history. The USA straddles what is, quite simply, the best place on earth for agriculture and trade. No other country in the world has better internal navigation by river. No country has such a vast bowl of rich soil red reliably by rain from two massive mountain ranges draining into the interior. No other country in the world has so many ideal ports. There are more good ports on the American Atlantic coast than there are on the European Atlantic coast. It is difficult to make and sustain an argument that, once British institutions took root in such fertile conditions, the USA was never destined to be very wealthy and successful.

alex-g 13y ago

In my view, the US Constitution has been too successful. If it were more definitively broken, it could be repaired more easily. But there is no political will right now to make any amendments at all, outside of noodling on the Internet and in wonkish circles. As it is, the longevity of the Constitution has led to its being imbued with an almost mystical character, where it's viewed as the most important force preventing anarchy and/or tyranny, and as something incredibly fragile.

bmelton 13y ago
I disagree. The failure of the Constitution is pretty broad and varied, but its failures have definitely been apparent to those who know it and are paying attention. Separation of powers has effectively failed due to the Supreme Court's supreme reliance on precedent, or stare decisis. One bad decision, unless explicitly overturned, has ripple effects on every decision that follows it. Because of SCOTUS' strict adherence to precedent, and their relative unwillingness to overturn bad law except where they absolutely, positively have to, we have a ton of bad precedent on the books, and everybody pussyfoots around them, which leaves more and more resultant bad decisions in their wake. The second amendment has been as flagrantly violated for years as the fourth is now. "Congress shall make no law" is obscured by endless debate over whether the right belongs to a militia, or whether it is an individual right. After the Heller decision, that debate has shifted over to whether or not a given piece of legislation is "reasonable", as the Heller decision declared legislation must be. This of course ignores the text of the Constitution, that Congress shall make no law, but because they have made laws, and some of those laws have been upheld by bad precedent, we have a circular logic in place. Congress shall make no law, but the last law that was made was upheld, so no laws can be made, so long as they are reasonable. Further, SCOTUS has thus far passed on newer, more updated challenges in the wake of Heller. They've made the same side-steps on gay marriage. A favorable decision has been reached, but there's no teeth in place to prevent states from re-interpreting the decision however they like, and everything moves so slowly that political parties can reap the rewards from both the passage of a bad law, and its repeal. The democrats passed DOMA, to great acclaim. The democrats claimed success when DOMA was overturned, to great acclaim. The Constitution's purpose is to prevent legislation from catering to the whims of the people, and it is clearly not doing a great job there. It's hard to imagine that any originalist text or intent would condone today's perennial slaughter of the fourth amendment, but on it goes. People stake their claims on individual words in the clause, while ignoring the text on the whole. This is done on purpose, because there is no penalty for violating the Constitution, and because even if we were to attempt to hold those accountable to the text, it's so easy to say "Well, I read it differently." The problem is that the Constitution, for as much as we might all love it in theory, is written in plain English, and is subject to interpretation by lawyers. There's a reason lawyerese is used, and it's to prevent plain English readings from being interpretable. But we elect those who are, for better or worse, the most likely to be able to twist its words into meaning whatever we want, and we either can't, or don't hold them accountable for anything above and beyond the next election cycle. Sorry for the rant.

ams6110 13y ago

We don't need a new Constitution. The one we have isn't working only to the extent that the size and scope of the federal government is far larger than it should be. We need a new federal government. The Constitution is fine.

incompatible 13y ago
A new federal government would require control by somebody other than Democrats and Republicans, otherwise it's just more of the same. However the US system of elections makes it very difficult to escape from a two party system. As for size and scope of the federal government, that's surely been decided by elected representatives according to the procedures of the constitution?
- gcv 13y ago
  An amendment eliminating the Electoral College would go a long way towards fixing the problems outlined in TFA. The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself.
  - LammyL 13y ago
    States are already half way there at eliminating the electoral college with the National Popular Vote Interstate Compact.
  - deleted 13y ago
    [deleted]
  - dragonwriter 13y ago
    > An amendment eliminating the Electoral College would go a long way towards fixing the problems outlined in TFA. No, it wouldn't. > The Constitution is largely very good, but it unintentionally created a de-facto two party system. With the executive branch free from that sort of nonsense, it may be that the legislature will right itself. Not really; the EC isn't the key feature of the electoral system that produces a two party system, and the features that are -- the fact that most elections, and particularly those for the Congress, are by plurality or majority-runoff methods -- is nowhere in the Constitution, but is the product of statute (and, largely, state statutes.)

saraid216 13y ago

So, because the comments here are busy fighting over patriotism and tone rather than the substance of the article, here's a list of salient bits: > When 24 military officers and civilians were given a single week to craft a constitution for occupied Japan in 1946, they turned to England. The Westminster-style parliament they installed in Tokyo, like its British forebear, has two houses. But unlike Congress, one is clearly more powerful than the other and can override the less powerful one during an impasse. > "No democratic principle exists to resolve disputes between the executive and the legislature about which of the two actually represents the will of the people," Linz wrote. > Most parliamentary systems, which unify the executive and legislative branches, have this sort of fail-safe mechanism. If a budget or other must-pass bill can't get passed, or a prime minister can't be chosen, then funding levels are placed on autopilot and new elections are called to resolve things. The people decide. > The Senate, he says, should be expanded to give more populous states at least a bit more representation, and it should also include "national senators"—all former presidents and vice presidents, maybe others—whose job it is to guard national interests over parochial ones. Sabato's plan would also double the size of the House (to make representatives closer to the people) and enforces a nonpartisan redistricting process to end gerrymandering. Elections for president, Senate, and House, in Sabato's vision, are rescheduled to coincide more often, while presidents would serve a single, six-year term (the idea is to make their governing less political, while giving them enough time to implement change). > Instead, Lessig, along with fellow Harvard law professor Laurence Tribe and many others, proposes a bottom-up form of public financing where voters get a voucher of, say, $50 off their taxes, which they can use to donate to candidates. > If Americans managed to convoke a constitutional convention, they could draw on hundreds of possible tweaks with text already written, available online thanks to the Google-funded Comparative Constitutions Project. After hundreds of tries, we (humans) have gotten so good at chartering governments that we've developed a set of best practices. > instant-runoff voting has become increasingly popular because it allows voters to rank multiple choices instead of picking just one. > Germany's Pirate Party advocates something called "liquid democracy." A cross between New England-style town meetings and Facebook, this model of delegative democracy leverages social relationships and expertise on an open-source software platform for collaborative decision-making. > Clay Shirky, a futurist at New York University, advocated for a "distributed version control democracy" in a recent TED talk. The New York state Legislature is already experimenting with this on its OpenLegislation platform, while the OpenGov Foundation, a nonprofit organization cofounded by Rep. Darrell Issa, R-Calif., is doing something similar on the federal level, allowing anyone to comment on and annotate legislation pending before the House.

callil 13y ago

There is a paradox in this article. If the politicians who are re-writing the constitution come from inside a dysfunctional system, how will they be able to ever come to a consensus?

saraid216 13y ago
Sorry, why are we leaving it to the politicians again?
- VaedaStrike 13y ago
  If you have a democratic system of any kind with any degree or option of delegation there are always politicians. They may have different titles, but they are essentially the same thing.
  - saraid216 13y ago
    Then we all need to become politicians. I find this to be a reasonable thing to strive for.
cpleppert 13y ago
>>If the politicians who are re-writing the constitution come from inside a dysfunctional system,how will they be able to ever come to a consensus That is the issue with the current constitution, it doesn't allow a consensus; it doesn't have anything to do with politicians.

rpedela 13y ago

The constitution has the ability to modify it built-in. The main problem seems to be that we no longer view that as a viable option.

gcv 13y ago

Constitutions are wonderful things, and they can help set the tone of a nation. Yet, everything comes down to the people: the rulers and the public. As long as the rulers behave decently, things work well. When they don't, things fall apart. The Soviet Union had the most democratic constitution ever — and it meant nothing. The people "in charge" in the US have decided to behave like swine, on everything from ignoring swathes of the Bill of Rights to not talking to each other about policy. No amount of Constitutional rewriting will help with that. To use an analogy near and dear to the HN readership: you can use the best language, framework, and source control system, but that won't help if you have incompetent programmers who do not communicate.

gametheoretic 13y ago
Oh, c'mon - you're almost there. Your analogy is begging you to take it a step further. Law, code. How good are human beings at writing massive rules-systems which avoid conflicting logic?
- saraid216 13y ago
  Not sure what amuses me more. The notion of citizen as end user, or the notion of lawyer as API consumer.
dragonwriter 13y ago
> The Soviet Union had the most democratic constitution ever — and it meant nothing. That's a popular statement, but its not really all that true. The Soviet Union had a Constitution with a very broad and progressive set of basic guarantees -- but also a very authoritarian set of limitations to those guarantees written directly into it. E.g., in the 1977 Constitution, Article 39 states, in relevant part, "Enjoyment by citizens of their rights and freedoms must not be to the detriment of the interests of society or the state, or infringe the rights of other citizens" while Article 59 states, in full: Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations. Citizens of the USSR are obliged to observe the Constitution of the USSR and Soviet laws, comply with the standards of socialist conduct, and uphold the honour and dignity of Soviet citizenship. And Articles 60 through 69 detail Constitutional duties, of citizens starting with, in Article 60: It is the duty of, and matter of honour for, every able-bodied citizen of the USSR to work conscientiously in his chosen, socially useful occupation, and strictly to observe labour discipline. Evasion of socially useful work is incompatible with the principles of socialist society. People who say that the Soviet Union had a model Constitution that was just ignored in practice probably haven't actually read the Constitution they are talking about. Or at least, I hope they haven't.

mortyseinfeld 13y ago

For those that TLDR all you have to know is that it's The Atlantic and leftists don't like the constitution because it get in the ways of their nefarious and devious plans for the country.

pirateking 13y ago

The next Constitution should be a set of mathematical proofs or computer program. At the very least, it will make sure law makers and enforcers are capable of higher order thinking. I wonder how to properly frame the problem from that approach.

dragonwriter 13y ago
> The next Constitution should be a set of mathematical proofs or computer program. At the very least, it will make sure law makers and enforcers are capable of higher order thinking. No, it won't. It'll just make it even easier for politicians to obscure their violations, since most of the public will understand it. Constitutions don't need to be self-executing, they need to be an effective tool for the public to hold government accountable to, and if the problem is that the public doesn't care enough to hold government accountable, no amount of reforming the Constitution is going to help -- the thing you have to do first is convince the public again that it is important to have a government accountable to limits set by the public.

saraid216 13y ago

A few years ago, Iceland made the news (with some distortion) by "crowdsourcing" a new Constitution. [1] I find this an intriguing project, but getting sufficient representation from a nation of 300 million is several orders of magnitude harder than getting the same for a nation of 300 thousand. What if we could do it anyways? What would an IT project for creating and maintaining a Constitution look like? We talk about version control for legislation, but what kind of systems might we build in order to maintain the Constitution itself? What kind of review process would we put in order to maintain data truth? Or perhaps we wouldn't have truth, but rather distribute it and fragment things while converging it periodically? Would that be possible? How, why? [1] The scare quotes are because the headline actually misrepresented the depth of the citizens' actual impact. You can do the googling if you want details.

patrickg_zill 13y ago

Why not use the one we have now? It hasn't been used in 50 years.

tunesmith 13y ago

The problem is how to get to there from here. I'm not sure that the Constitutional Convention is possible. The national popular vote might be possible. The electoral college was originally put in place to protect states' regional interests (via the extra two electoral votes per state). But the impact of those two votes was supposed to degrade over time, as the House (one EV per rep) was supposed to continue growing as population grew. If that had been allowed to continue growing, the Electoral College results would be virtually identical to the national popular vote by now. (Gore's EV total would have exceeded Bush's, for example.) If you get enough states to say they'll award their EVs to the national popular vote winner, as soon as 270 EVs worth of states agree to the same thing, then blammo - the Electoral College (as we know it) is kaput. Once a national popular vote is in place, it would be easier to start considering things like national proportional representation, rather than the plurality system we have now. As it is, the electoral college kind of bakes plurality into the system. One thing I'm still not sure of though - does proportional representation really improve anything? Wouldn't it basically result in political battles that would otherwise be settled in the primaries? You could basically look at the Tea Party and the Republicans as a ruling coalition in the house right now, and the battles between those two factions look pretty ridiculous. In proportional representation, it'd just mean there might be more of them (due to the spoiler effect of Democrats defeating Tea Party candidates after Tea Party candidates beat Republicans in primaries). There's also a reflexive bias towards IRV in the analysis. Ranked ballots are great, but that counting system is more trouble than it's worth.

saraid216 13y ago
Well, one of the biggest problems is that we have no idea what "there" actually looks like.

deleted 13y ago

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