There's nothing wrong with the American constitution. The problem is we don't follow it any more.
I'd argue this has eroded in recent decades due to lack of transparency, which has greatly hindered the third branch, the Judiciary, from being able to act as effectively as it might have otherwise.
I don't think that the American judiciary's problem is that it's hindered in its actions.
Historically, we should have seen more impeachments of federal officials; Congress needs to wield its authority in an exercise of checks and balances on the executive and judicial branches.
The Ethics Committees largely hand-slap only the most gross violations of their members. I see your intent there, but I'd much rather see Congress holding a higher standard of itself.
If you're referring to the overreach of Federal officials, then that gets a bit more sticky. Yes, it should be reined in, but when I see one Congressmen one-upping another on how we need to be "tough" or have "no tolerance" for this or that, I'm little surprised that our police and intelligence agencies act the way they do.
Puritanism dies hard. I'd say the constitution is working perfectly: the government we have is the one we deserve and one that really does reflect what this country, on the whole, wants. People in this country are still overall prudes who want harsh punishments, and that's what we've got. We don't need to fix the constitution, because that won't fix the root cause which is that our society needs fixing.
Can you justify this in a non-self-referential way, ie: via data other than election outcomes?
I have a much greater likelihood of engaging my state and local politicians than I do my federal representatives, and while New Hampshire residents have more direct representation than, say, California residents, it's still dramatically improved over our representation by federal reps.
This of course comes with its own set of pitfalls, for which the federal government has been placed as arbiter, and ceding / being granted power with which to remedy, but in my opinion, term limits seem to be more of a band-aid for a hemorrhaging wound than a a root cause fix.
That is not the system we have: we have a fully-polarized system in which each major party's agenda consists primarily of ensuring that the maximum number of items from the other party's agenda to be enacted will be zero (I say "maximum", because rolling back or repealing any previously-enacted items is also an option). Since they're both quite good at the tactics, the result is inaction even in times when action is needed, to the detriment of the American people.
This is not correct. Sometimes inaction is much better than action. In the case of a corrupt government, inaction is always preferable.
The US constitution is built to create deadlock. See checks/balances. It is this deadlock that has lead to American prosperity. While it is unable to do good, it is also unable to do harm.
The question this essay asks is, how effective is it at those goals? Are there situations where it could all collapse? If yes, are there other systems which are less likely to collapse?
A perfect case in point, the patriot act and the department of homeland security. That represented action taken. Solutions developed. Where they the right actions and the right solutions? Not in the least. Would we be better off without them? Probably.
People who complain about "deadlock" are really complaining Congress isn't implementing their legal and budgetary priorities. But that isn't because there's something wrong; that's because not enough of their countrymen agree.
"When politicians today praise America’s system of checks and balances, they seem to understand it as a self-correcting mechanism: When one branch pushes too hard, the other branches must push back, preserving equilibrium. That understanding actually encourages politicians to overreact, in the belief that they are playing a vital constitutional role. It also encourages complacency, because a system that rights itself requires no painful compromises to preserve."
The problem the author points out with the American constitution is not that we have deadlock, and then we must compromise to get around that deadlock. The problem the author points out is that we can get deadlock, and the system itself has no recovery mechanism for bad actors; deadlock makes it possible for the entire system to collapse. Parliamentary systems have new elections when the existing government cannot reach a deal. That is, the system itself has a failsafe for true deadlock.
- The electoral college was mean to provide a bit of separation between the population and election to the Presidential office. Remember, in the 1790s, direct election of what was envisioned as a powerful post worried many. While it is largely a formality now, the electoral college provided a degree of separation to allow for cooler heads to prevent the spontaneous election of someone unfit. (Personal thought: If Trump somehow gets the nomination, I motion that this be the perfect test of that body's powers.)
- I'm not sure what one can take issue with regarding the amendment process. It's ensured that the document has remained flexible over the years, and was a mechanism created from the outset to fix flaws and limitations known even then. The inclusion of this process could be seen as a nod to the charges Mason and others brought that the new Constitution did not do enough to protect individual liberties. There was not enough broad support at the time to determine what they should be, and the US needed a better system quickly to replace the Articles of Confederation. The amendment process allowed them to move forward and tackle the issue at a later time.
- In Revolutionary times, communications were either in person, or by letter. British soldiers stationed in the cities roamed in public, making meetings to discuss the state of affairs dangerous and difficult. Speaking of anything relating to disobedience to the King and Government in England was an arrestable offensive, a little cause or warrent was needed. So the private home was the preferred location.
Well now imagine that a new directive has been passed, and now a police officer has been assigned to live with you. It's all in the context of providing housing, but he is watching, listening, and will report a disloyal word up to his superiors. It's 18th century persistent surveillance, and the colonists were outraged.
That amendment today seems silly, (it's rarely been directly contested in court) but it's immensely important to establishing a Right to Privacy because of it's intent. https://en.wikipedia.org/wiki/Third_Amendment_to_the_United_...
>all suggest that there are things wrong with the American constitution.
Depending on your interpretation of "Wrong", I'd either agree or disagree. But the general point I was trying to make was that I don't find too many flaws with the examples you provided, and with regards to the third amendment, I was trying to provide an example in which even older parts of the document still have a lot of relevance, despite seeming stale at face value.
I didn't mean to insult your intelligence by providing the history lesson though; when I write a reply I do so imagining everyone in the discussion is reading, so while it is probably not new information to you, it might be to someone else. That's the real value in our talk here.
Sorry about that,
Cheers. =)
One other flaw I just put to wtbob below is that the way the document structures elections, the result is a two-party system that simply cannot adequately represent hundreds of millions of people of diverse backgrounds. Given that the document was raised explicitly in response to inadequate representation, that's a problem. Is it the worst problem ever in a constitution? No, but it is still an issue.
Edit: For comparison, here in Australia we have a couple of major parties, a couple of big minor parties, and a scattering of small parties all in government at the moment. Or in Germany, it's entirely normal for major parties to have to band together to form a majority in order to govern - from memory, Merkel's party gets about 25% of the vote, and has to create a coalition with other parties to get the majority required. There is space in these systems for new parties to rise, and the concept of "you're either for us or against us" is nowhere near as prevalent as in the US. These systems have their issues too, but they are more representative of their people due to their flexibility.
Re: Germany, (I live abroad in Germany right now, it's fascinating to watch) The fascinating thing was in this latest election, her party very nearly won an outright majority, meaning it would have required no partners at all. I think the CSU/CDU felt just short of the 51% required. There's never been such a sweeping victory of that scale since the party's inception in the 50's.
The beauty in the Constitution was that it laid out plans for a very well functioning system of government. It ensured changes had to be made with broad support across the nation, and provided for a very strong judiciary. It at once created a strong Federal system that at the same time was highly resistant to tyranny (again, relatively speaking.)
There have been many constitutions written across the world since, but many of them fall along the same lines as the perceptions and wishes espoused by those who misinterpret ours: They are thick documents that attempt to codify the nation's values and morals, as well as establish rules to live by.
The issue with that is that people and nations change, not to mention it is disadvantageous to the weak or minorities. It's why most of the third world has gone through numerous constitutions...
The U.S. Constitution did none of these things. It lays out a system of governance and conflict resolution. It specified powers. There is only one crime, treason, specif iced in the whole document. And most importantly, it laid out a system to make changes that would ensure the broadest support. That's it.
I groan every time some pundit makes the charge that we don't follow the constitution because of some moral outage or perceived cultural mistake being made that the Constitution is perceived to have provided for. It's the modern day bible, held up to be followed but never read.
The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.
The current system does not provide some kind of check on the "mobs." There have been 22,991 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast for someone other than the candidate nominated by the elector's own political party. 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome. The electors are and will be dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.
The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).
In a winner-take-all state, if Trump is nominated and wins in that state, his party's electors in that state will vote for him.
I do recall direct representation being a cited concern, though I agree that yes, it's original function doesn't seem to have been needed. But I couldn't tell you if that's because it's never been tested, or if it's because of the structure thereof that's prevented a test.
The Electoral College is not crazy; indeed, IMHO what we need is for the state legislatures to appoint their electors. What's crazy is the popular vote.
The House of Representatives were supposed to elect our President, after the Electoral College became deadlocked. That was the design of the Constitution.
The fact of the matter is, the Electoral College is NOT functioning as designed. But whatever, that's how the laws of this country work and we are a country of laws.
The national popular vote winner would receive all of the 270+ electoral votes of the enacting states.
The bill ensures that every vote, in every state, will matter equally in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.
Every vote would matter in the state counts and national count.
The bill has passed a total of 33 legislative chambers in 22 rural, small, medium, large, red, blue, and purple states states with 250 electoral votes. The bill has been enacted by 11 jurisdictions possessing 165 electoral votes—61% of the 270 electoral votes necessary to activate it, including 4 small jurisdictions, 3 medium-size states, and 4 big states.
The U.S. Constitution provides: "No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."
Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote: "Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
"The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."
Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated: "Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote: "The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"
The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power -- much less federal supremacy -- in the area of awarding of electoral votes in the first place.
In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states' action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that: "the test is whether the Compact enhances state power quaod [with regard to] the National Government."
The Court also noted that the compact did not "authorize the member states to exercise any powers they could not exercise in its absence."
Not allowing for multipolar politics is a problem with the constitution. Mind you, things like 'winner takes all' is a problem with the EC specifically.