The case against the American Constitution

Everyone agrees that the American Constitution is perfect, an exceptional document akin to holy writ. It is the absolute essence of freedom distilled, committed to parchment for the eternal benefit of all mankind... right?

Wrong. The Constitution is janky. It's antiquated. It's poorly designed. And it's falling apart before our very eyes.

I'll concede that there was indeed a time, hundreds of years ago, when the Constitution was, briefly and for its era, a halfway decent first stab at a workable democratic political system for the Northern states. (In the South, it organized one of the most brutal tyrannies in history.) Still, it only got close to systemically democratic with the Reconstruction Amendments, half of which were promptly ignored for 90 years. And even with those amendments, it still has three fundamental defects.

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Now, you're going to hear a lot from conservatives in the coming weeks during the confirmation hearings for Supreme Court nominee Neil Gorsuch about how wonderful the Constitution is, and how critical it is that Gorsuch stick to an "originalist" reading of this perfect document. But don't believe any of it. The Constitution is massively, hopelessly flawed. To wit:

1. The Constitution is anti-democratic.

Consider the Senate. The Constitution requires that this body vote to approve a law before it can reach the president's desk. Each state gets two votes, even though states vary vastly in population; today, California has about 67 times the population of Wyoming, but the same two Senate seats.

Constitutional apologists justify this with a lot of piffle about how the Senate is supposed to be the "cooling saucer" against the hot-headed House of Representatives. (Historically, this meant "filibustering anti-lynching bills.") In reality, the Senate is the product of a bare-knuckled political power play by the smaller states as they existed in the 1780s. They wanted unfair over-representation as the price of joining the new nation, and they got it.

A decentralized government that delegates much authority to national sub-regions is one thing. But there is no possible justification for allowing certain depopulated states to wield dozens of times more influence than others over national policy due to the sheer coincidence of rapidly shifting population distribution.

The House is better, but not by much. The Constitution allows state legislatures to draw their own congressional district boundaries. (In this, America is virtually alone among democratic countries.) In many states, that means self-interested politicians drawing the lines that control their electoral destiny. Is it any surprise that cheating is rampant?

Today, Republicans have gerrymandered themselves a roughly 7-point handicap in the House. North Carolina Republicans cheated so badly it was rated "not only the worst state in the USA for unfair districting but the worst entity in the world ever analyzed by the Electoral Integrity Project."

Finally, the Electoral College. I've written about this before, so I won't belabor the point, but suffice it to say that a system that allows one candidate in a two-candidate national election to lose the popular vote by a 4-to-1 margin and still win is bad.

2. The Constitution's separation of powers is a boondoggle.

In a parliamentary democracy, the executive power is exercised by the winning coalition in the legislature. That's how it should work. In an American-style presidential democracy, the executive is elected separately. The idea here, as everyone learns in civics class, is to separate powers to protect the people from government tyranny, as each branch will guard its own power. This doesn't work at all, as we are all right now getting ground into our faces under President Trump.

The executive branch has become steadily more powerful basically since the moment the Constitution was implemented. Since FDR's day it's gotten much more marked, and in the 1970s scholars began to write about the "imperial presidency." This development is, in part, because of the separation of powers. A more complex and urbanized society means governance needs to be agile, and deliberative legislatures are not well suited for that at the best of times. On the contrary, increasing partisan polarization and a bicameral legislature has meant Congress is often helpless to do anything at all, so the executive has often stepped up to fill the void. Polarization has further eroded the logic of separation, as members of Congress look the other way when it's their party's president accumulating power. A hypertrophied executive is common around the world, but it's palpably much worse in presidential systems without their rooting in the legislature or the ability to call snap elections to resolve political deadlock.

Trump has already gone further than any president since Andrew Jackson, directing Customs and Border Patrol to disregard federal court orders, and reportedly even U.S. Marshals (the enforcement arm of the judiciary) too. But he builds on a long tradition of failure rooted in our janky founding document.

3. The Constitution is basically impossible to fix.

The Constitution is almost impossible to change, requiring a two-thirds vote in the House and Senate and ratification by three-quarters of states. (Or a constitutional convention, but that has never been tried). It has been amended many times, but the only ones that made really profound changes to the basic structure were the Reconstruction Amendments, which could not have happened outside the context of the Civil War and the occupation of the defeated Confederacy. The last amendment to even moderately change the fundamental structure of American government was passed in 1913 (the direct election of senators). So not only does the Constitution have a bad design, it can't realistically be fixed — and it's getting even harder as partisan polarization deepens and the consensus across so many states becomes further and further out of reach.

Now, none of this is to say that everything about the Constitution is bad. The Bill of Rights is pretty good, especially for its time (though for my money the South African version beats it handily). But the basic political mechanics the Constitution sets up are utterly stupid. Literally every other country that set up an American-style Constitution collapsed eventually. A proportional parliamentary system would be far superior.