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A discussion on the flaws of the constitution

One in a series of articles. You can read the whole series here. Pop open the champagne bottles. The last installment ended with a discussion of the never-actually-utilized provision of the Constitution that allows for a new constitutional convention to be assembled, upon the petition of two-thirds of the state legislatures, to propose amendments.

Such a convention could, as the Philadelphia convention did in 1787, exceed its mandate and propose major changes or, if they really went rogue, a whole new document.

Bottom line: Here’s the biggest problem with the Constitution

You should know that a far deeper constitutional thinker than myself, Professor Sanford Levinson of the University of Texas Law School, wrote in 2006 a book-length argument asking readers to join a movement for a new convention along those lines. The Framers held many attitudes that, ripped out of historical context, are an assault on modern sensibilities.

The slavery stuff is probably the worst although some of the framers were anti-slavery. As for democracy, they believed that a bit of it — basically the popular election of members of the House — was necessary and good.

But all other officials of the new national government they designed were to be responsible only indirectly to the governed, with one or more layers of respectable gentlemen standing between the average white, male voter and power.

And anyway, slavery is long gone. Blacks and women can now vote. Senators are now directly elected. All of these improvements were made possible under the amendment procedures that the Framers built in. The president is still chosen by the absurdly complex and technically indirect device of the Electoral College.

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Because this was a presidential election year, I devoted several installments to the vagaries of the Electoral College. I would certainly vote to do away with it. But it is hardly the biggest problem our nation faces.

Too many veto points. The House can veto the Senate and vice versa. They are elected on different schedules and represent different populations in the sense that senators represent states of varying sizes, congressmen represent gerrymandered districts of equal size.

  • You can read the whole series here;
  • Such a convention could, as the Philadelphia convention did in 1787, exceed its mandate and propose major changes or, if they really went rogue, a whole new document;
  • Governors would appoint replacements to those who were killed probably within a day if there was an emergency;
  • The residents of the District shall vote in Maryland Senatorial elections;
  • And yes, the Constitution does structure it so that voters choose the foreign policy chief -- a clear mistake, since it will take professionals to know who is actually the best person to handle this tough responsibility;
  • Constitutional critics have proposed various fixes.

And their willingness to compromise seems to have shrunk. But the Constitution provides no method of breaking the impasse as other systems of government generally do.

Essay:Problems with the current US Constitution

If we did have a chance to consider structural changes in our system of government, I suspect we would try to build in some new ways to overcome such standoffs. You can argue if you like that the Framers wisely wanted to make it hard to pass laws because that government is best that governs least. Some on the right may believe that a government unable to do much is a good thing and what the Framers intended.

The same argument often extends to the idea that the federal government already does a great deal more than the Framers ever intended. There are at least four problems with this line of argument, one historical, one legal, one political and one practical: If we interpret the Framers in the context of their own time, the system they designed was actually far more powerful and capable of action than the one under the Articles of Confederation, which the Constitution replaced.

The Framers were the big federal government guys of their time. It would be the only intellectually honest thing to do. But it would also be political suicide.

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The Framers saw a nation sheltered on one side by an ocean and on the other side by a vast wilderness, not a world of jets and intercontinental ballistic missiles.

They understood that the United States would be at peace or at war, not a nation in perpetual military semi-war action. Their assumptions were reasonable at the time and their scheme may have been a pretty good one for the world as they understood it. It has little to do with the reality of the United States as a modern, global superpower. To function in that new reality, the United States has pretty much had to ignore the constitutional plan, while pretending to respect it.

But wait, the opportunities for inaction are just beginning.

If the two houses manage to agree on something, they can be vetoed by the president, elected on still another basis. But we are always just an election away from having as Minnesota did for the past two years an executive from a party that controls neither house, which makes the veto all of a sudden a major choke point, especially in an era of few compromises.

In the absence of a veto-proof majority in both houses, there is no structural guarantee of getting around that form of the deadlock. If the president and the Congress manage to get together to enact and sign a law, they can be vetoed by the Supreme Court.

As the keeper of the Constitution, the court or any five of its nine justices imposes an often highly debatable interpretation of the Constitution in such a way that it has the effect of vetoing or sometimes just amending a law that has been passed by the Congress and signed by the president who has, himself, taken a vow to uphold the Constitution.

There is something fundamentally weird and anachronistic about a 21st century democracy turning to the most undemocratic, unaccountable branch of the federal government to answer our most troubling policy questions.

On top of that, we are asked to accept and believe that the court will find those answers by studying words written by 18th-century men and divining how they the 18th-century guys intended for us to deal with situations that they had, basically, no ability to imagine.