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America’s Fragile Constitution

theatlantic.com

11–20 of 80 posts

Re: America’s Fragile Constitution

#11

The separation of powers seems to be our only saving grace at the moment. The notion that one style of government is appropriate for all peoples in all places seems absurd. The US constitution was written up by and for people in a particular place and situation and the tensions that existed then look to have escalated to the civil war and these tensions look to remain today. It's interesting to read the anti-federali…

Up to a point yes, but the politicization of the judiciary through elected judicial posts and other elected official posts such as election organisation and drawing of electoral boundaries introduce serious weaknesses into the system.

Re: America’s Fragile Constitution

#12
post #2

Fragile not for limiting the powers of government but for the tyranny it can enable. "it is likely to be well administered for a course of years, and can only end in Despotism" Benjamin Franklin

That specific line makes it sound like Franklin thought despotism would be a result of the Constitution. But the full quote makes it obvious that he thought very highly of the Constitution:

...this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution.... It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does... Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.[0]

He means that the Constitution will continue until no other form of government but despotism is possible, not that it leads to despotism.

Also note that despotism and tyranny are not exactly the same form of government (the main relevant difference is that despotism can be benevolent), and that the distinction would have been more significant in Franklin's time.[1] I think that a more modern phrasing would be something like:

...the Constitution will be administered well for a while, and will last until the country becomes so corrupt that only a despot could maintain order.

[0] http://www.usconstitution.net/franklin.html

[1] http://www.differencebetween.net/miscellaneous/politics/what...

edit: formatting

Re: America’s Fragile Constitution

#13

The separation of powers seems to be our only saving grace at the moment. The notion that one style of government is appropriate for all peoples in all places seems absurd. The US constitution was written up by and for people in a particular place and situation and the tensions that existed then look to have escalated to the civil war and these tensions look to remain today. It's interesting to read the anti-federali…

What we have is a triumvirate with hammer-paper-scissors powers. Triumvirates in history have tended to be stable governments over longer periods. I think the article makes a mistake in not mentioning the 3rd branch - the Judiciary.

I agree. The independent judiciary, in my opinion, is what has been largely responsible for the effectiveness of the U.S Government since it's inception. This concept of a body that can rule on the constitutionality of laws and acts was a revolutionary concept.

I want to take pains to emphasis that this is relative. Contemporary issues and criticisms aside (not to mention those raised in the article), it's a system that has served remarkably well, especially compared to its peers.

Re: America’s Fragile Constitution

#14
post #7

Earlier quoted context omitted.

The author is arguing precisely that the constitution should not be put on a pedestal, and that recent political deadlocks might be due to the constitution not being perfect, and not human error.

The fallacy here is that deadlocks are a bad thing, usually they are not. You don't want a slim majority being able to drive the government at a breakneck pace. When society is deadlocked, government should be too. You want action only when there is fairly broad agreement.

Exactly. While I'm sure they didn't mean "deadlock", delay was precisely what the framers had in mind. The emphasis on super-majorities and agreement between multiple bodies was designed to keep mob mentality from fundamentally changing the people's rights in the heat of the moment.

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.

Re: America’s Fragile Constitution

#15
> Even if we discount the failures of other presidential democracies, though, we should not dismiss the fact that the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile.

Not to mention the US descending into civil war itself (due to irresolvable conflicts over pro- and anti-slavery voting blocks in the federal government).

I think people often forget that the US Constitution explicitly contains mechanisms for its amendment and even wholesale replacement (by constitutional convention), precisely because it was acknowledged that it had to be open to revision as required. The fact that in the modern era constitutional amendments are near impossible and therefore have to be worked around[0], and the unlikeliness of a constitutional convention being called any time soon, is a sign of the dysfunction of the system.

I'd also argue that constitutional originalism is a very new concept, and treating an eighteenth century legal document like a sacred text seems ... rather odd.

[0]: https://en.wikipedia.org/wiki/National_Popular_Vote_Intersta...

Re: America’s Fragile Constitution

#16
post #9
post #4

There's nothing wrong with the American constitution. The problem is we don't follow it any more.

Ambiguous wording in some places; crazy electoral college method for elections that ensures a two-party system; and the fact that there have been over 20 things called amendments ... all suggest that there are things wrong with the American constitution. Does it mean it was a bad thing overall? No. But to say that there's nothing wrong with it is to say that nothing in it is stale - and regardless of your political l…

It was a product of it's time. And there were real reasons at the time for a number of those elements.

- 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_...

Re: America’s Fragile Constitution

#17
post #8
post #5

Good read, thanks! The argument is well established except that the author omitted one crucial factor, which is, US became the only super power in the world in recent two decades. At the time the Constitution was drafted, nobody in his/her wildest dream that US would become the dominant power in this solar system. With the existence of outer threaten, branches (or parties) were driven to cooperate for their very own…

I don't see why only recent times are indicative of this. America had few outside enemies in e.g. the 1920s, and yet the inner conflicts (Teapot Dome, Steel and Railroad strikes) during those years were nothing like our recent ones.

Maybe I should put it this way: US already reached its peak status, and it's very difficult to even find a way or area to "grow". In 1920s, although US became an economic super power, there were still plenty of room to grow in the area of international political system.

Re: America’s Fragile Constitution

#18

> Even if we discount the failures of other presidential democracies, though, we should not dismiss the fact that the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile. Not to mention the US descending into civil war itself (due to irresolvable conflicts over pro- and anti-slavery voting blocks in the federal government). I think people often forget that the US…

>we should not dismiss the fact that the U.S. Constitution was modeled on a system that collapsed into civil war, and that it is inherently fragile.

I don't see this so much as a issue with the modeling of the Constition, but the larger unresolved question of slavery in the United States. They largely "kicked the can" with that question in the Constitution with the "Three-Fifths" rule, but I'd argue that the scene was set for a clash regardless.

I might go a step further and say that the Constitutions wasn't fragile, but because it established a strong Federal system, it set the stage for the conflict to come because the Southern states would now be accountable to Federal law, whereas slavery might have persisted under the Articles.

In my opinion, did it have a hand in the war to come? Yes. Was it the cause? Far from it. The war settled not only slavery, but any lingering questions of the supremacy of that document, and it's never been questioned since.

Re: America’s Fragile Constitution

#19
post #9

Earlier quoted context omitted.

Ambiguous wording in some places; crazy electoral college method for elections that ensures a two-party system; and the fact that there have been over 20 things called amendments ... all suggest that there are things wrong with the American constitution. Does it mean it was a bad thing overall? No. But to say that there's nothing wrong with it is to say that nothing in it is stale - and regardless of your political l…

It was a product of it's time. And there were real reasons at the time for a number of those elements. - 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…

... I'm not sure how "it was a product of it's time" is an appropriate rebuttal to "bits of it are stale". I'm genuinely puzzled that you think I need a history lesson, given I characterised parts of it as stale, which I would have thought inherently included the concept "it was a product of it's time" - that things that were once fresh and relevant are no longer so.

Re: America’s Fragile Constitution

#20
post #5

Good read, thanks! The argument is well established except that the author omitted one crucial factor, which is, US became the only super power in the world in recent two decades. At the time the Constitution was drafted, nobody in his/her wildest dream that US would become the dominant power in this solar system. With the existence of outer threaten, branches (or parties) were driven to cooperate for their very own…

The US became the sole super power after WW2.

Soviet Russia from 1946-1990 was never a super power, it was in fact weaker in every objective respect than Russia has been the last ten years. Most of the image of it being a super power was propaganda that turned out to be completely false - namely that they had a powerful economy and global military projection ability. Nearly all of their economic output figures were fraudulent. That fraud became apparent with the collapse. This was a country that for 40 years couldn't even keep its grocery stores stocked properly.

On a subjective basis, for about 20 years the USSR seemed powerful, but only when compared militarily to Western Europe, Japan and China which had all been decimated. Compared to the US they were not.

By 1960-1965 West Germany's economy was already bigger than the USSR. By 1965, the US economy (possessing ~50% of all global manufacturing) was at least five times larger than the USSR economy.

From 1950-1990, the USSR's economy was highly isolated, low on innovation and weak, susceptible to constant threats of famine and shock (to say nothing of the things Stalin did domestically). You could see that both in their technology and products. The US post WW2 was a global export monster, highly connected, with a very inventive economy, to go with the global reserve currency. The US achieved by 1970 a median household income of about $45,000 (in 2014 dollars) - something nations are only beginning to catch up to now. Needless to say, the USSR median household income was a small fraction of that.

After WW2 the US had a truly global military position. It had North and South America almost exclusively as its sphere of influence. It had military bases in Japan and Germany. It had a system of global alliances spanning from Canada to the UK to France to Germany to Australia to Japan. The USSR had nothing even remotely like that, their few actual allies were weak and fragile.

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