America’s Fragile Constitution • Hacker News Board

Re: America’s Fragile Constitution

#41

Post by xlm1717 » Thu, Sep 17, 2015, 1:58 PM UTC

ckozlowski wrote: post #18

_petronius wrote: post #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…

>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 wa…

Agreed. That the Civil War happened does not make the Constitution as a whole fragile. After the Civil War occurred, they removed the three-fifths rule and took away it's major weakness.

>it's never been questioned since

It's often questioned today by asking whether we should follow a "legal document" (instead of the Law of the Land that guarantees our rights) from the 18th century (as _petronius did).

Re: America’s Fragile Constitution

#42

Post by ArkyBeagle » Thu, Sep 17, 2015, 2:02 PM UTC

_petronius wrote: post #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…

Originalism is a reaction to "activist" courts.

One can argue that with the passage of the 18th Amendment, the amendment process became a parody of itself.

The straw that broke the house of cards built to accommodate slavery was Manifest Destiny. You can't have both.

Re: America’s Fragile Constitution

#43

Post by xlm1717 » Thu, Sep 17, 2015, 2:18 PM UTC

_petronius wrote: post #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…

It's not a sign of the dysfunction of a system. It's the system functioning as designed.

In the history of the US, there have been only 27 amendments. Two of them cancel each other out, and 10 were introduced at the beginning, so that's 15 amendments over 226 years. We're 23 years away from the last amendment, only 8 years above the average. It's not "more impossible" now to pass an amendment than it was over the past century. Maybe more difficult, but not near impossible.

It's not even the longest time between amendments in the nation's history. After the Bill of Rights, amendments 11 and 12 were mainly to resolve procedural issues. It then took over 60 years for the next amendments to be passed, all in response to the Civil War, granting the freed slaves freedom, citizenship, and the right to vote.

After that, the amendments were mostly to resolve procedural disputes again, such as presidential term limits, how we elect senators, start of terms, and Congressional salaries. The major amendments after the Civil War all had to do with voting rights: for women, for those aged 18, and for those who couldn't afford a poll tax.

The one time we tried to use the Constitution for social change, it failed miserably. Prohibition resulted in a sharp increase in crime, didn't stop people from consuming alcohol anyway, and ultimately resulted in amendment 21 being ratified to repeal amendment 18 and end prohibition.

None of this points to dysfunction in the system to me.

People don't often forget that the Constitution contains methods for amendment. See: the Marriage Amendment that was floated around in the 90s, and people today saying we'll need a new amendment to limit the power of the super-PACs.

You linked to the National Popular Vote Interstate Compact. I'm sure if a future Congress sees this as a procedural issue pressing enough to bring up as an amendment, they will. Besides that, there is not much pressing at the moment that requires a Constitutional amendment. That an amendment has not been added in 23 years and one is unlikely to be added is not a sign of dysfunction of the system. It is simply business as usual, no new amendments needed at this time.

Re: America’s Fragile Constitution

#44

Post by ckozlowski » Thu, Sep 17, 2015, 2:22 PM UTC

dragontamer wrote: post #40

eli_gottlieb wrote: post #36

Earlier quoted context omitted.

Oh, sure, right. The Constitution can never fail us, we can only fail it. That surely doesn't sound like you're talking about a god /s.

The fundamental attribute of the Constitution is that it can change with the times. The Constitution has been "corrected" 27 times. There is nothing wrong with the US that cannot be fixed with what is right with the US. The Constitution is the same. If there are any flaws... then we can propose an Amendment and fix it.

"There is nothing wrong with the US that cannot be fixed with what is right with the US."

I really love that quote. (Bill Clinton, right?)

Re: America’s Fragile Constitution

#45

Post by bmelton » Thu, Sep 17, 2015, 2:24 PM UTC

crusso wrote: post #35

wtbob wrote: post #24

Earlier quoted context omitted.

> 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.

I'd agree with that if we had Congressional term limits to make Congress more answerable to the people. As it is, incumbency is way too powerful and is partly to blame for the dysfunction we're currently seeing.

At the end of the day, I think that making government more accountable to its people is more directly established by migrating more power to the states, and away from the federal government.

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.

Re: America’s Fragile Constitution

#46

Post by ameister14 » Thu, Sep 17, 2015, 2:25 PM UTC

Whoa, I wrote my thesis on this. Interesting to see their take on it.

The assertion that the framers didn't understand the flaws inherent in a mixed constitutional system is false; Madison wrote about it, actually. He also predicted the failure of the Constitution, but conceded that it was the best they could do and possibly the best that could have been done at the time - without a negative (essentially judicial review, but under the purview of the senate as well as the judiciary) he essentially foresaw a fracturing. Of course, we got Judicial review a few years later, but that's not in the Constitution and is, as a result, a more fragile power.

Re: America’s Fragile Constitution

#47

Post by _petronius » Thu, Sep 17, 2015, 2:45 PM UTC

xlm1717 wrote: post #43

_petronius wrote: post #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…

It's not a sign of the dysfunction of a system. It's the system functioning as designed. In the history of the US, there have been only 27 amendments. Two of them cancel each other out, and 10 were introduced at the beginning, so that's 15 amendments over 226 years. We're 23 years away from the last amendment, only 8 years above the average. It's not "more impossible" now to pass an amendment than it was over the pas…

> I'm sure if a future Congress sees this as a procedural issue pressing enough to bring up as an amendment

I think you are probably much more optimistic than I am about the current level of legislative deadlock in Congress. From where I'm sitting, I see a body so polarized in its politics that it has trouble passing budgets, much less dealing with modernizing federal election procedure.

The whole point of the Interstate Compact being a compact is that the advocates for it acknowledge that it couldn't be passed via the amendment mechanism because it would never be tabled in Congress -- but they do think they can convince enough states to go for it, which is the other half of the amendment process (although admittedly the mathematics are different, because they just need a majority of Electoral College votes, not 2/3 of states).

Re: America’s Fragile Constitution

#48

Post by npsimons » Thu, Sep 17, 2015, 2:57 PM UTC

ameister14 wrote: post #46

Whoa, I wrote my thesis on this. Interesting to see their take on it. The assertion that the framers didn't understand the flaws inherent in a mixed constitutional system is false; Madison wrote about it, actually. He also predicted the failure of the Constitution, but conceded that it was the best they could do and possibly the best that could have been done at the time - without a negative (essentially judicial rev…

I'm glad to see an expert come to the same conclusion that my amateur study of this subject has. The predicate in the first sentence in the article ("The Founders misread history") really rubbed me the wrong way, as I've heard so many people criticize the founders when they haven't even done a tenth of the study and research that the founders had. Perhaps they did misread history, but at least they read history, and lots of it. Hero/idol worship is not a good thing, but claiming the founders were ignorant and backwards is, quite frankly, ignorant and backwards. IMHO, anyone that wants to criticize them should be held to the same high standard that the founders held themselves to, ie, study history, lots of it.

Re: America’s Fragile Constitution

#49

Post by npsimons » Thu, Sep 17, 2015, 3:05 PM UTC

ckozlowski wrote: post #29

wtbob wrote: post #24

Earlier quoted context omitted.

> 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.

Well, the idea of Congress impeaching judges frankly terrifies me, and given that Congress holds up most executive appointments as it is, I'm not sure they could do much more damage there. 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…

> 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.

Re: America’s Fragile Constitution

#50

Post by scott_s » Thu, Sep 17, 2015, 3:08 PM UTC

InclinedPlane wrote: post #10

maxerize wrote: 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.

I felt the author made a good point related to this, that the current system, and the current belief in its self-corrections, may be a serious problem during deadlock:

"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.