The Nature of the US Constitution

Discussion in 'Politics, Religion, Social Issues' started by Lord Blackadder, Feb 17, 2011.

  1. Lord Blackadder macrumors G5

    Lord Blackadder

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    #1
    An interesting and brief comparison piece by an American writing for the BBC.

    Thoughts?
     
  2. mcrain macrumors 68000

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    #2
    Nice article. Thanks for the post. As for the big question, there is a lot of room for interpretation in the Constitution, but we also have 200+ years of Judicial interpretation that does a pretty good job of answering most questions. The people who run around pointing to the "original" meaning, seem to ignore that fact. In addition, laws passed by the legislature and signed by the executive are presumed Constitutional, and thus an additional layer of interpretation.

    It's a far more complicated issue than just "Thomas Jefferson said..."
     
  3. Lord Blackadder thread starter macrumors G5

    Lord Blackadder

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    #3
    Many Americans are convinced that the US constitution is the best blueprint for government ever created, that it can never be improved upon, and that changes can only mar its unique perfection - but is that judgement the result of exhaustive comparative study, or an act of blindly nationalistic bravado?
     
  4. Sydde macrumors 68020

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    #4
    For two-thirds of my adult life, I have thought the president was a total scumbag; the rest of the time, he was a decent-hearted jerk. I am just darn tired of waiting for things to get better. I do, to some extent, understand the need for leadership (the people are just plain stupid, parsimonious and short-sighted), but it sure is hard to see how one person could realistically serve as a blanket-issue leader for a third of a billion, or even, for that matter, a third of a million. It looks to me like the constitution was not written with the idea that it would last more than a few decades without complete revision, and if that is the case, what do we make of the people who have been desperately trying to hold it together? In a way, it has become a sort of security blanket that we use in order to avoid dealing with each other and the issues that trouble us. A nice piece of parchment to hide behind.
     
  5. Lord Blackadder thread starter macrumors G5

    Lord Blackadder

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    #5
    There is much wisdom in the old adage "if it ain't broke, don't fix it". We must not, however, overapply that wisdom so that innovation is always feared and resisted.

    The constitution is meant to protect the peoples' freedom to manage their own affairs. It was never intended as a political Bible, the alteration of which is to be deemed heresy.
     
  6. CalBoy macrumors 604

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    #6
    It is pure bravado.

    Empirically our system of government is very lacking. It encourages wild swings in legislation depending on who is in power, it essentially maintains 2 parties, and it leads to a god complex in many who attain some level of power (and I don't mean Obama-I mean certain senators and high ranking House members who can be in power for decades).

    I've said this before and I'll say it again: the best system of government, empirically, is a proportional representation unicameral parliament. Unfortunately, it would only work well if many states also followed the same model (otherwise the power of the two current parties would only be magnified by a parliament).

    Otherwise, not much really needs to change about the Constitution. We actually have a very solid list of guaranteed rights. The only trouble is that there is always somehow some force that is trying to convince people to give them up. That's exactly the kind of behavior that would change with a proportional representation parliament. The process would become less adversarial and more constructive. Legislation would be prone to less monied bias because many parties would be involved in the process rather than individual egos.
     
  7. Ugg, Feb 17, 2011
    Last edited: Feb 17, 2011

    Ugg macrumors 68000

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    #7
    I totally agree. Times change and a document written over 200 years ago can in no way address every issue we face. Sure, the amendment process exists, but in a polarized nation, what chance does any reasonable amendment have?

    One issue that is becoming huge is the population disparities between states. A handful of states make up more than half the US population but states like MT, AZ, WY, ND, etc, wield enormous amount of power in the senate.
     
  8. CalBoy macrumors 604

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    #8
    That issue has actually been prevalent since the beginning of the nation. At one point in time New York, Pennsylvania, and Virginia had nearly 50% of the population of the country between them, but yielded only 15% of the Senate's voting power.

    In today's state of affairs, roughly 11 or 12 states comprise about half of the US population and have 22-24% of the voting power.

    I don't think you can fundamentally solve the problem without completely overhauling the entire legislative process, and you would need at least 2 amendments to succeed because of Article 5's pesky requirement that state's can't be denied suffrage in the Senate without their consent.
     
  9. Tomorrow macrumors 604

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    #9
    It's neither - I chalk it up to naivete.

    The Constitution itself outlines how it can be changed, through the process of amendments. Its writers included this language knowing that the document would, or at least may, need revisions sometime down the line. For us to appropriately amend the Constitution is not only okay, it's called for.
     
  10. iStudentUK macrumors 65816

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    #10
    I'm currently studying constitutional law as a unit this year, it isn't always interesting, but some bits are!

    Early on we compared the UK, US, German and French constitutions (not the actual content per se, more the structure and type). If you look at the USA, France and Germany which all have written constitutions they were formed at a time of great change- War of Independence, French Revolution and WWII. Nothing has been quite so sudden in British history, so there has been no trigger to cause a constitution to be codified (the best time would have been following the English Civil War).

    The US having a codified constitution (which means written in a single document) has some obvious advantages. Clarity for one- everyone knows where the US constitution is. It is also certain, so there is no argument about what constitutes the constitution!

    On the other hand, the UK has an uncodified constitution (some people mistakenly think Britain does not have a constitution or that it is unwritten. In actual fact some of it is written in various places and some is unwritten). The advantages of this style is flexibility, one can add or remove different bits to move with the times.

    The strength of one system is the weakness of the other.

    There are some even greater differences between the UK and US systems that I think are much more important than whether or not it is written. The US has a 'legal constitution' which means the courts can check legislation and strike it out. So the courts act as the check on laws. The UK has a 'political constitution' as Parliament is considered supreme and it can make or unmake any law (we could ban smoking on the streets of Paris) and the courts cannot question this (although this has changed slightly since the Human Rights Act). So the public acts as the checking mechanism through their vote (or even revolt).

    There are some really interesting developments in constitutional law going on, but they get quite technical.
     
  11. Gelfin macrumors 68020

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    #11
    This is a great point, actually, because I think with a bit of scholarship we can identify of the goals the founders had in mind when authoring the Constitution, or in many cases the compromises that arose from conflicting goals, and examine in retrospect whether those goals were achieved by the document as written. In many cases they were not.

    In some cases the goals were unrealistic: the image has often been advanced of a servant representative who is called forth by acclaim of his fellow citizens to set aside his plow and represent them for a time, then return to obscurity. There was no way this was ever going to happen.

    In some cases the authors were not up to the task of creating a system that achieved the goal: The founders were not mathematicians, and they created an electoral system that is provably inadequate to the task of fair representation and actually causes the two-major-party limitation. We keep it only because politicians know how to exploit it.

    In some cases the goal is much more abstract: "checks and balances" is a valuable goal. A three-branch government with a bicameral legislature is not the only way, or even necessarily the best way, to achieve that goal. These days, though, we have people who venerate the process to the exclusion of the goals it was meant to enable.

    To my way of thinking, one major shortcoming of the United States Constitution is, apart from the preamble, which is too vague, the document contains no statement of goals, principles and a priori assumptions about what the government is meant to achieve, and in what ways the authors intended the government to serve the people, independent of mechanism. Instead it jumps directly into an outline of process, from which we often find ourselves forced to infer the intended principles.
     
  12. Blue Velvet Moderator emeritus

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    #12
    Interesting well-discussed thread... instead of the usual hyperventilating. Thanks for the read so far.
     
  13. Lord Blackadder thread starter macrumors G5

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    #13
    An optimist would say the purpose is and has been self-evident, a pessimist would suggest that the authors were never able to agree on anything and so avoided broader issues. Lawyers are often accused of being pedants, unable to tackle broad issues because they always get hung up on details. Most of the authors of the constitution were lawyers or had legal training...we seem to rely on the Declaration of Independence for language describing the purpose of our government. Language that is much more passionate but perhaps less useful than something designed specifically for the purpose.

    I think comparing various constitutions as iStudentUK is doing (whether in a formal classroom setting or on one's own) is very enlightening because it demonstrates that countries can achieve similar ends through different means. Of course, in order for such comparison to be fruitful one has to approach the exercise with an open mind.

    I don't see it changing any time soon either, because there is no way to change it unless the people who benefit from the loophole close it themselves.

    I feel this to be a critical part of the constitution, even if the implementation is perhaps imperfect. Building a reasonably effective system of "checks and balances" goes a very long way towards creating long-term stability for a nation. It is also one of the most visible mechanisms at work in our government.
     
  14. CalBoy macrumors 604

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    #14
    Through nearly 3 different levels of con law with 3 different professors, I've learned one thing: we just don't know conclusively what the drafters thought of most of the provisions of the Constitution.

    Just today our con law professor pointed out how Rufus King, one of the delegates in 1787, asked what the group meant by, " power to lay and collect taxes..." He wanted to know if a direct income tax would be permissible. According to Madison's notes, no one answered.

    Of course it bears keeping in mind that we've subverted a lot of the goals of the founders through the amendment process. Changing the nature of the Vice Presidency and allowing for the direct election of senators are two glaring examples. Both of these amendments have contributed to an increased importance for monied interests, and have strengthened the Presidency by making it more difficult to challenge the executive department as a whole.

    Indeed, this is one of the most obvious failings of the Constitution. The framers assumed that they would have a Congress full of Washingtons. The framers should have looked to Parliament in the 1780s as an example to see that such a model was not going to last long. Even by 1801, Congress was full of professional politicians who typically left office only because they had found more lucrative positions in their state legislatures or high courts.

    This very conflict served as the basis for so much contentious New Deal litigation, and we see a resurgence with the notion of "originalism."

    Personally I think the founders had no clue how to broach the other topics besides governmental mechanism. They couldn't even agree on the Bill of Rights or how the number of House members should be determined in the future. Maybe it's time we all publicly admit that the founders failed in this regard. It might get us beyond all the pointless nostalgia.

    Actually, we can circumvent Congress for amendments, it just hasn't been done.

    I think that if we can get over ourselves and our supposed divinely inspired form of government, this is the one thing we can change. No body likes Congress, and we could capture that sentiment for real change, if we can allow ourselves to use the authority we already have.

    I think it's a very attractive aspect of our Constitution, but there are better methods in aggregate. Our form of checks and balances tends to require very large majorities to get anything done, and when we do get something done, it's usually watered down and less effective than it needs to be. I think the founders might have been overly cautious with the sheer number of veto points they put into the Constitution.
     
  15. Sydde macrumors 68020

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    #15
    I will disagree with you on this point, provisionally. Bear in mind that the article that allows for amendment was not a matter of consensus - not everyone at the convention supported that idea. The idea behind the constitution was absolute minimalist codification: that the united states should form as a nation held together by people and by leaders, not by legal contract. Basically, the founders were saying, "We have been through a rough time here, and we have learned a bit from the mistakes of history, but we don't want to be mistaken for having unfailing wisdom, so here is this guide for running the country, based on the wisdom of men, those who stand among us and those who will follow. Because the wisdom of today may not make sense for what lies ahead, and only men, well checked and balanced men, will have what it takes to deal with the problems of their day."

    In a way, it is almost unfortunate that Article V was included. Statutory code ends up being subject to microscopic interpretation such that at times, brilliant legal minds are able to read a passage out to invert what the statute was originally intended to do. I have a hard time understanding how this happens and accepting that it is allowed to. This is a very serious flaw in our legal system, that mere language affords these loopholes, and that we seem to be powerless (or complicit) to prevent it from happening.

    So, as it stands, a nation of laws appears to be terribly flawed. Yet, history has also shown us the perils and shortcomings of a nation of leaders. I would suggest that, as with most complex issues involving humans and human interaction, the optimal design lies somewhere in between, or thereabouts.
     
  16. Lord Blackadder thread starter macrumors G5

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    #16
    The American revolution was initiated, funded, and directed by America's elite. Wealthy businessmen and politicians achieved the feat of decapitating their own political system (the British Empire), leaving themselves at the top of the heirarchy.

    The lot of the common man did not change much when going from British subject to American citizen. The Washingtonian landowners maintained their revenue streams (trade with the British never ceased, even during the war for independence, and it grew substantially afterwards), and tenants, renters and small-time farmers remained as they were.

    Looking at it through this perspective, we see the authors of the constitution as seeking to limit government for the purpose of preventing the formation of an aristocracy or monarchy, but the limitations on government were not necessarily intended to specially liberate your average citizen, though they did throw off a hereditary monarchy and removed many of the lingering trappings of feudalism (aristocratic titles, indentured servitude etc.). Wealthy businessmen and politicians in the new US gained control of government from even more wealthy businessmen and politicians in London, but middling and poor tenants still owed rent to wealthy landowners, and taxes and duties certainly did not disappear - nor did debtors prisons, at least not until well into the 19th century.
     
  17. 63dot macrumors 603

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    #17
    I think when people ignore the large body of judicial interpretations, concurrences, and dissents, it's almost always when they want to push a right wing agenda. They say, "See, that's what Jefferson or Adams meant!" when there's something they find from the past which sounds like it agrees with the current GOP platform.

    If the Constitution was that easy, then con law could be taught in one class meeting. ;)
     
  18. Sydde macrumors 68020

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    #18
    Curious. Where is the outspoken constitutional expert on this forum, the one whose avatar depicts the document in question? One would expect such a scholar to have at least some semblance of an opinion on this matter.
     
  19. skunk, Feb 18, 2011
    Last edited by a moderator: Feb 18, 2011

    skunk macrumors G4

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    #19
    Do US politicians do "gentlemanly"?

    Where you get the idea that anything is clear or certain in the American Constitution beats me. :confused:
     
  20. 184550 Guest

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    #20
    The lack of any constitution is the precise reason that the early settlers of the thirteen colonies left England and ultimately wrote the US constitution. Just saying...
     
  21. Lord Blackadder thread starter macrumors G5

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    #21
    I strongly disagree.

    16th or 17th century settlement of North America by the English is at best very indirectly related to the creation of the United States constitution. The writing of the constitution arose from the failure of the Articles of Confederation, which was itself deemed necessary after we successfully defended our independence from Great Britain with the help of the French. The revolution itself stemmed alrgely from dissatisfaction with the way the colonies were treated by London, but the lack of a written constitution was never at the top of the list of grievances.
     
  22. 184550 Guest

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    #22
    IMO, these would be considered short term causes. I'm thinking more about long term causes.

    In the mid to late 1700s when the US Constitution was written? Of course it wasn't.

    However, I would argue that instances in 1600s, and the time periods before and after the 1600s, like the Plymouth and Mass. Bay Colonies/ settlements, serve as excellent examples as to why certain freedoms (IMO, Plymouth and Mass. Bay would illustrate freedom of religion) are specifically named in the US constitution and also serve(s) as the reason why the US constitution is more specific.
     
  23. bobber205 macrumors 68020

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    #23
    I don't give a crap about the Constitution. Let's do what's right, ethically and pragmatically.

    The 2nd Amendment is woefully out of date for modern times. How anyone can interpret it to mean individual citizens should have ANY gun they want is beyond me.

    Stuff like that. The right likes to use "but but the Constitution!" when they want to stop something but almost never when they want to DO something.
     
  24. Sydde, Feb 18, 2011
    Last edited: Feb 18, 2011

    Sydde macrumors 68020

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    #24
    There may be some slight flaws in your rendering of history. According to the little new-testament-looking copy of the constitution my mother gave me, the Articles (also included therein) were drafted in 1777 and fully ratified by the states within 4 years. Each state, per its record, had adopted a state constitution with a strong legislature and weak executive not long after the war's onset. So, the need for codification of the government was believed to be important well before the completion if the war in '83.

    This would suggest the obvious, that this nation was founded primarily by a bunch of lawyers. That could be perceived as a good thing or a bad thing. Lawyers suck —but not my lawyer, he is a decent sort. And mcrain, he seems OK.
     
  25. Lord Blackadder thread starter macrumors G5

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    #25
    I never denied that there was a need for codified government - I was simply (and very briefly) tracing the history of the written constitution of the US. All city states in recorded history have had some body of law/legal precedent, some traditional basis of government even if there was no written constitution. As the article in the OP reminds us, countries like the UK continue to function without one.

    It's worth noting that a written constitution is not absolutely necessary.

    Those colonies operated along largely conventional lines, but with a marked theocratic influence. I don't think they had much influence on later systems of government in North America - although they have gained great symbolic status and are the subject of much debate, interpretation or misinterpretation.
     

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