The Consitution is Unworkable
I used to be a big fan of the Constitution - I thought it was a cool aspirational document. I even have a couple of paperback copies on my coffee table: one from the ACLU and one from the National Center for Constitutional Studies.
Why did I think it was good? I'm not exactly sure. Mostly because it's an unquestionable truth, a given, an unchallengeable and unchallenged veracity.
As I learned about the Constitution, I absorbed the conventional wisdom that you can't have a real democracy without a written Constitution. And it seems like a good idea: let's enshrine the ore tenets of a democracy in a short, concise, aspirational document.
I've been pissed off with British politics for a long time now, starting with the malevolent Maggie Thatcher, through the oleaginous Tony Blair on to the deceitful David Cameron, the faux sincere Theresa May and ending in the very worst position the narcistic proto-fascist Boris Johnson.
The public schoolboy yelling and jeering in the House of Commons - whilst entertaining - doesn't seem like the right way to run a democracy to me... and what do you know? Britain doesn't have a written constitution! In my political naivete and without really thinking about it I would trot out that line, suggesting that British democracy was flawed. And of course, it is flawed, but I don't think the existence or absence of a written Constitution has much to do with anything.
In terms of democracy, government, government agencies and the judiciary, Britain doesn't fair too badly, in fact, in many ways, it's actually better than the US system. It has issues for sure. For instance, the House of Lords is a fundamentally undemocratic institution but it mostly acts uncontroversially, adhering to sensible norms. The fact that the Queen is actually in charge of Parliament is just fucking insane to me - it's not exactly a solid bedrock for a democracy - although it doesn't have much real world impact. Nevertheless, we do have to go through the charade of the Queen opening parliament and the Prime Minister meeting with the reigning monarch. It's not a good look.
Having said that, the British system of government laid the foundations for democracies all over the world and the judicial system - whilst far from perfect - is probably the best in the world. The Magna Carta was the first document to enshrine personal rights and freedoms, notably Habeas Corpus: the right to a fair trial.
And furthermore, the American system is founded on many principles and structures taken from the British system. It should also not be forgotten that the American system was created by wealthy white men who came from British privilege.
But, back to the Constitution. On the face of it, it seems like it's absolutely the right idea: let's lay the foundational tenets for our democracy.
First of all, it has to map out the basic structure of government and that's really the easy part. In that regard, the Constitution is unambiguous. That's a good thing. It's also a bad thing, because it enshrines principles that are fundamentally undemocratic. The Electoral College for instance, which was hastily written in and seems to have been structured as an anti-democratic safety valve that could be used to override the will of the people should they try to elect a President who was too unsavory for the aristocracy. It's an absolutely ludicrous system.
It kinda sorta works despite being crazily structured, but it's not democratic. A lot of the inbuilt problems in the Constitution come from the desire and need to always be thinking about State's rights. Remember that they were constructing the framework for a United States from States who wanted to preserve their autonomy and self-determination. So the Founders were treading a fine line with a focus of creating a viable and acceptable union of the States.
And right here, there's a big problem: the autonomy of the States is kind of antithetical to a United States and the concept of a central government, but the Founders had to thread this needle to make it all work.
You've got to be mindful of the fact that before there was a United States, with adoring masses chanting USA at every conceivable opportunity and waving flags, there was no United States to chant about, so it had to be a good sales pitch.
Hence the Electoral College gave the States the ability to call their own presidential elections as they saw fit. Subsequently, they set down rules in their own Constitutions as to how their electoral votes would be decided. But it's not a good system further to it being undemocratic. Republicans lost the popular vote in 2000 and 2016 but secured the presidency.
The bigger issue is that the system is weak and leaves the door open for abuse - as we are now witnessing. People laughed at the idea of creating alternative slates of electors because it was manifestly illegal. They did it anyway. They almost got wat with it. If Pence had rejected the votes, they would have got away with it. Many pundits suggested that if the VP tried that, the Sergeant-at-Arms would leap up and lead him away in cuffs. But that would never happen. Why? Because half the Senate was complicit, or prepared to be. With half the Senate yelling that this was legitimate, the SOM, who is no Constitutional expert, would have done nothing and the election would have been stayed. Once that happened the nervous State Secretaries of State would quite possibly have acquiesced knowing that the coup could now succeed.
But what about the rest of the Constitution? It strives to be concise, aspirational and to be as generic and all-encompassing as it can be. The idea being that unless it explicitly references a specific scenario then the broad brushstrokes and aspirations of the document apply. The needle is intended to lean towards personal freedoms and the rights of the people.
But - and it's a major but - the Constitution does not enshrine any rights for women. You could say that it doesn't need to because clearly women have the same rights a men, but at the time, they most assuredly didn't. So the Constitution was implicitly misogynist.
Slaves were considered to be 3/5 of a person. That is correctly lambasted by most people. How can you consider a human being to be 3/5 of a person? Wrong! They were in fact considered to be 0/5 of a person. They had zero rights. The 3/5 was simply so that their owners could leverage their slave ownership to garner them more influence in Congress. It was more egregious than treating slaves as 0/5 of a person.
How about the Second Amendment? The Constitution does include any unnecessary verbiage. The clause about the militia is not just padding. At the time there was no standing army. National security was important and the only resources available were the State militias where every able man between 18 and 46 was required to sign up. That context is long gone. State militias have long since disappeared and we now have a National Guard to fulfill that function. The weapons are stored securely and the NG don't take them home with them, yet the statute remains.
To my mind, this highlights the failure and inoperability of the Constitution as a guiding star. Think of all the wasted breath on interpreting what the Founders really meant by the Second Amendment. What if we just had laws that we could repeal or refine without all this fucking nonsense about what the Founders really meant. And I'll add to that by saying that conservative justices really don't care about what the original meaning was.
They talk all this shit about textualism, originalism, purism and so on and it's just fucking word games. The reality is that the Constitution can be twisted like a pretzel by partisan actors who don't give a shit about what it really means.
The difference is that Democrats lean towards individual freedoms and rights and conservatives (I'm being generous here) lean heavily to corporate rights and the rights of their wealthy donors. One side is essentially working ethically and the other is working out of self-interest.
And please be aware that the Justices basically answer to no one. For instance, Justice Thomas did not recuse himself on a case where his wife was implicated and there are no rules to make him do so, nor is there anyone, not even Chief Justice Roberts (conveniently) who can make him do so.
The qualifications to be a Supreme Court Justice are zero. There's no age minimum, no required experience, no seniority level - you don't even need a law degree. To date, every Justice has been trained in law and has had a law degree (they don't want to be too open about their RW activism) and some experience on the Federal bench but Amy Coney Barrett, who is the least qualified Justice ever, has never tried a case in court and was likely given a position on the Federal appeals court simply to prime her for an SC seat a few years later.
So, here's the biggest problem of all: the Justices are partisan appointees with tenure for life and they know that they can make up shit and twist the Constitution to mean whatever they want it to. They hide behind their originalism and textualism, which is all just nonsense, they don't don't even have to believe their own arguments - it's a case of the ends justifies the means.
Yes, the Constitution can be amended but it's very hard to do. Ultimately, any amendment needs to be ratified by three-quarters of the State legislatures. It's highly unlikely to happen ever again while the GQP exists in anything like its current form.
Let's look a few more failings of the Constitution. Let's go back to State's rights. As I said this is kind of antithetical to the notion of a fully united States. We are somehow separate and independent while pretending to be united. But more than that, look at the huge discrepancy that the States create within a putative democracy. Every State has 2 Senators with equal power and influence. California has 40 million residents and Wyoming with a mere 585 thousand. This is not a fair representation by any stretch. In addition, we had the situation where North and South Dakota were created separately, with a current combined population of just 1.5 million just to secure another 2 senators in red states. It's a scam.
Nationwide, Dems required 1.6 times the votes of Republicans to secure the same number of seats. The best democracy in the world? Hardly.
On the surface, a Constitution looks like a good idea, but how do you enforce it fairly, how do get over the huge hurdle of amending it when it becomes murky, out of date or totally disconnected from the current reality? Certainly not when administered by unelected, partisan, under-qualified, under-experienced justices (Robert, Alito, Gorsuch, Barrett and Thomas), with lifetime appointements.
The assumption was that they would be completely impartial and would simply do their best to interpret the document. That is a badly flawed assumption. And even if it were true - would this be a good mechanism? I don't think so.
Let's just legislate and draft laws that are unambiguous. Yes, that does mean that a fascist government could draft whatever laws they want, but they'll do that anyway, regardless of the Constitution and we may be about to find that out.
In summary, the Constitution makes people feel good about adhering to a coherent set of principles but in reality it's not worth he paper it's printed on.
