The US constitution is stuck in beta
Of course the constitution is supposed to be a living document, but once you release beta code to production it’s very difficult to fix.
Presidential pardons are a bug in the constitution — a holdover from kings.
The constitution not putting limits on campaign donations is a bug; one that the state of South Australia is trying to fix through legislation.
The construction of the Supreme Court is more than a bug; it’s a structural problem. In software parlance it’s “working as designed”, but bad design:
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court...
Then the serving for life comes from pre-democratic British tradition. Even an ancient Greek boule has at least 400 people serving for one year, and in democracies were chosen by lot. Nine justices appointed for life via politics is absurd and was the result of constitutional writers that never planned for a federal government having any real power.
They did come up with the Tenth Amendment in an attempt to paper over the beta constitution’s obvious flaws:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
Don’t worry folks — we will keep powerful states and so we don’t have to worry about the crappy job we did defining the federal government. Of course even in 1789 the idea that a state was sovereign was ridiculous. The constitution has already specified that only congress could coin money.
Under a beta constitution most personal fundamental rights are at the behest of nine people appointed by a political process for life:
In 1967, Loving v. Virginia resulted in a nation-altering victory in which the Supreme Court ruled that laws prohibiting interracial marriages were unconstitutional. Just four years prior, the Supreme Court ruled, on the basis of the Fifth and Sixth Amendments, that states are required to provide an attorney to defendants who can’t afford one in criminal cases. In 1973, the Supreme Court turned to the Fourteenth Amendment in Roe v. Wade to support the right to privacy in a woman’s personal decision to have an abortion. This same Amendment came to the forefront over four decades later when the Supreme Court decided that due to the Equal Protection and Due Process Clauses, same-sex couples were to be guaranteed the fundamental right to marry. It is no surprise that this same Amendment also played a huge part in the outcome of Brown V. Board of Education of Topeka in 1954, again supporting equal protection that is to be guaranteed by the Fourteenth Amendment.
That even includes the right to democracy itself as was decided with campaign donations in Citizens United v. FEC. Since the justices are not chosen by lot and serve for life, waiting for politics to appoint a majority of them willing to restore the right to democracy could be a long wait.
Under a beta constitution we effectively are waiting for an Elon Musk level oligarch that’s willing to pay taxes. Again that will be a long wait.
Any country that wants personal fundamental rights has to put them into the constitution as France recently did for abortion. The right to democracy in America ended on January 21, 2010. What we have now is the same as abortion rights in America, democracy dependent on the state you live in, your class, and luck.
And again US states are not sovereign. Even the richest state cannot coin money and so, ultimately, is dependent on the federal government for much of its finances. Nor can a state effectively regulate national corporations. For instance Tesla is incorporated in Delaware in an attempt to avoid California regulation.
That brings us to the EU where member states are sovereign
The ECB is directly governed by European Union law. Its capital stock, worth €11 billion, is owned by all 27 central banks of the EU member states as shareholders. The initial capital allocation key was determined in 1998 on the basis of the states’ population and GDP, but the capital key has been readjusted since.
since they do have a say in their currency. That’s certainly a more sophisticated attempt since a Musk would have to capture more than a single politician to control the EU.
However, to guarantee inalienable rights EU citizens still must fix their own country’s constitution. For instance some German Nazi abortion laws were not repealed until 2022.
One factor that holds up such reform is the near universal propaganda that poor constitutional software mostly affects “minorities”. This propaganda goes as far as teaching that it’s all zero sum and fixing the constitution means the majority will lose privilege.
Here’s Alan Jenkins, perhaps unwittingly, reaffirming some of this propaganda:
Our original Constitution was both brilliant and highly flawed. It brilliantly articulated the idea of fundamental equality — human equality. It beautifully articulated the notion that government’s power flows from the people, and that government serves the people. But it was fundamentally flawed in preserving and propping up slavery, that ultimate form of inequality. And for excluding women, non-white people, indigenous people, non-property owners, from the definition of “the people.” From a racial justice standpoint, it was highly flawed, moreover, because it explicitly provided for the return of people who had escaped from slavery.
The Constitution has been amended, and in my view, improved over time through those amendments, but we are still living with some of those fundamental contradictions of our original Constitution.
No the Supreme Court not only didn’t stop gilded age excesses leading to the Great Depression that crushed way more than minorities, it even tried to block FDR’s New Deal until the threat of court packing:
Three weeks after the radio address, the Supreme Court published an opinion upholding a Washington state minimum wage law in West Coast Hotel Co. v. Parrish. The 5–4 ruling was the result of the apparently sudden jurisprudential shift by Associate Justice Owen Roberts, who joined with the wing of the bench supportive to the New Deal legislation. Since Roberts had previously ruled against most New Deal legislation, his support here was seen as a result of the political pressure the president was exerting on the court.
Increasingly this will be a problem for courts lower than the Supreme Court as well as this 2024 case gives them even more leeway:
In a world without Chevron, one would expect judges to find it harder to separate their judging from their politics.
The pretense that courts are not both powerful and political is at the heart of beta constitutional issues. Supposedly judges expertise is in the “law” and therefore they are allowed to make “technical” decisions.
This is the same fake unbiased expert nonsense that was debunked for the federal reserve and austerity. This is not to say that a supreme court cannot stand up for little people as Portugal’s court did in its debt crisis. It’s just that having unelected officials make political decisions is not how a mature system handles things.
As Roe v. Wade showed whatever the court giveth it can also taketh. Alternatively, since the court has no enforcement mechanism, it’s decisions can end up only partially enacted:
More than a third of students attend schools where 75% or more of those in attendance are of a single race or ethnicity, according to the U.S. Government Accountability Office’s most recent investigation into K-12 education.
The problem of beta constitution is neither unique to the United States nor even to constitutions drafted long ago. For instance article 77 of the 1987 revised South Korean constitution:
When it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency, the President may proclaim martial law under the conditions as prescribed by Act.
When a South Korean president declared martial law in 2024, he was impeached but the real question is why on earth was he granted that power.
If we consider constitutions analogous to software then the entire usual endeavor of creating and maintaining one is naive. The idea seems to be that a constitution can outline main points and leave the details to be filled in by law makers, courts, and the deep state.
However not even the “checks and balances” are properly coded. The level of detail a typical constitution provides for is nowhere near enough. Is the EU’s Treaty of Lisbon or other modern constitution different? — hard to say.
The rise of presidential power is a result of the constitution not sufficiently coding the office and the checks on it. Total control of the military and the ever increasing power of executive orders could have been avoided.
For instance something like the War Powers Resolution could have been in the constitution instead of law and perhaps including that the military acting, in any situation, without congressional approval is treason.
The Supreme Court in J. W. Hampton, Jr. & Co. v. United States (1928) confirmed the ability of Congress to delegate tariff powers to the executive branch. Again in a properly coded checks and balances the constitution would forbid “delegating” as obviously unconstitutional.
It’s unclear what purpose the executive branch actually serves in checking congress as it just seems like democracy itself is being checked. However its really clear what purpose congress serves in checking the executive because otherwise you have a king.
Besides not granting pardon power, the constitution should have spelled out that the president is not above the law and thus prevented a Supreme Court ruling that says he is. The constitution needs to spell out how Supreme Court decisions against the executive branch are enforced.
Having a beta constitution means that the US government operating system has fallen behind the rest of the world — constitutional scholar Richard Albert says:
The U.S. Constitution is anomalous in a bunch of ways. I think the most prominent way in which it’s anomalous is in its amendment difficulty. I think it’s the world’s most difficult constitution to amend today. And there are a lot of reasons why, but that’s one factor that makes it just stand apart from the world’s other constitutions. Another point of interest about the U.S. Constitution is that it contains so few rights compared to other world constitutions that have been written in the last half century. That’s a second point of difference.
And a third is about the evolution of the Constitution and its status around the world. It used to be the standard, the one that everyone looked to for what to put in their constitution, how to separate their own powers. No longer. And so the U.S. Constitution’s influence has really declined from the founding to the present moment.
Albert also says:
So Congress has passed what scholars have called super statutes. Statutes that have quasi constitutional status that were enacted by the U.S. because they couldn’t do the same by amendment. Bruce Ackerman uses the Civil Rights Act as an example of what he calls a landmark statute, what Bill Eskridge and John Ferejohn call a super statute. They have constitutional effect.
Fixing the constitution through super statutes is America’s best hope for getting out of beta.