# The US constitution is stuck in beta (Part 2 of 2) Date: 2025-02-11 Previous Part: https://disrael.github.io/blogs/raw/the-us-constitution-is-stuck-in-beta.part1.md --- > 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](https://medium.com/@disrael/i-lost-my-hat-and-sunglasses-why-the-rich-should-call-off-jerome-powell-d00ce4365c16) 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](https://www.reuters.com/article/economy/portugal-s-supreme-court-knocks-down-austerity-measures-idUSKBN0EB0DN/). 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](https://www.gao.gov/products/gao-22-104737) 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](https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12007L/TXT) 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](https://en.wikipedia.org/wiki/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*](https://supreme.justia.com/cases/federal/us/276/394/case.html) (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](https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf) 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](https://www.lawfaremedia.org/article/lawfare-daily--richard-albert-on-constitutional-resilience-amid-political-tumult) 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.