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Does the US need a new constitution ?

by oldfrog Sat Nov 18th, 2006 at 08:21:57 PM EST


Published on Friday, November 17, 2006 by the Boston Globe  
A Re-Look-See at the Constitution  
by Bill Maher

There's no out-of-the-box thinking in this country. If we were really looking for a new direction, we'd not just change Congress, we'd have another Constitutional Convention, as Jefferson suggested we do. Jefferson said: "Let us provide in our Constitution for its revision. . . every 19 or 20 years. . . so that it may be handed on, with periodical repairs, from generation to generation." He himself was saying, "I'm a bright guy, but even I can't foresee the iPod." Or the assault rifle.

But that's Jefferson's phrase: periodical repairs. This thing needs periodical repairs, but it hasn't been in the shop for 219 years. Of course it's belching oil. Literally. And that's because one of the glaring flaws a Constitutional Convention might correct is something called corporate personhood, which means somewhere along the way, stupid or corrupted courts gave corporations all the rights of individuals, with none of the liability. If some person defecates on your lawn, we throw him in jail, but if a corporation does it, they get a tax break. Somehow "we the people" got to be defined as Halliburton. This thing needs to go in the shop!

And I know traditionalists are saying, "But Bill, it's a sacred document!" Please, it's full of crap about pirates, for God's sake. And I don't mean the kind that copies Justin Timberlake CDs. I mean peg legs and parrots. "The founders were so brilliant." Yes, they were: the proof being, the government they designed keeps functioning even with cement-head doofuses like you in it.

Listen to Jefferson -- he was saying, "We're smart guys, we're not Nostradamus." We deal with things today no founding father could have imagined -- the Internet, global warming. Toilet paper, instead of bark. If Ben Franklin got beamed in to visit us today, the first thing he'd say is, "For 17 dollars, I get porn on my TV all day? How can the hotel afford that?" And then he'd say, "You're still using the old Constitution that we told you to revise? That's so nuts hemp must still be legal."

 http://www.commondreams.org/views06/1117-32.htm

I find the above thoughts very refreshing. I have read similar thoughts in other places, but they are mostly uncommon. Having been blogging on Democratic Undergound (which I left for their incredibly pro-Israel bias) I have tried to raise the question but have been mostly flamed. Obviously for most progressive Americans, the Constitution is holy ground and the approach... religious. In a certain way it leads to something profoundly undemocratic, kind of a "secular theocracy" where a ultimately a group of 9 high priests decide what is politically correct or not.

The issue is important in France, plenty of forces want a 6th Republic, that is to say a new constitution where more modern democratic rules can be applied. So far only the UDF has been seriously on that way, since Montebourg had to put his plans aside in his backing of Ségolène. Which is intresting is that often the US constitution is taken as an example for a new French one...


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Talk about disruptive concepts! This one is great.

You can't be me, I'm taken
by Sven Triloqvist on Sun Nov 19th, 2006 at 03:15:16 AM EST
The US constitution has only one serious structural flaw, the design of the US Senate.

When it was ratified the disparity in the populations of the various states was not as great as at present. California has 36,000,000 people while Wyoming 500,000. This is an 18:1 ratio. Both get two senators. The cumulative effect is that 16% of the population controls 50% of the votes in the senate. All these 25 states (with two exceptions, Rhode Island and Delaware, are mainly rural and sparsely populated. The effect has been for them to support farm and mineral extraction interests over urban ones and to retard the growth of modern social programs. Since these smaller states like the power they wield there is absolutely no chance of anything be done to change things.

As for France, it seems to me that there must be fundamental disagreements in the way people view the role of government going back to 1789. Those in power try to solve the lack of consensus by tinkering the the structure of government. This does nothing to satisfy those who are out of power when the changes are made. Perhaps another case where the problems of the central government are essentially un-fixable.


Policies not Politics
---- Daily Landscape

by rdf (robert.feinman@gmail.com) on Sun Nov 19th, 2006 at 09:20:11 AM EST
Its a flaw in the design of US States. California is too big. Texas is too big. New York is too big.

And undoing the Great Compromise and handing effective control over those resources to urban populations is no sure guarantee of conservation of those resources.


I've been accused of being a Marxist, yet while Harpo's my favourite, it's Groucho I'm always quoting. Odd, that.

by BruceMcF (agila61 at netscape dot net) on Sun Nov 19th, 2006 at 02:22:31 PM EST
[ Parent ]
Going back to the beginning, it can be argued that many parts of the American Constitution - regarded by Americans with a reverence usually reserved for scripture and a document that is close to impossible to change in any meaningful way - are seriously flawed and promote neither responsible government nor democratic principles. The right-wing commentator and think-tank crowd always play up to the quasi-religious notion that the Constitution is the most perfect political document ever conceived. A disgraced, crooked, nasty right-wing politician, Tom DeLay of Texas, always bragged of having a copy folded in his pocket, almost like a priest carrying a bottle of holy water.

The Constitution's flaws leave little optimism for substantial political and policy change in the United States. It's as though all important political institutions were trapped in amber. Without changing the Constitution's flaws, it is hard to see how America's destructive policies at home and abroad can be altered. There are many such flaws, but I'll mention just a few.

One is the Electoral College. Many Americans do not understand that their vote for president technically does not count. The Electoral College, besides being remarkably anti-democratic, promotes corruption in elections with its winner-take-all provision in states. It is amazing that a country more than two centuries old and making great claims for democracy still can't hold honest national elections, both of George Bush's victories, but especially the first, being as dubious as something in an emerging nation.

.......

The designation of the President as commander-in-chief has proved an unfortunate provision with effects the founders never foresaw. Many Americans do not realize that it was the Parliament of Great Britain against which the early Patriots railed. They saw the British Parliament as acting without the beneficent King's full knowledge, understanding fully that the King's powers were already heavily curtailed by the evolution of British parliamentary government. The idea of the King as tyrant was built up later during the Revolutionary War as a propaganda device, and it has been played on by elementary text books since.

http://www.counterpunch.org/chuckman09162006.html

my approach to this is pretty much the same than the authors above : you cannot have a document "established forever" that rules the "perfect" society model.

If it was so morons of the Bush type would be stopped at an early stage. And probably not in the future either. In the current situation "impeachment is not on the table" and you find yourself in the situation where a quasi dictator is OK but not oral games in the oval office as Doonesbury pictures it :

Another aspect is the role of the Supreme Court, which I think is unique in Western democracies. From previous studies on the matter I understand that already in the thirties FDR understood the negative role of the Supreme Court and tried to go around it. The debate at that time was packed (pun intended) of cartoons from Republican papers where FDR was portrayed attacking the Constitution. But his new approach created a pro-democrat court which resulted later in major overturns in US policies, specially in the after-war period like the Roe vs Wade story and the end of segregation. What I understand of that is that it created a "holiness" feeling among Dems which didn't understood that the system could be exactly used against them as Bush did these last years.

Ted Kennedy's address during the Alito nomination hearings was very clear : the Supreme Court rules what's most important for the US that's why only neat guys need to be appointed. But it's not my idea of democracy.

Regarding France, history has been different, probably because our "founding fathers" never sat in government, Lafayette never became the first president and because France had powerful enemies at its frontiers which the US didn't (it was rather the contrary). So democracy in France had its back and forth but it can be said that it prevailed since the foundation of the IIId Republic, with the exception of the Vichy years.

While the previous systems were more of parliamentary type, the Vth Republic is a semi-presidential system. It has shown its limits and it's probable that a future President will make changes to the constitution through a referendum and more balance will be given towards more parliamentary power. Another point is to strengthen the independence of the Judicial power in France.

I think it is a sound process, much more sound than constitution-thumping. But obviously it's very difficult to get acceptance for this idea in the US, as much it is difficult to make French unions understand that the "Code du Travail" could be revised...

by oldfrog on Sun Nov 19th, 2006 at 04:50:45 PM EST
[ Parent ]
The Electoral College, besides being remarkably anti-democratic, promotes corruption in elections with its winner-take-all provision in states.

The writer of that piece on counterpunch doesn't even know this bit of the constitution well enough. There is nothing in the constitution requiring the electors to be allocated on a winner-take-all manner, as it is left entirely up to each State's election laws. It would be entirely possible for one elector to be given to each congressional (House) district and two electors apportioned on the state-wide result, which would be consistent with the spirit of the constitutional requirement that there be one elector per congressman (representatives and senators). It could even be done as a mixed-member proportional system (with two additional seats per state and no overhang seats) while retaining consistency with the constitution.

In fact, there are at two states (Nebraska and Maine) which do not use the winner-take-all method.

The "Maine Method" is a mixture of the district and statewide / short ballot modes of selection. It has this name because it was adopted by Maine for the 1972 presidential election and remains in place. Nebraska has used the Maine Method for presidential elections beginning in 1996.

In the Maine Method, the votes for president are summed for each congressional district. The party winning each district elects one Presidential Elector. Then the vote is summed for the entire state. The party winning the statewide vote elects two Presidential Electors.

The Maine Method is actually very old. It was first used by Massachusetts, which used it in the elections of 1804, 1812, and 1820. After Maine split off from Massachusetts in 1820, it used this method through the election of 1828, then abandoned it for 144 years before returning to it for the election of 1972.

In the 18 state contests in which this method has been used, only once has it achieved a result different from winner-take-all: in Maine, in 1828, 1 of Maine's 9 electoral votes went to Andrew Jackson.



Those whom the Gods wish to destroy They first make mad. -- Euripides
by Migeru (migeru at eurotrib dot com) on Sun Nov 19th, 2006 at 05:09:02 PM EST
[ Parent ]
The problem with the heavily weighted voice of the smaller states is a real problem.  Do you think this recent mid-term election demonstrates that it is not insurmountable?  Certainly smaller states are not likely to be willing to give up that relative power they have.  
by jjellin on Sun Nov 19th, 2006 at 09:41:40 PM EST
[ Parent ]
Given the nature of political discourse in the US over the last 10 years, a new constitution would probably just end up re-enforcing some of the worst interpretations of the current one, while weakening some of the best.
by det on Sun Nov 19th, 2006 at 11:03:06 AM EST
Indeed ... the reasons we need a new Constitution are the very reasons that would corrupt an effort to reform the constitution.

And, indeed, the primary issue that Bill Maher raises, the argument that the equal protection clause extends to fictitious perons, is the precise kind of misinterpretation of the present Constitution that is highly likely to be written into any new Constitution.


I've been accused of being a Marxist, yet while Harpo's my favourite, it's Groucho I'm always quoting. Odd, that.

by BruceMcF (agila61 at netscape dot net) on Sun Nov 19th, 2006 at 02:14:57 PM EST
[ Parent ]
Sad to say I agree with you that it could end up worse, however, it really does need updating and clarifying, so that no monster abuses power again.

Just in the past 6 years the public may have developed a "fear" of asking for any changes seeing how badly all legal concepts have been diluted or even deleted.

Our knowledge has surpassed our wisdom. -Charu Saxena.

by metavision on Sun Nov 19th, 2006 at 02:37:10 PM EST
[ Parent ]
Yes, I'm afraid you're right. I'd still like to see thought given to what a better constitution would be like. One line of thought starts with comparative politics, and asks what has worked well elsewhere (a nice, conservative approach). A more radical approach would look at history and game theory, and examine new ideas. A conservative approach to new ideas, of course, would involve testing them at some level or place other than the U.S. federal government.

There might be advantages to a system in which no amount of money and effort would give anyone more than a small chance of winning an office -- the all-consuming struggle for power would be blunted, and it would automatically devalue incumbency.

A riddle for ET readers: How can this be done? (Hint -- there's already a name for the process.)

Words and ideas I offer here may be used freely and without attribution.

by technopolitical on Sun Nov 19th, 2006 at 05:11:11 PM EST
[ Parent ]
A lottery.

According to Arthur C Clarke [The Songs of Distant Earth] the method "was" first introduced in New Zealand.

Those whom the Gods wish to destroy They first make mad. -- Euripides

by Migeru (migeru at eurotrib dot com) on Sun Nov 19th, 2006 at 05:14:28 PM EST
[ Parent ]
And the prize goes to... Migeru!

A name used in this context is "sortition". The form that makes sense to me is to use a political selection process to winnow down to a group of good candidates, then choose by lot. The mad lust for power, the utility of smearing reputations, of selling out for campaign contributions -- the whole mess -- would be much lessened if no one could have a chance greater than (say) one in twenty of winning, even if they entered the final selection. People might even pay some attention to whether a candidate would govern well.

Words and ideas I offer here may be used freely and without attribution.

by technopolitical on Mon Nov 20th, 2006 at 02:34:30 AM EST
[ Parent ]
There is a problem with using sortition to fill executive offices. A person selected at random may not be capable of doing the job. I seem to recall that was a problem Greek city states found when they tried the system.

If a quality test for eligibility is introduced, then the selection is no longer random. In view of American experience with literacy tests being used to disenfranchise racial minorities I suspect that designing such a quality test for possible Presidents would be highly controversial.

The idea is much more interesting for legislative bodies. However in the modern US that would probably lead to all the legislation being written by lobbyists.

Sortition may be best used in the form of a Citizen jury investigating a particular problem - like the question of electoral reform in British Columbia.

http://www.citizensassembly.bc.ca/public

by Gary J on Tue Nov 21st, 2006 at 06:19:20 AM EST
[ Parent ]
Yes, I think that practical systems (particularly for executive offices) must limit eligibility. The question is How?

Today, we limit "eligibility" to one: the unique winner of an election. Eligibility could instead be determined by a voting process that selected twenty. (Ideally, each of them would have majority support; Approval voting seems like a good mechanism.)

This would have a powerful effect on election dynamics. Smearing a candidate, spending $30 million on an election, putting obsessive passion into the pursuit of power -- none of these could give anyone more than a 5% chance of winning.

The incentives to be less nasty would be powerful, because there would be no single opponent to smear. All of the negatives of conducting a negative campaign against someone would accrue to the campaigner, but only (at most) 5% of the benefit. The politics of personal destruction (a least during elections) would dwindle.

The chance of selecting the "best" candidate would be small -- but any system that could elect Bush must be selecting for something that almost no one really wants.

Words and ideas I offer here may be used freely and without attribution.

by technopolitical on Tue Nov 21st, 2006 at 05:04:39 PM EST
[ Parent ]
I think det nailed it: Any new constitution would likely be far worse than the existing one.  The current one is far from perfect, but I maintain that it works reasonably well.  Those nine high priests, whatever you may say, are a critical check on Congress and the executive.  Bush and the GOP would've done even more damage without them.  America's Supreme Court, you'll recall, was responsible for the decisions in Brown v. Board, Roe v. Wade, etc.  We need more, not fewer, checks and balances.

The beauty of the Constitution is the fact that it is built, as Andrew Sullivan pointed out on Maher's show two weeks ago, to obstruct the American government.  I, personally, don't trust any Congress or president with any more power than they already are allowed.  They have far too much as it is.  A new constitution would only give them more.

And, having read much of his work and (I think) gained a reasonably strong understanding of how he thought, I think Jefferson would agree with me if he could see modern-day America.

Be nice to America. Or we'll bring democracy to your country.

by Drew J Jones (pedobear@pennstatefootball.com) on Sun Nov 19th, 2006 at 12:30:03 PM EST
I agree, especially with the concept of less power in the hands of government being preferred to more.  Look at what happens when one party has control over both houses, the executive, and arguably a strong hand with the judicial. I also can't see a senate based on population.  That's why the house was devised with state population in mind to off-set the power of the senate.  Just because California is a large state with economic advantages, and considerable self-made problems as a result, is no reason to let it or any other populous state have a free reign.  My opinions about these issues are of course somewhat unrelated to the idea of another constitutional convention, but on that issue, I'm not sure the problems are as much with the constitution as with other causes.  After all, there have been 20 plus amendments, mostly with positive results, to keep the old lady up to date.

The oil leaks, in my opinion, can be blamed on situations other than the constitution. The problem with corporate power and irresponsibility is a problem that can be addressed by law within the framework of the current constitution, I suspect.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sun Nov 19th, 2006 at 02:24:56 PM EST
[ Parent ]
That's where the concepts get apart...

for me the Roe Vs Wade story (and I don't mean the content of the ruling) is a typical example how it shouldn't go. For me judges shouldn't have any say in a story like that more than it's constitutional because nothing stands in the constitution that it's explicitly forbidden. They had to look into "penumbral rights" to "privacy" (there is no right to privacy in the US constitution) to grant a green light for at that time hot issue. And create jurispudence.. which opens to anything in the future.

Such an important issue as abortion cannot be left to judges. In Europe LAWS were voted first after debate. Which permitted an ethical debate and a precise regulation (to the difference from the US as it is seen as a private matter). Then a constitutional court can check with with collisions with other laws and clear up eventual details.

In the same way segregation was perfectly legal in the US until the sixties, until 9 judges or less found otherwise...

this is judiciocracy, not democracy

I think as I posted in my second post that Chuckman...

Many Americans do not realize that it was the Parliament of Great Britain against which the early Patriots railed. They saw the British Parliament as acting without the beneficent King's full knowledge, understanding fully that the King's powers were already heavily curtailed by the evolution of British parliamentary government. The idea of the King as tyrant was built up later during the Revolutionary War as a propaganda device, and it has been played on by elementary text books since.

http://www.counterpunch.org/chuckman09162006.html

... is right : in the US the libertarian approach is fundamental despite all appearances. People don't want any "gunmint" : so they have a short document telling how things should be and 9 judges deciding...

by oldfrog on Sun Nov 19th, 2006 at 05:18:57 PM EST
[ Parent ]
Hamilton even wanted the US president to be elected for life, a sort of Germanic elective monarchy. And the convention [for it was a convention until FDR broke it making a constitutional amendment "necessary"] that a president shouldn't serve more than two terms was set by the precedent of George Washington, the first president, who did not run for a third term.

Those whom the Gods wish to destroy They first make mad. -- Euripides
by Migeru (migeru at eurotrib dot com) on Sun Nov 19th, 2006 at 05:25:24 PM EST
[ Parent ]
Check out the NINTH amendment.
by messy on Sun Nov 19th, 2006 at 07:30:36 PM EST
[ Parent ]
The reason that the constitution has lasted so long is that the framers thought that posterity should be protected from people like themselves.

The UNITED STATES of AMERICA is sort of like the EUROPEAN  UNION. International Federalist bodies.

If it wasn't for the equality of Representation of the States in the Senate, there wouldn't have been a constitution.

by messy on Sun Nov 19th, 2006 at 07:29:17 PM EST
[ Parent ]
If it wasn't for the equality of Representation of the States in the Senate, there wouldn't have been a constitution.

This is very true, but there are problems because of it.  I don't think it is likely to be changed however.

by jjellin on Sun Nov 19th, 2006 at 09:53:40 PM EST
[ Parent ]
One more pace into controversy: I suggest that we increase the number of US states. St Louis City and County have pretty much NO connection with the rest of Missouri. It would be very satisifying to create a liberal state of some 1.5 million people and leave the rural areas behind. Hey, they let West Virginia leave!

Kevin

by kevinearllynch (mr_kevinlynch@sbcglobal.net) on Sun Nov 19th, 2006 at 02:10:01 PM EST
You may have better luck moving the whole population out of the country.

Our knowledge has surpassed our wisdom. -Charu Saxena.
by metavision on Sun Nov 19th, 2006 at 05:42:30 PM EST
[ Parent ]
by jjellin on Sun Nov 19th, 2006 at 09:54:43 PM EST
[ Parent ]
with or without its Constitution.  Without the U.S. Constitution, the United States of America doesn't exist.  The fear is that a Constitutional Convention could make our country disappear.  We just don't know what will happen.  Better safe than sorry.  Bill Maher is pretty darn funny.  Sure Franklin and Jefferson would be baffled by the country they created, like founding fathers who fell into a heap after a drunken party and can't remember who they slept with or what they did.  It is what it is.  I think it would take a civil war to get to any significant change in the Constitution at this point.  I'm not advocating that, but I don't see there being any real chance of a Constitutional Convention happening any time soon.  It is WAY too threatening.
by jjellin on Sun Nov 19th, 2006 at 09:26:48 PM EST
Would that be such a bad thing, though, if the US ceased to exist?

One could argue that many of the problems in modern American politics come down to the fact that there are deep-seated cultural and social differences between the regions of the US, and that the various antagonisms created by such differences have been put to use by the wealthy and powerful to sell a faulty bill of goods.  Partition would take the wind out of the sails of this kind of politics, and allow a reorientation of "left" and "right" across the board.  After all, there is no obvious and logical connection between theocracy and corporatism - just look at Iran.

by Zwackus on Sun Nov 19th, 2006 at 11:43:52 PM EST
[ Parent ]
Seymour Martin Lipset wrote an extremely interesting article in the beginning of the 90's, where he characterised American politics as basically quasi-religious, consisting of a multitude of different sects which all shared a guiding text, the Constitution, but disagreed on its interpretation. (Along with a bunch of other interesting insights on so-called American exceptionalism in general.)

There seems to be a kernel of truth to his view, and I am not surprised at all by the dismissal of changing the constitution by the American readers of this blog.

My view: You guys should have scrapped it after the Civil War. Now it is too late, and you will just have to wait for the supertanker to eventually hit something even more immovable to get a more sane, less byzantine governing system.

("American Exceptionalism Reaffirmed," in Byron Shafer, ed., Is America Different? A New Look at American Exceptionalism (London: Oxford University Press, 1991), pp. 1-45.)

by Trond Ove on Tue Nov 21st, 2006 at 01:56:38 AM EST
It seems to me that, at the very least, the US  constitution would benefit from the deletion of obsolete and spent provisions together with the integration of the amendments into the text. This could be done without altering the meaning of the provisions currently in force.

It is of some historic interest what the original apportionment of Representatives was, but is it really needed in the constitution more than two hundred years after it ceased to have effect?

Similarly why have a constitutional power to issue letters of marque (to in effect state sponsored pirates) more than a century after letters of marque were abolished by international treaty?

Most importantly the provisions relating to slavery are all obsolete (except for the prohibition of slavery) and it might be an important symbol to remove them. After all when Alabama failed to delete the segregationist language from its constitution (despite it having no current legal effect), progressives were critical. Why then should similar material in the federal constitution be ignored, just because it has no current legal effect?

by Gary J on Tue Nov 21st, 2006 at 06:49:05 AM EST


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